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Virginia: Medical Malpractice Expert Bias – a Lawyer’s Impeachment

Virginia: Medical Malpractice Expert Bias – a Lawyer’s Impeachment

In the medical malpractice lawsuit of Marshall v. Moniz, No. CLO8-2018 in Circuit Court for York County and the Town of Poquoson, Virginia, seeking $12,000,000.00 in alleged damages, Defendants have hired a Massachusetts doctor, David W. Rattner, to testify about the “standard of care” here in Virginia. Among other things, Defendants hope to impress the jury by Dr. Rattner being a Harvard doctor with a big resume.

Defendants also hope to keep from the jury in Marshall that Dr. Rattner himself has been sued successfully unto settlement recovery for medical malpractice in Massachusetts. Defendants have moved in limine requesting the Judge to exclude from evidence at trial Dr. Rattner admitting that around 2004-2005 he operated on the wrong site of his patient; that he was sued for his mistake; that approximately $1,000,000.00 was paid to the victim patient; and that the Court record of his case has been sealed from public view.

Conversely, Plaintiff argues that such evidence of mistake by a “standard of care” expert is relevant and even material to the jury in Marshall evaluating the credibility of Dr. Rattner from standpoints of bias, proficiency and/or otherwise. Historically, Dr. Rattner testifies in favor of Defendants at least 85-90% of the time, and is not happy and even has repressed about having been sued by a patient for medical malpractice.

Tellingly, Defendants in Marshall cite no Virginia case excluding the admitted medical malpractice, huge payment, record sealing, and personal humiliation of an expert. Instead, Defendants cite Virginia authority excluding “prior bad acts” of the defendant on “collateral” matters, and just overgeneralize them as supposedly pertaining to any “physician”. E.g., Graham v. Stottlemeyer, 268 Va. 7, 13 (2004).

Significantly, another medical malpractice cited by Defendants, Smith v. Frenkel, No. L03-2784 (Norfolk 2004), underscores the material distinction on this point between a “party” and an “expert”: the Order obtained by Defendants’ counsel in Smith expressly was based on “the representation that the defense does not intend to elicit standard of care testimony from Dr. Frenkel” (emphasis added); whereas conversely in Marshall, the defense intends to elicit “standard of care” plus “causation” testimony from Dr. Rattner. Defendants’ counsel impliedly concedes in Smith that a “standard of care” and “causation” expert committing a mistake, a huge payment being made for it, and being so self-conscious as to a sealed record, is not just a “collateral” matter, but rather is a core one going to credibility, bias, proficiency, etc.

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