It will be the defendant's expert and the plaintiff's expert, plus the chart and your credibility that combine to convince the lay jury.

Your expert is going to argue the merit of your care. And if the expert has doubts, it is likely the insurance company will argue for a settlement and avoid trial. While practices vary with insurance companies, they often go out of their way to get unbiased opinions from the expert.

The plaintiff's expert is another matter. In one of the stranger and most disappointing aspects of trials, it seems many will say almost anything. This extends to well known figures, leaders, and chairmen of programs. From omission of the impact of important facts, to describing interpretations of films in new ways, to selection of one method of practice while ignoring other common methods of practice, to statements no resident could get away with on rounds, they often twist the standard of care beyond recognition.

The effect, in the words of an experienced insurance company case manager, is that expert witnesses usually cancel each other out.

Well, how is the standard of care established? The best answer is with difficulty. Much will depend on your testimony, your demeanor, and your records. We deal with the courtroom issues elsewhere, but there is a great deal you can do in the records to make the standard of care you practiced under hard to ignore. And that may well solve the problem of cancelled expert witnesses, tipping the courtoom judgments in your favor. It is of paramount importance to remember you are winning that fight now, with each consultation and each clinical note.

If the case appears routine, without complications or bad results, good clinical note taking principles are probably enough. But with clinical decisions that others would do differently, with complications, with bad outcomes, or when facing worrisome patients, you need extra measures.

Establish the standard of care with a good consultation, and go outside your group if possible. This shows your effort to stay in the standard of care, and it puts another opinion in the record that favored your approach. Of course if the other opinion doesn't agree that may wave you off the case or call for broader consultation.

But clear additional opinions in the chart from independent consultants will very likely make the case less palatable to a plaintiff's attorney. And it can place another expert view of the standard of care in the courtroom, whether by records or in the witness box. This is a powerful tool you can only use while you care for the patient, and then the opportunity is lost.

Conversely, if other opinions in the record cast doubt on your course, it is important to resolve this in the record. If that consultant or treating physician is not clearly persuaded by your line of reasoning or literature they did not consider, another opinion is even more important. Sometimes fights erupt in the chart. Be sure this is clearly resolved; it is a red flag for the plaintiff's attorney.

In conclusion, the standard of care is crucial to your defense but hard to establish in a courtroom due to dueling experts that too often cancel each other out. So build the standard of care into the chart with your careful notes and with independent consultations in cases that have warning signs.

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