Why a Google Search and an Ethics Opinion Will Not Clear an Expert Witness Conflict

I sat in on a webinar for expert witnesses this week, and one of the audience questions was simple: how should an expert handle conflict checks? The answer given was to read up on the ethics guidance and search online, through blogs and articles, for the parties in the case.

That is a reasonable place to start. It is not a conflict check. Ethics guidance tells you what a conflict is. An online search tells you what is public. Neither one tells you whether you have a conflict on this case, because the facts that decide that question are not on the internet. They are in your own history.

What ethics guidance can and cannot do

Most of the conflict rules people find when they search are written for lawyers. ABA Model Rule 1.7 and the state versions of it govern when an attorney can take on a client. They do not bind a nurse or physician expert, and they do not answer the question a court asks when opposing counsel moves to disqualify one.

For experts, the test comes from case law. In Koch Refining Co. v. Jennifer L. Boudreaux M/V, 85 F.3d 1178 (5th Cir. 1996), the Fifth Circuit asked two things: was it objectively reasonable for the first party to believe a confidential relationship existed with the expert, and did that party share confidential or privileged information. Both are questions about what happened between you and a lawyer. No ethics opinion or blog post can answer them for you. Only your own records can.

We walked through that test, and the places conflicts hide in medical cases, in Expert Witness Conflict Checks: How to Clear a Case Before You Open the Records.

What an online search will miss

Searching the defendant facility, the treating providers and opposing counsel is worth doing. You may learn about a prior lawsuit, an ownership change or a news story. But the conflicts that actually get experts excluded rarely show up in a search:

• The call that never became a retainer. Defense counsel phoned you about this case last spring, described their theory and sent a few pages. There is no public record of that call. There is only your memory, your inbox and your notes.
• Your own employment dates. A weekend PRN shift at a sister facility during the incident window is not on any blog. It is on your CV, and opposing counsel will read your CV line by line.
• The parent company. Nursing facilities and hospital groups often operate under separately named entities. The defendant in the caption may share an owner with a place you worked, under a name that looks nothing alike. A search for the defendant’s name will not surface the place you worked.
• Your prior reviews. Cases you reviewed but never testified in, especially ones that settled, usually leave no public trace. You may have already reviewed records involving this facility or these providers.
• Relationships with the treaters. Being asked to criticize someone you trained with or worked beside is a credibility problem, and nothing online will flag it for you.

A conflict check that actually holds up

A conflict check that holds up at deposition does three things. It compares the full caption against your private history, it covers the companies behind the names, and it leaves a dated record.

1. Get the whole caption first. Every named party, every facility, the treating providers, opposing counsel and the dates of care. Ask before any records are sent.
2. Check it against your own case history. Every case you reviewed, consulted on or testified in, which side retained you, and every contact from the other side on this matter, including calls that went nowhere.
3. Check it against your employers and dates. Every facility you worked for, with start and end dates, compared against the incident window.
4. Check the owners, not just the names. Look up the parent and management companies for each facility in the caption and for each place you worked.
5. Then search online. This is where the webinar advice fits. It is a useful last step for anything public you may not know about.
6. Write it down. Record what you checked, what you found and the date. If something comes close, tell the retaining attorney in writing and let them decide.

If opposing counsel asks how you screened the case, “I read the ethics rules and searched online” is a weak answer. “I checked every party against my case history, my employment dates and the facility ownership, and here is the dated result” is a strong one.

Why we built a tool for this

Steps 2 through 4 are where memory and spreadsheets fail. After a few years of reviews, several employers and facilities that changed hands, nobody can hold all of it in their head. That is why we built ConflictPro, conflict check software for expert witnesses. It runs the check against your case history, employers, facility dates and the companies that own those facilities, and it writes a dated Cleared, Soft Flag or Hard Conflict result to the case. If there is no history on file, it says so instead of calling the case clear.

Want to test your own eye first? Try the Conflict Challenge: five incoming cases, a short history and two hidden conflicts.

How Med Legal Pro helps

Every expert we place is screened for conflicts before records change hands, so retaining counsel is not the one who finds the problem halfway through the review. We work with attorneys on both sides in medical malpractice, personal injury, nursing home and wrongful death cases. Call 844-633-5345 or submit a case.

This article is for informational purposes only and is not legal advice.