Building Strong Legal Cases: Emergency and Critical Care Medicine with Kenny Stein

David Smith 00:04
Welcome to the Expert Witness Podcast. I’m excited to be here today with our guest, Dr. Kenny Stein. Dr. Stein is a medical doctor with nearly three decades of experience in emergency medicine, critical care, and internal medicine. He has reviewed over 700 cases, been deposed over 200 times, and testified at trial around 45 times. So, Dr. Stein, it’s a pleasure to have you here. Thank you for joining us today.

Kenny Stein 00:38
Thank you. Pleasure to be here.

David Smith 00:40
The first question I always like to ask is, How did you get into expert witness work? Is it something discussed in medical school as an option? Where did you learn that expert witness work is a possible career path?

Kenny Stein 00:59
It’s a branch of a career. You need to be an expert in an area, such as medicine. First, you need to be a physician or whatever your specialty or expert area is. I was attending a CME (continuing medical education) seminar. Part of the week-long event discussed how the medical-legal system works, including the role of an expert witness. They mentioned that it’s reasonable for physicians to consider being expert witnesses. It helps you protect yourself by understanding what happens in medical-legal cases, where the cases come from, learning how to document better, and how to discuss things with patients so they understand. It enables you to be a witness for both the defense and the plaintiff, bringing more understanding and improving your practice. Secondly, I had a colleague who had done some expert work. He spoke with me about it, and I became interested.

David Smith 02:11
All right, that’s very good. That’s an interesting point brought up at your seminar. It seems to come up quite often that doing expert work makes you that much better at your core competency, your original expertise.

Kenny Stein 02:29
Yeah, not only in doing your job and understanding where pitfalls may come up but also in how to document appropriately. There’s an old saying that attorneys used to use: “If it’s not in the medical record, it never happened,” which is never true. You can’t document everything. Attorneys would tend to say that. Now, with the advent of the electronic medical record, it’s kind of the inverse of that. Many people have pre-templated notes, copying and pasting from one day to the other. So, just because it’s in the record doesn’t mean it really did happen. You have to look at the whole picture.

David Smith 03:17
Yeah, that’s interesting. We experience the same thing in safety, where if it’s not documented, it never happened. We haven’t gotten to the point where things are over-documented yet in the safety industry. So that’s very interesting to watch for. As you were getting into the expert witness field and this type of work, are there any barriers or obstacles you have to overcome, or have you been in pretty high demand from day one?

Kenny Stein 03:48
Before I started, I realized if you’re going to be an expert, you should learn how to be a knowledgeable, professional, ethical expert witness. There’s so much in that area that’s different from the legal aspect and what we learned in medical school. There’s a wonderful organization out of Massachusetts called SEAK (SEAK Experts). They put on seminars on various aspects related to legal work and medical negligence. One was called “How to Bulletproof Your Practice” or something of that nature. As a physician, understanding the medical-legal system, how to document, how to talk to patients so they feel heard or understood, spending time with them. Cases come up not just because of a bad outcome, but because people feel they weren’t treated well or listened to. If you can address that from the front as a physician, sitting down makes people feel you’re spending about three times as much time with them. I attended one of those seminars. They also had one about how to be an ethical professional expert witness. There are many moving parts in medical-legal cases that physicians are not aware of. Four main premises: a physician-patient relationship, no breach of the standard of care, damages occurred, and tying them together with causation. Then there are terms like deposition, cross-examination, direct examination, interrogatories. I learned about these through the SEAK webinar, or at that time, it was in person. They still have in-person and webinars. That was essential. I was introduced to Rosalie Hamilton with Expert Communications, who does a wonderful job helping experts, not just physicians, in different areas learn how to make themselves known to potential clients through websites and expert listings. That’s been very helpful over the years. More recently, Dan Sandman with Sandman Legal, an attorney who also helps with expert witnesses, both from legal aspects and marketing. Revealing how you’re marketing yourself, your contracts, and things of that nature.

David Smith 06:40
Absolutely, that’s great. I’ve done several seminars with SEAK, and they do an excellent job. I’ve been very happy with their training.

Kenny Stein 06:50
They do a nice job, and they’re nice people too. I’ve known them for about 18 years. Yeah, that’s a while.

David Smith 07:02
Very good. Alright, so can you tell us a little bit about the types of cases you commonly work on? Can you give us an example of a case or this type of situation that calls for your expertise? 

Kenny Stein 07:17
The majority of my practice is in emergency medicine. They are in the ERs and get to wear blue scrubs and settle wearing a suit, which is nice. Also in the critical care department in the ICU. Most cases have been related, in one way or another, to the emergency department or the critical care department, not all. For example, someone goes in for a heart attack, myocardial infarction, and an EKG was obtained in the waiting room. It did not get to the physician within 10 minutes, as it’s supposed to. About three or four hours later, someone finds the EKG, the patient’s still in the waiting room, bad things happen, and someone brings up the case. Defense cases involve situations where someone in the hospital, a nurse says something to the family that upsets them. The nurse might say, “Oh, gee, the doctor should have caught this earlier,” or something like that. The old saying, loose lips sink ships, and what the nurse said may or may not have been accurate. Something bad happens to the patient, the family gets upset, and brings up a lawsuit. There have also been cases where I’m asked for a causation opinion. For example, someone went to a pharmacy, the wrong medicine was given. The pharmacy did a problem, and then some bad things happened to the patient. They need a physician to explain those things. Or someone had underlying medical problems, a fall at a nursing home or a place of work, or they were in a car accident. Now they have additional medical problems, and attorneys need someone to help sort out what is due to the normal progression of illness they’ve had all along and what was caused by the accident.

David Smith 09:27
Okay, we see that quite a bit in the type of cases I work on. What was a preexisting condition, and what happened because of this incident that brought us all together? Exactly. So the rest of it is maybe more procedural. What are the best practices that people should be adhering to, and did they or did they not do that type of thing?

Kenny Stein 09:52
Correct. And how well was this documented? The medical records are part of a story. Not everything that happens gets written down. Not necessarily everything that’s in the record happened; it was just copied and pasted. Then there’s the whole metadata. There’s the printed out version of the medical record. Tons of additional information that nurses, pharmacists, or other people may enter into the medical record that doesn’t get printed out when you see them. When you’re looking at the medical record after the case, you’re looking at a PDF on your computer. And how it looks now on your computer is not the same as how it looks in real time when the physician is looking at the computer on their screen. Computers sometimes enter back data, so you might be looking at a case where the event in the ER occurred on January 1, and there are some lab tests that came back two weeks later on January 15. When they print out the record, sometimes it looks like those labs from January 15 are there during the January 1 visit. Well, they obviously in real life couldn’t have been right. But when they print out the record, it looks that way. There are also little things like best practice warnings that pop up on the computer in real time, and those don’t come out. So the record is one part of the story. When you talk to the families, they give one view of what happened, which may not be the same as the record. Then the physicians and nurses, medical staff, or respiratory therapists involved give deposition in a slightly different way. I kind of think of it as a triangle: the records, what the family says, what the medical professionals say, and somewhere in there, maybe closer to one of the points and the other is the truth. As an expert, all you can do is try to help understand what happened and then explain it to the attorneys. First off, and then if it moves forward, be able to explain it to the opposing attorneys, the judge, the jury. And sometimes if the family just wants closure, they want to know, it’s not necessarily if I win or lose the case, I want to know what happened to my loved one and why. So all of those are kind of integral parts of the case.

David Smith 12:56
Absolutely, that’s a great analogy, looking at the different sides and the different stories that you get was kind of a triangle. Assuming that the actual truth is somewhere within that triangle, I like that. 

Kenny Stein 13:12
The actual truth of, did this occur at exactly this time? That’s also in question. Are we going by the clock on the wall, are we going by the wristwatch on Apple Watch if someone has, are we going by the computer time? The time things are entered in charts are always some amount after the event occurred. It might be a few seconds after it occurred, typing a little bit in the chart, finishing it an hour after your shift ended. Doesn’t mean there’s anything abnormal going on. Sometimes you just get busy, and the most important part of emergency medicine or any medicine is caring for the patient, always comes before documentation. If you’re limited in the number of people available, take care of the patient first, type this stuff in later. If you have a code going on, hopefully, you have someone who’s recording things in real-time on the computer while it’s happening.

David Smith 14:27
Right. Yeah, very good. Earlier, you mentioned reviewing over 700 cases. I imagine in those 700 cases, you’ve worked with various attorneys. Some more experienced, others less so in the type of work you can assist with. Any words of wisdom for attorneys in medical negligence work or things they should know going into it?

Kenny Stein 15:00
Sure, I’m a doctor, not an attorney, but I’ve been around the block a couple of times. For physicians and attorneys entering medical legal work, realize there’s nuance and specific rules. These rules vary from state to state or federal court, and missteps can lead to case dismissals. Team up or learn from someone in your area to understand the local rules and differences between federal and local court requirements. Clearly define the questions you want answered when consulting an expert. Be open to the expert’s opinions. Good attorneys appreciate experts highlighting potential weaknesses in their cases. When I advise attorneys, I use a Clint Eastwood reference: I’ll tell you the good, the bad, and the ugly about the case. It’s better to know the challenges upfront rather than after investing significant resources.

Another consideration is when requesting records from the facility. Obtain the complete record without filters to include communications between nurses and physicians. Request everything related to the patient and ideally, have it OCR recognized for easy word searches. Label or index the records, making it efficient for review.

For plaintiff’s attorneys, identify the main reasons behind bringing the case. Is it for financial compensation, recognition of negligence, or seeking an understanding of what happened? Sometimes, families pursue legal cases for closure, but it may not always be the best approach to obtain information.

As an expert, I sometimes speak with families if the attorney requests it. Establishing a safe word with the attorney is crucial in such conversations. Emotions can be charged, and if the discussion becomes unproductive, the safe word signals the need to exit the conversation without being rude.

David Smith 20:16
Imagine that. Those are great tips for attorneys and experts. 

Kenny Stein 20:28
One thing for attorneys: find out the specific questions for your expert. Are you wanting them to opine on causation, on the standard of care, or both? Who are the parties involved that you want opinions about? Or do you want to leave them more open? And let the experts tell you? Yeah,

David Smith 20:47
I tend to err on the side of giving me all the information that you have. And let me figure things out, rather than giving me bits and pieces when I ask for it, so totally agreed. So in the cases that you work on, do you find that most of them are local? Do you work nationwide? Globally? What’s typical for someone with your expertise?

Kenny Stein 21:15
Okay. So working on a defense case will be nationwide, anywhere. Working on a plaintiff case where it’s a medical negligence case? If the allegation or question is that a doctor or a hospital did something wrong, myself and many experts try not to do that right in the neighborhood where you live. If I worked at a hospital, it would be kind of problematic if I was testifying against the hospital I worked at. Usually, I will not testify for a medical negligence case against the provider within 80 miles or so of St. Louis. One, you may know those physicians; they may be referring patients to your hospital. You never know when you may knock on someone else’s door looking for a job. But I’ve reviewed cases in 40 different states, plus the District of Columbia and Puerto Rico. The vast majority that’s come across my desk is plaintiff. I’m always happy to give more defense cases. But what comes across my desk, the vast majority is plaintiff cases.

David Smith  22:32
Yeah, very interesting. So, when it comes to expert witness work, clearly, this is different than actually practicing medicine. What is it about the expert witness work that you really enjoy?

Kenny Stein  22:58
It’s like reading a detective novel. Sometimes, the end of it, usually, you know how things ended. But it’s a question of how things get there. It’s kind of like some movies where they show what finally happened at the end, and they build up to that point. Looking through things, piecing together, was there a misunderstanding or a vital piece of information the doctor missed, leading to the wrong conclusion? So, it’s reading through all that. What happened? Why did it happen? How did it happen? Did the problem with medicine and habits practiced cause the bad outcome? Was a bad outcome inevitable, or could it have been changed? Plus, it’s nice that it’s flexible. Right now, I’m at home, looking out of the cul-de-sac. I can be on vacation somewhere else and still do the work. Those are some of the parts of it that I enjoy. And it’s a reasonable income. Can’t deny that.

David Smith  24:11
Yeah, that’s interesting. You say that it’s flexible. Coming from a doctor’s perspective, that makes sense. But when I’ve done some other podcasts, a lot of engineering-type experts dislike how schedule-oriented expert witness work can be. It’s interesting that you find it much more flexible than your regular work, where others see it exactly the opposite.

Kenny Stein  24:46
And it depends. So, for example, there might be a trial. Usually, two trials or multiple months out, and I’ll ask the attorneys if possible, let me know before your schedule, only the trial. I can, you know, provide some dates I am or I’m not available. Sometimes they don’t have that ability. It’s like, nope, the court just tells us this is what it’s going to be. For depositions, usually, they say, Hey, can you give me some dates when you’re available? I can be home or not. As an expert, be a bit wary if it’s an attorney you’ve never worked with, contacting you saying they’re in a rush and need you to work on things immediately, have a report ready by next Tuesday, because of statutes or deadlines. Sometimes it happens, and we’ve all been in situations where a deadline comes up. But if it’s someone you don’t have a relationship with, even if you do, it’s always safest if they have a big deadline, get a retainer ahead of time. The first time working with any attorney on any case, always get a retainer ahead of time. Surprisingly, some attorneys, after hearing my opinions, haven’t wanted to pay, so be warned. I’ve had a couple of times when people have been in a real rush, and oh, our accounting department’s closed, I can’t get the check to get you the report, and then I’ll pay you afterward. No, there’s Venmo, PayPal, you can pay by credit card, you can sort it out later. So, for the house, take and go. Fool me once, shame on you; fool me twice, shame on me. So protect yourself. Absolutely.

David Smith  26:37
Absolutely. And if they really need it, they’ll figure out a way to make it happen.

Kenny Stein  26:44
Yeah, I’ve had a couple of absolutely impossible. Payroll along to your accounting one sent out a check for three weeks. But we need the court on Monday. And as soon as I received the payment, I’ll give you your card. Miraculously, the payment arrives.

David Smith  26:58
Miraculously? Yep, I’ve been there as well. Very good, good information. So maybe we’ve talked about this a little bit. When you’re reviewing a case and find out that you’re definitely on the wrong side, or whoever retained you doesn’t really have a case, what do you do in those situations? Or how do you handle it with the attorney?

Kenny Stein  27:24
So, as I said, I tell the attorney upfront, Hey, I’ll tell you the good, the bad, and the ugly about the case. Send me a retainer for three hours, my time. I’ll look at the records, won’t go over that three hours, leave time for us to talk. If I need more time, we’ll talk, and then we’ll both decide whether we’re on the same side. I tell them, I say, hey, I’ve looked at the records, and either I agree with you, and here’s why. Or I disagree, and here’s why. The alleged breach of the standard of care, the thing you think they did wrong, really wasn’t wrong. Or it’s not quite as you pictured it, or it didn’t cause the problem. For whatever reason, if I don’t think it’s a good case, I’ll tell them. Sometimes what happens is, look, this really comes down to one of these terms that bring anxiety and fear to many physicians, inborn errors of metabolism, one of these weird nebulous categories. Some geneticists, but not me. Well, if something comes up in an essay, you know, I think there may have been a problem, but you really need an expert in this area. What I usually say is, you know, it’s not in my best interest to turn away business. But I think you’d be better served with this expert, or I think you most likely don’t want to file this case. You try to get that before you get too deep into the record. Two, three hours of work on it, and then you kind of cut ties there. Now, sometimes, you’re in a case, and you’re working on things. As I always put at the bottom of my report, I reserve the right to amend or modify my opinions based on new material that may become available. All of a sudden, from an interrogatory or a deposition, there’s a vital piece of information that comes up that totally changes the way the case looks. In that case, I’m upfront and I tell the attorney, this is the new information. This is what that means. Accordingly, these are the opinions I’m able to give. These are the opinions I’m not able to give. Or it’s totally changed, and I think you may just want to drop the case. If it’s a defense case, I think this is very problematic for your physician that you’re representing. You may want to rethink your strategy and whether or not you want to settle. Now, all those determinations about whether to settle or not, those are the attorney’s decisions. I think all I can do is give my input as a physician who’s reviewed a lot of cases.

David Smith  30:23
That’s one of the nice things about this type of work. It’s not the expert’s job to win or lose a case. That’s our job, just to explain the science, explain best practices as they exist, and let the attorneys argue who gets to win and who gets to lose. So yeah.

Kenny Stein  30:43
One of the things, not exactly to the question, but you read some depositions, received videos, some depositions, and some people from very fine, highly regarded institutions, professors, chairs of departments. They know the medicine in and out, but they’re not able to communicate it to a judge and a jury of laypeople. So, you can be extremely knowledgeable, but if you can’t get that knowledge across in a way that people can understand, it’s not really helpful. It may actually be unhelpful. I have a little poster of Einstein up on my wall that says, “If you can’t explain it simply, you don’t understand it well enough.”

David Smith  31:33
That’s absolutely true. One of the things that someone recommended to me at one point, and that I recommend to everybody I talk to that does this type of work is to join a Toastmasters group and go and practice speaking regularly. They usually have weekly meetings, and, you know, you got to find the right group. Some are better than others. But once you find the right group, that consistent practice and training on public speaking and explaining technical issues to usually there’s a lot of non-technical people in these groups, in a way that they can understand it is extremely helpful.

Kenny Stein  32:17
I found I haven’t done one of those, and yours might be fun to go back.

David Smith  32:23
Alright, so we talked about things that you liked about expert witness work, but we know that no job is perfect. Is there anything about the expert witness industry or the work itself that bothers you or rubs you the wrong way, or that you have a hard time with sometimes?

Kenny Stein  32:43
Yeah. So, you know, as the legal system works, there’s always going to be two sides. You have to have someone who’s bringing up a complaint and someone who’s defending against it. And sometimes attorneys will call you and, based on limited information from what they’ve heard from a family or what they intuitively think, well, isn’t it true that medicine should work this way? So if someone’s put on a blood thinner medicine and they end up having severe bleeding, bleeding into their brain or their intestines, and the attorneys are like, “Well, why do they have them on the medicine if they only had to have them on the medicine, like?” Sometimes people need to be on blood thinners and apply coagulants. And I played clips, and sometimes people bleed. But that’s not what does that does not mean it was wrong to give them the medicine; it may or may not have been. So working with some attorneys who are very, very stuck in their viewpoint and unwilling to hear other opinions, that can be difficult. It’s also always preferable when I can get involved in the case. If it’s a plaintiff case, before they decide to file, and, you know, that’s the time to have someone look through and say, “Hey, what are some of the strong points, the weak points?” Sometimes I’ve had attorneys who the case has been going for two years, they’ve taken tons of depositions. The time for discovery is close. You can’t get any additional information from the medical records. And they want an expert who only agrees with them. Looked at the records. Thank you, I did get my retainer. These are my opinions. And I’m sorry, I don’t agree. On the other side, there are some attorneys on the opposite side. Whether you’re plaintiff or defense, you know, whatever the opposite side is, and some of them can be less than respectful. And they realize that at a deposition, yelling, screaming, and ranting is not going to come off as visible. In the Depo, they try to intimidate. There was one case where we were in a large room giving a deposition and then they put us into a smaller room. So in that smaller room, there is a small little coffee table desk. And then there’s like a business professional’s desk. So I go in the room and I sit at the business professional’s desk, and the attorney who’s taking my deposition says, “No, no, no, I sit in that desk that has the higher chair, you sit over there.” She has the lower chair. These kinds of power game type things.

David Smith  35:32
Good enough. That’s interesting. A couple of points on that. I’ve found, as you mentioned, that attorneys are usually much nicer in a trial than they are in a deposition. Maybe it’s because of the judge’s presence. But there’s also something I experienced that was really enlightening. It’s about the act attorneys put on to try and elicit a response. I was sitting in this deposition, and you know, they asked the same question four or five times. My attorney objected, saying “asked and answered,” and they went back and forth for like three or four or five minutes. They were getting heated, yelling, arguing, and pounding on the table. I was just sitting there, and it was one of my first depositions too. So I was like, “Well, what’s going on, guys?” Finally, they figured it out and moved on. After the deposition, they were like, “Hey, you want to go get lunch?” to the other attorney. I was like, “Well, what is going on here? You guys were just at each other’s throats.” But you know, it’s really just… I don’t want to say an act, but they’re doing their job, trying to get the best results for their clients. Sometimes that requires being aggressive, and sometimes not. But don’t let the way the attorney acts during a deposition be your only impression of who they are as a person.

Kenny Stein  37:14
Correct. Or what their thoughts are about you. They may hold you in high regard. They just don’t do that at the Depo. I had a similar circumstance where attorneys from out of town came up and they were yelling and screaming at each other at the Depo. And then, just being calm and quiet. And when it’s all done, they’re like, “Hey, guys, Hey, Tommy, ready to go play golf?” And they drove up to the Depo from a different state. And they had a friend who was in our city, and they all went to play golf afterwards. My reaction was the same. “You guys play golf together? Oh, yeah, we’re best friends. You know, this is all just part of the work experience.”

David Smith 37:47
Yeah, that’s, I think that’s an important thing for experts to recognize: attorneys are just people. But they do have a job to do, and they do their best to do a good job.

Kenny Stein 38:02
So the long story is, as an expert, try not to be combative with the attorneys during depositions or trials. And it’s not always easy. There are some attorneys who are really trying to push your buttons, and it doesn’t reflect well if you fall for it and respond aggressively. Yeah, try to be above that.

David Smith 38:34
That’s great advice. That’s great advice. All right. So we talked a little bit about depositions and trials. And I think a lot of times those are portrayed, at least in the media, as very serious and well-planned-out events. But in my experience, that’s not always the case. So I’m curious, have you ever had a particularly lighthearted or funny interaction during a deposition or trial that you could share?

Kenny Stein 39:07
So the lighthearted one is actually going to tell that story about the people playing golf. The surprising thing is, as an expert, you may have reviewed the case and come up with opinions and thoughts, but you have to listen to the questions. Really listen carefully. Sometimes they try to ask you 20 questions like, “Is grass green?” Yes. “Is the sky blue?” Yes. “Is it snowing outside today?” Yes. “This doctor obviously really screwed up.” Yes. No, no way. That’s not what I meant. You know, so listen to the questions. But sometimes you’re asked a question that your attorney never thought of and you never thought of. So, for example, there was a case of a patient. Part of the allegations were whether an internal medicine doctor in the hospital should have told the surgeon that, at this point on Wednesday, the patient is now stable and can go to surgery. And the attorneys’ thought was yes, the doctor absolutely should have told them that the patient needs to go and is stable enough to have surgery. So the question that came up to me in the deposition was, “Okay, Dr. Stein, well, once this date, you know, Wednesday or whatever it is, came around, the surgeons no longer felt that they needed to operate on the patient. So whether the doctor, the internal medicine doctor, did say, ‘The patient is stable, go to surgery,’ or they did not say, ‘The patient’s stable, will go to surgery,’ if the surgeons weren’t going to do the surgery, did it in any way whatsoever affect the outcome of the patient?” To which the answer would be no. All you can do as an expert is to answer honestly, as best as you can, based on the information you have available.

David Smith 41:16
Yeah, absolutely. So if you were, even if you’ve had a lot of good tips today for experts and attorneys, if you were to give someone who had just been retained on their first case one piece of advice, what would it be?

Kenny Stein 41:37
Okay, so I’ll give you the top five. First, always obtain a retainer ahead of time. Never guarantee, when you’re first told about a case, that you’re going to give a favorable opinion. You have to look at the facts and base it on the facts, not on the summarized, abbreviated version that the attorney gave you. And if you’re trying to get advertised as an expert, a communications expert, [](, Rosalie Hamilton, and Dan Salmon, ask them to help you with your marketing. Another thing is to try to put together a chronology as best as you can, even if it’s just a simple version of what happened. Sometimes the records come in a jumbled order, so try to get a logical chronology that you can put together to help you understand and explain things. Just be honest and present the facts as they are.

David Smith 42:44
Absolutely. I love it. So when you are writing a report or testifying in a deposition or trial, what do you find makes a good expert or helps the expert be persuasive? That’s different from the tips that you’ve just given.

Kenny Stein 43:07
So, I don’t know if “persuasive” is the best word, but rather the ability to explain things. The job of an expert is not to sway the jury, but to explain the facts. The judge and the jury are the ones who form their own opinions. As an expert, your job is to explain things as clearly as possible. If there are opposing experts, it is important to politely and professionally acknowledge their arguments. For example, the opposing side may argue that this was reasonable care based on XYZ and cite an article, or the defense side may claim that no doctor would ever do XYZ. In such cases, you should present your position and, if allowed, examine the arguments of the opposing experts. If you agree with certain points, it is acceptable to admit it. However, you should also explain why you disagree. Simply stating disagreement without providing a rationale is not sufficient. You should support your reasoning with research or clinical experience.

David Smith 44:30
Yes, it is always good to have a basis for your opinions rather than relying on statements like “I just know” or “because I said so.”

Kenny Stein 44:42
It’s not always the case that a doctor does everything right. There may be instances where they did something correctly, and that question may arise. For example, the question may be asked, “Doctor, can you tell me some things that you agree with that the doctor did? What did the doctor do that was appropriate?” In such situations, you have to be honest. If you are on the plaintiff side, you can mention what the doctor did that was appropriate. If you are on the defense side, you may be asked, “Doctor, what are some things that you don’t think were a breach but you disagree with or find incorrect about the doctor’s actions?” In these cases, you should be honest and provide your opinion.

David Smith 45:26
Alright. So we find that most experts would like to be involved in more cases. So what have you found to be the most effective marketing technique or the best way to get new cases?

Kenny Stein 45:41

So earlier in my career, a lot of my cases came from being listed in the SEAK expert witness directory. They have a print one, and it’s online. There’s a LM expert witness, I think there are websites now [](, I think, national directory of expert witnesses. Those were the ones, plus having a website. Mine is Those were helpful. Now, I still do some advertising. And then they always bring those up at the depositions and show you the photographs, and people would page. But really, most of the cases I get now are from repeat customers or attorneys who are on listservs or chats where they kind of say, “Hey, do you know any good expert in this area?” And one attorney will say, “Hey, Dr. Stein did a fine job, you may want to contact him.” And I’ve actually been fortunate enough that at the end of the case where I was on the plaintiff side, and the case is closed, the defense attorneys have come up to me and said, “Hey, you did a good job. Will you work with us on a case?”

David Smith 46:56
Yeah, fine. That’s not terribly uncommon. If you do a really good job on a case, that’s very helpful. So, well, what has adding expert witness work to your offerings done for your life and your business? Coming from the medical side,

Kenny Stein 47:18
I tell the attorneys, when we’re working on the case, at the end of the case, I always say, “My kids’ college fund says thank you.” So it has definitely been financially helpful. And as I said, it’s very nice to have the flexibility. This photograph is La Jolla Cove out in La Jolla, California, near San Diego. So I could go out there, bring my laptop, and in the heat of the day, if it gets too hot in San Diego, you know, be in the room and work on cases. So it’s a lot of flexibility. And, as I said, I enjoy it all. When you ask about things I least enjoy, one of the other things is reading depositions. Reading depositions can be quite painful. It can be a slog for sure, especially when they ask, “Who was your girlfriend in fifth grade?” All the previous information that has nothing to do with the case?

David Smith 48:13
Absolutely. I totally understand that. All right, so for any attorneys that might be listening, if they want to hire you for a case, what’s the best way for them to find you to get in touch with you? Sure.

Kenny Stein 48:29
So my website is er, like emergency room, My email is And on LinkedIn, you can just look me up as Kenny Stein at LinkedIn.

David Smith 48:54
Alright, that’s, that’s great. Dr. Stein, thank you so much for being here with us today and sharing your thoughts and opinions and experiences. It’s been very enjoyable. And I think it will be great for other people to learn from you. So thank you.

Kenny Stein 49:11
It’s a pleasure. Thank you for having this podcast. It’s been delightful listening to some of your other guests. And thank you for the invitation.

David Smith 49:21
All right. Take care. Take care.


Go to to learn more about Kenny and his work as an Expert Witness in Emergency Medicine, Critical Care, and Internal Medicine.

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