How to Retain an Ophthalmology Expert Witness
Retaining an ophthalmology expert witness works best as a structured, early process: run a conflict check, define the scope of review in writing, send a complete set of records, and build the expert's timeline around your discovery deadlines. Attorneys who engage an ophthalmologist while the case theory is still forming get more value than those who call after positions have hardened.
This guide walks through each step of that process, from the first inquiry to the preliminary review, and explains what a well-run engagement looks like from the expert's side of the table.
Engage Early, Before the Theory Is Fixed
The most common structural problem in eye injury and ophthalmic malpractice litigation is late engagement. An ophthalmologist reviewing records eighteen months into a case can only react to a theory that has already shaped discovery. An expert consulted early can tell you whether the medicine supports the theory at all, which records will matter, what imaging exists that has not yet been requested, and which examination findings will be pivotal. Early input often changes what you ask for in discovery — for example, requesting optical coherence tomography (OCT, a cross-sectional retinal scan) in its native digital format rather than as a printed summary.
Early engagement also protects against irreversible gaps. Visual field tests, retinal imaging, and biometry measurements taken close to the incident may be the only objective record of the eye's condition at the relevant time. If nobody asks for them, they can be purged under routine retention policies.
Step One: The Conflict Check
Before any substantive discussion, provide the names of the parties, the treating physicians and facilities involved, and opposing counsel. The expert checks these against prior and current engagements and treatment relationships. A conflict check protects both sides: it prevents wasted effort, and it avoids the disqualification motions that follow when a conflict surfaces late. Do not send records or discuss case facts in detail until the conflict check clears.
Step Two: What to Send First
An efficient initial packet is short. It typically includes:
- A one-to-two-page case summary from counsel: the parties, the incident or procedure at issue, the claimed injury, and the specific questions you want answered.
- The core ophthalmic records — office notes, operative reports, and imaging — rather than the entire file.
- Key dates: incident date, filing deadlines, and expert disclosure deadlines.
The full record set comes later, once scope is agreed. A detailed checklist of what a complete ophthalmic record set contains is available at What Records to Provide.
Step Three: Define the Scope in Writing
A written engagement should state whether the expert is retained as a consulting expert (non-testifying, generally protected work product) or as a testifying expert, the questions to be addressed — standard of care, causation, damages, prognosis, or some combination — and the deliverables: verbal impressions, a written report, deposition testimony, or trial testimony. Scope matters because the analysis differs. A standard-of-care opinion asks what a reasonable ophthalmologist would have done; a causation opinion asks what actually produced the visual outcome. These are separate questions, and conflating them weakens both.
Step Four: Plan the Timeline Around Discovery
Work backward from your expert disclosure deadline. A thorough record review takes time, and the review frequently identifies missing records that must then be subpoenaed — a cycle that can add weeks. Building in time for a records-gap request, a draft-opinion discussion, and report preparation before the deadline is far better than compressing everything into the final month. If an independent examination is contemplated, scheduling and any dilated testing add further lead time; see Preparing for an Ophthalmology IME.
What a Preliminary Review Can Tell You
A preliminary review — often a few hours with the core records — can answer the questions that determine case strategy: Is the claimed visual loss documented objectively, or only by self-report? Does the timeline of structural findings fit the alleged mechanism? Are there pre-existing conditions, such as glaucoma or macular disease, that complicate causation? Is this a case where the medicine is genuinely contested, or one where the records largely resolve the question? An honest preliminary answer, including "the records do not support this theory," is among the most valuable things an expert can provide, because it arrives while counsel can still act on it.
Key point: The order of operations matters — conflict check, focused initial packet, written scope, then full records. Skipping steps costs time later, and engaging early preserves evidence that cannot be recreated.
What Attorneys Should Provide
At retention: party and provider names for the conflict check, a concise case summary, the referral questions, and all deadlines. After scope is set: the complete ophthalmic chart, native-format imaging, prior records establishing baseline vision, and any pleadings or expert reports already served. Dr. Shomer accepts record review engagements nationwide, with in-person examinations available by arrangement.
Frequently Asked Questions
When should an attorney first contact an ophthalmology expert?
As early as practical — ideally while the case theory is still being developed. Early consultation shapes discovery requests, identifies imaging that should be obtained in native format, and flags records that may be purged under retention policies if not requested promptly.
What information is needed for a conflict check?
The names of the parties, the treating physicians and facilities involved, and opposing counsel. No substantive case discussion or record transfer should occur until the conflict check clears, which protects both counsel and the expert.
What is the difference between a consulting expert and a testifying expert?
A consulting expert assists counsel confidentially and generally is not disclosed; the work is typically protected. A testifying expert is disclosed, produces a report subject to discovery, and testifies at deposition or trial. The engagement letter should state which role applies, because the role can change how the work is documented.
Can a preliminary review be done before full retention?
Yes. A focused preliminary review of the core ophthalmic records can often tell counsel whether the medicine supports the theory, what records are missing, and whether the claimed vision loss is objectively documented — information that is most useful before positions harden.
Educational information only. This page provides general information for attorneys and other medical-legal professionals. It is not medical or legal advice, does not address any particular case, and does not create a physician-patient, attorney-client, or expert-client relationship. Opinions in any matter are formed only after review of the specific records, examination findings, and applicable literature. Past engagements do not guarantee any result.
Board-certified ophthalmologist; Adjunct Associate Professor of Ophthalmology, Keck School of Medicine of USC; active California Qualified Medical Evaluator. Full biography · Curriculum vitae
Published August 2, 2026 · Last substantive review August 2, 2026 · Medical reviewer: Marc H. Shomer, MD, PhD, QME
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