If you wanted to know about rocket ships, who would you consult: your next-door neighbor, or a NASA engineer? Unless your neighbor has some remarkable qualifications, you would probably pick the engineer. Why? Because presumably the right information is important to you, and the engineer is an expert.
For the same reason, medical malpractice attorneys use expert witnesses in medical malpractice cases. These cases can be very complex and highly technical. It’s not enough for us to assert to a judge or jury that our client is badly injured and deserves compensation. We need to be able to show:
Those things are the elements of a medical malpractice case, and they must all be present in order for the patient to be entitled to a financial recovery in the case. In essence, the medical malpractice attorney must be able to “connect the dots” for the judge or jury. Expert witnesses play an important role in making those connections.
It is usually pretty straightforward to establish the first element: Once a doctor or medical facility accepts someone as a patient, they have a duty to treat that patient with the same care that a reasonable provider in the same situation would. This is called the “standard of care.” It can be much more difficult to prove the other three elements of a case, and that is where an expert witness’s specialized knowledge comes in.
The information a jury is asked to understand in a medical malpractice case is often complex. Expert witnesses in a medical malpractice case serve as translators in a way, explaining what happened and what it means in a way that the jury can easily understand.
Let’s say that a patient was exhibiting certain symptoms. Based on those symptoms, the doctor ordered Test A, which revealed no underlying problems. The doctor sent the patient home with instructions to take it easy. In fact, the patient had cancer which continued undetected for months after the consultation with the doctor. By the time the patient’s symptoms were bad enough to lead her to consult another doctor, the cancer was untreatable, and the patient suffered terribly before an untimely death.
In that scenario, a medical expert might testify that:
All of this testimony requires specialized knowledge. The jury, and even the attorneys, probably don’t know what diagnosis a certain constellation of symptoms should suggest, or which medical test is the standard in a certain situation. The doctor’s use of Test A might sound perfectly reasonable—unless there was reliable testimony from someone who knows it was not. The cancer might have been a slow-growing type, and a jury might be able to be convinced that the delay in diagnosis made no difference in the outcome—unless there was a doctor on the stand who could testify otherwise.
Not all medical malpractice cases require expert witnesses. If a surgeon leaves a sponge inside of a patient after surgery, for instance, that’s a pretty clear-cut case of negligence. Juries can easily understand that doctors shouldn’t do that and that leaving a sponge inside a patient will cause infection, pain, and the need for another surgery.
Most medical malpractice cases are not so clear cut, and the ones that are usually settle before a trial. Experts may also be involved in the pretrial process, helping the attorney assess the strengths and weaknesses of the medical information in the case.
To begin with, an expert witness in a medical malpractice case should be a professional who is highly qualified in their field. It makes sense that if a case involved, for instance obstetrical malpractice, the expert witness should be an obstetrician. Ideally, the physician will have extensive experience, be board-certified and be highly respected. It is usually best for the doctor serving as an expert witness to spend most of their time actively practicing medicine; not only does this provide a basis for their expertise, but a practicing physician is more credible as a witness than a doctor who makes a living testifying in court cases.
Not all expert medical witnesses are physicians, however. Depending on the nature of the injury, it may be appropriate to have other medical professionals, such as a pharmacist, physical therapist or nurse with the right knowledge, experience, and training to speak competently regarding an issue. Sometimes a professional serving as an expert witness in a medical malpractice case is not even a medical professional. An example might be an engineer who testifies regarding medical device issues.
In short, the ideal expert has extensive knowledge that enables them to interpret the issue at hand, impressive credentials, and an impeccable ethical reputation. The witness must also be able to explain complex concepts clearly, and should be personable and engaging—someone a jury wants to listen to.
Experienced medical malpractice attorneys have relationships with many reliable medical experts and know how to select the right expert for a given case. It is not good enough to have just any “expert,” because you can be certain that the doctor or hospital will have experts of their own. In complex cases, the side with the most credible expert medical witness often wins.
To learn more about expert witnesses in medical malpractice, or how we can use experts in your case, we invite you to contact Huegli Fraser.
The information in this blog post is provided for informational purposes only and is not intended to be legal advice. You should not make a decision whether or not to contact a qualified medical malpractice attorney based upon the information in this blog post. No attorney-client relationship is formed nor should any such relationship be implied. If you require legal advice, please consult with a competent medical malpractice attorney licensed to practice in your jurisdiction.
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