Medical Malpractice: Using Expert Witnesses

Expert witness testimony is essential to most medical malpractice cases.

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Almost all medical malpractice cases require testimony from a medical expert. The facts are usually too complex for non-doctors to determine if the patient's doctor should be held liable for the patient's injury. In fact, in many states you must get a medical expert's opinion before you can initiate a lawsuit.

It pays to learn ahead of time why expert testimony is crucial in medical malpractice cases, what that testimony consists of, who may serve as an expert, and when an expert might not be necessary.

Why Is Medical Expert Testimony Needed?

Almost all medical malpractice cases require medical expert testimony. Without it, the judge will dismiss the case or decide the case early. This is because the courts have decided that the technical information the jury must consider in a medical malpractice case is too complicated to sort through without help. The jury is not required to adopt the expert's opinion, but must use it to consider the facts.

Finding an expert to testify on your behalf is therefore an essential early step in most medical malpractice cases. It is also important to know that medical experts are typically not cheap and may be difficult to find.

The Medical Expert's Testimony

A medical expert will address the two questions central to any medical malpractice case:

  • Did the doctor follow the standard of care for doctors in the same position?
  • Did the doctor's failure to follow the standard of care injure the patient? (To learn more about what you must prove in a medical malpractice case, read Nolo's article Medical Malpractice Basics.)

Standard of care. The medical expert will testify about what a normal, competent doctor would have done in the situation at issue in the case. The expert will then give an opinion as to whether the doctor being sued lived up to that standard or care. There are no hard-and-fast rules about the standard of care in any given field, so the expert may use evidence like medical publications or medical board guidelines to assist. The jury does not have to take the publications or the expert opinion as the final word in its decision.

Did the failure injure the patient? An expert must also testify about whether the doctor's failure to live up to the standard of care injured the patient. There are often a variety of factors at play in any given medical situation and the doctor's incompetence may not have directly caused the bad outcome. Therefore the expert must explain to the jury how likely it was that the doctor's incompetence was actually the cause of the injury.

How Soon Do You Need a Medical Expert?

The plaintiff and defendants must have experts, and disclose the substance of their testimony to the court, before trial starts. If either side fails to do so before the court's deadline, the court will decide the case in the other party's favor before the trial begins. The exception is if the case falls into a category that does not require an expert opinion.

Many states also require the plaintiff to get a medical expert's opinion before they can even begin the lawsuit. This opinion usually comes in the form of an expert affidavit (written testimony) or by submitting the known facts to a panel of medical experts.

Who Is Qualified to Be a Medical Expert?

State rules vary as to who may testify as a medical expert. Often, if the case involves malpractice within a specialized medical field, you will need to get a specialist as your expert. An expert might qualify as a specialist through a combination of academic and practical experience, or through board certification. If the case involves general medicine, a wider range of doctors will have the experience and training necessary to qualify as expert witnesses.

Some states have special rules designed to prevent "career" providers of expert testimony, requiring that the vast majority of an expert's time be dedicated to practicing medicine.

When Is an Expert Not Necessary?

Sometimes, the medical malpractice is so obvious that a medical expert is not needed in order for the jury to understand the facts. The classic example is when a surgeon leaves a sponge in the patient. This rule (called res ipsa loquitur, or "the thing speaks for itself") has two basic components. An expert witness is not necessary when:

  • only the doctor or medical staff had control over whatever it was that caused the injury, and
  • the injury could only have been caused by the doctor's failure to adhere to the normal standard of care.

As a practical matter, it's not wise to assume that you don't need an expert because your case is "obvious." Sometimes the doctor's incompetence is obvious, but not whether the incompetence caused the injury. Other times, the defendant will convincingly argue that the doctor did not have exclusive control over the situation. It pays to have a medical expert waiting in the wings in case the court finds that the res ipsa loquitur rule doesn't apply to your case.

Getting Help

Because medical malpractice law is highly regulated by a complex body of rules that vary considerably from state to state, it is often essential to get advice or representation from a lawyer.

For help on choosing a good medical malpractice attorney, read Nolo's article Finding a Personal Injury Lawyer. Or, go to Nolo's Lawyer Directory for a list of personal injury attorneys in your geographical area (click "Types of Cases" and "Work History" to learn about a particular lawyer's experience, if any, with medical malpractice claims).

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