Medical Malpractice: Using Medical Expert Witnesses

Medical malpractice lawsuits are among the most difficult, costly, and time consuming of all personal injury claims. Why are they so challenging? Generally speaking, because they involve special rules and procedures. In particular, to get a medical malpractice case off the ground, the plaintiff almost always has to hire at least one expert witness.

If you're thinking about filing a medical malpractice claim, here's what you need to know about using expert witnesses.

• Medical experts typically are doctors, nurses, and other health care professionals whose education, training, and experience qualify them to testify when negligent care (or failure to provide care) causes injuries.
• They testify about the medical standard of care, what caused the plaintiff's injuries, and the treatments the plaintiff has received and will need in the future.
• Medical experts help insurance adjusters, lawyers, judges, and jurors understand complex and technical medical issues.
• Dozens of states require a plaintiff to get an expert opinion before they can file a medical malpractice lawsuit.

Why Do You Need Medical Expert Testimony?

In the simplest terms, you need medical expert testimony to help prove the elements of your claim. Those elements are that:

• you were under the defendant's care
• the defendant was negligent, meaning they provided substandard care
• you were injured, and
• the defendant's substandard care caused your injury.

Of course, a defendant almost always hires experts too. The defendant's experts might dispute the standard of care, argue that the defendant met the applicable standard, and that the defendant's actions (or inactions) didn't cause any harm.

What results is often a "battle of the experts." In other words, the outcome of a medical malpractice lawsuit often comes down to which expert the judge or jury finds most credible.

Who's Qualified to Be a Medical Expert?

Each state has its own medical expert requirements. An expert typically must come from the same medical field or specialty as the defendant. For example, if a case involves a surgical error, you'll need a surgeon to testify, not a primary care physician.

The best experts are doctors, nurses, and other professionals who are actively practicing or teaching medicine. Not only are they more up-to-date on the standard of care, but judges and jurors tend to find practicing or teaching experts more credible than those who make a living testifying in court. Some states have special rules designed to prevent "career" experts, requiring that the majority of an expert's time be dedicated to practicing or academic medicine.

Other factors that help to establish medical expertise include:

• board certification
• publications in professional journals
• prior experience writing affidavits of merit and testifying in court, and
• service on professional committees that review medical treatment for signs of substandard care.

Some cases might require other kinds of experts. For instance, a pharmacist might have to weigh in on drug interactions. A biomedical engineer could be called to testify about a medical device, like an IVC filter.

A medical malpractice attorney will find and hire the right type of expert for your case.

The Medical Expert's Testimony

A medical expert helps answer three critical questions in a medical malpractice case.

• Did the defendant do what a reasonably careful provider would have done under the circumstances?
• If not, what did the defendant do wrong?
• Did the defendant's substandard care cause the plaintiff's injury?

Standard of Care

The standard of care answers this question: What should the defendant have done under the circumstances to deliver appropriate care? To provide that answer, a medical expert testifies about what a competent provider would've done in the same or a very similar situation.

For example, say a patient claims their doctor missed a cancer diagnosis. A medical expert would testify about tests a similarly trained doctor would have run when presented with the same symptoms. If the defendant didn't run those tests, the expert likely would say the defendant didn't meet the standard of care.

To arrive at their opinions concerning the standard of care, experts typically rely on their own training and experience, as well as current medical publications and medical board guidelines.

Causation

Expert testimony must prove causation—that the defendant's negligent care caused the plaintiff to suffer an injury. The plaintiff's expert will pin causation on the defendant's poor care. The defendant's expert will answer that the plaintiff experienced a bad outcome because of the disease or condition the defendant was trying to treat.

How Soon Do You Need a Medical Expert?

You'll need to have your experts and their opinions locked down well before you ever present a medical malpractice insurance claim to your doctor's liability insurer. Without this proof in hand, you can't really say you have a claim, much less a claim that's worth pursuing.

Over half of all states require plaintiffs to get a medical expert's opinion before they can file a lawsuit. Plaintiffs in these states must either submit an affidavit of merit with their lawsuit, or get the approval of a medical malpractice review panel, before they can sue in court.

Plaintiffs and defendants must disclose the substance of their experts' testimony to each other and to the court before trial. If either side fails to do so before the court's deadline, the court can dismiss the plaintiff's case or enter a default judgment against the defendant.

Medical Malpractice Cases That Don't Require Experts

A few errors are so obvious that a jury doesn't need a medical expert to understand negligence or causation. Classic examples include a surgeon who amputates the wrong limb, or a psychiatrist who sexually assaults a patient.

In these types of cases, a rule called "res ipsa loquitur" (Latin for "the thing speaks for itself") might eliminate the need for expert proof. When res ipsa loquitur applies, the plaintiff must show:

• they were harmed while under the defendant's care
• the harm wouldn't have happened unless the defendant was negligent, and
• the plaintiff didn't contribute to the harm.

As a practical matter, it's not wise to assume you don't need an expert just because you think the doctor's negligence was obvious. Talk to a lawyer before you conclude that res ipsa loquitur relieves you of the need for experts.

(Learn more about res ipsa loquitur in medical malpractice cases.)

Do I Need a Lawyer's Help Finding an Expert Witness?

In a word: Yes. Because you lack experience in malpractice lawsuits, you don't know where or how to find qualified experts. Additionally, you don't know how to assess a potential expert's qualifications. And even if an expert might be qualified to testify, chances are you don't know what the expert will be allowed to testify about in court.

A medical malpractice lawyer knows all this and more. They can tell you whether it's worth investing in an expert, and help you find one that judges and jurors trust. Experienced medical malpractice lawyers can find experts in any medical specialty. And they know what an expert needs to say to prove the necessary elements of your case.

Talk to a Medical Malpractice Lawyer

Can you can file a medical malpractice lawsuit without a lawyer? Yes. Should you? No. Trying to handle your own malpractice case is like navigating your way through a minefield while blindfolded. The odds of a costly mistake are high, and you probably won't know about your error until it's too late.

Don't delay. Each state sets a deadline—called a "statute of limitations"—for filing a medical malpractice lawsuit in court. Wait too long and the court won't hear your case. You'll miss the opportunity to get compensation for your losses.

When the expense of hiring a lawyer is holding you back, keep in mind that most medical malpractice lawyers get paid a percentage of what you win, under what's called a "contingency fee agreement." If you lose, you won't have to pay a lawyer's fee.

Here's more about how to find and pay for the right medical malpractice lawyer for your case.