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Expert Witnesses and Medical Malpractice Litigation


One feature of a medical malpractice claim that distinguishes it from a garden-variety negligence claim is the use of expert witnesses. In the average motor vehicle case, most people have a sufficient understanding of the duties of a motorist on the highway. Most people already know that a driver must stop for a red light and that the failure to do so is considered negligence. It is not necessary for an expert to testify.

In medical malpractice cases, the issue of proper medical care is almost always complex. There is rarely a definitive statement in a medical textbook that will prove the case. Consequently, a lawyer must seek out an expert witness to provide an opinion as to what is proper or improper medical care.

An expert witness in a medical malpractice case is a physician who reviews the medical records, perhaps examines the plaintiff, speaks to the plaintiff’s lawyer, and then renders an opinion on the medical issues in the case. When the issue is negligence, the expert will give an opinion regarding the standard of care owed by the physician to the patient and whether the physician’s conduct has met the standard of care under the circumstances. If the issue is causation, the witness will render an opinion as to whether the doctor’s conduct was a material factor in causing the harm that followed.

In addition to expert opinions on the issues of negligence and causation, expert testimony is often needed on other issues arising in a medical malpractice case. Typically, opinions from an economist or a vocational expert are required when the plaintiff contends that the injury has disabled him or her from employment. (See Chapter 7 for a discussion of loss of earnings and earning capacity.) If a person has a permanent injury, the plaintiff may be required to obtain an expert opinion regarding life expectancy so the jury can evaluate the length of time the plaintiff could have worked. If a person can continue to work despite a physical injury, but can no longer work at the same job or for as long as before the injury, a vocational expert (typically a psychologist with specialized training) is needed to give an opinion on the work the plaintiff could do before the injury and the limits that have resulted from the injury.

If a case involves a claim that the injury affects the plaintiff’s future ability to earn a living, the expert who renders an opinion on loss of earning capacity will likely have to meet with the plaintiff. For example, if you had been a heavy laborer all your life, but your injuries require that you seek a new line of employment, a vocational expert will likely meet with you to review your educational and employment background inorder to render an informed opinion.

Your attorney is responsible for scheduling the appointment for you. Ask your lawyer whether you will have to meet an economic or vocational expert, and whether he or she has taken steps to arrange the meeting.

One of the best indicators of whether your attorney is properly working on your case is his or her interaction with experts at various stages. For example, before suit is even filed, your attorney should review your medical care with an expert for a preliminary opinion of its merits. It is vital that he or she do so at an early stage of the litigation. In most cases, an attorney can make a negligence and causation assessment at the initial stages of the investigation by engaging an expert to perform a preliminary review of the case.

Too often, an attorney will accept a medical malpractice case and place it in suit without even knowing if a medical expert will support the view that the physician was negligent and the negligence caused the injury. After months, if not years of litigation, the client learns that the case has been dismissed because the lawyer could not find anyone to support the claim.

You must question your lawyer before suit is filed if he or she had your medical records reviewed by an expert. Once the case is in suit, periodically ask your lawyer if he or she has received a final opinion from the expert on the merits of the case. If he or she has not, find out why.

Once the attorney has completed pretrial discovery, (depositions, interrogatories, and request for production of documents), there are only a limited number of reasons why the attorney cannot have the file reviewed by an expert witness. Without a compelling reason, an attorney who has not obtained the necessary expert opinions will not be in a position to pursue your case through trial or even engage in a meaningful settlement dialogue.

No insurance company will settle a medical negligence case unless it is convinced that the plaintiff’s attorney can prove the claim at trial. If the attorney has not produced a written report from an expert that the doctor was negligent, there is little chance that the insurance company will ever settle the case. More likely, the insurance company’s lawyer will seek to have the case dismissed on the ground that the plaintiff is unable to prove the case.

Keeping track of your attorney’s use of expert witnesses is one way to know that your attorney is giving your case the attention it deserves. In some jurisdictions, the court will establish deadlines by which each attorney must produce to their opponent reports from all expert witnesses they intend to present at trial. If your attorney misses the deadline, the court may dismiss your case.

In other jurisdictions, the court will not permit a case to be scheduled for trial unless all parties have produced their expert reports. In these venues, your case could go on for years and years if your attorney is not aggressively pursuing the matter and has not obtained or produced expert opinions. In either type of jurisdiction, find out if your attorney is meeting the deadlines and producing experts’ reports in a timely manner.

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