When handling a medical malpractice (or “MedMal”) case, finding the right medical expert should be an attorney’s top priority. Medical malpractice occurs when a health care provider is negligent, whether by act or omission, in the provision of treatment or care to a patient. The treatment is considered negligent when it falls below the standard of care that would be exercised by a reasonably prudent medical professional and results in injury or death to the patient. Identifying the standard of care is critical in these cases, so a qualified medical expert witness is the key to proving a medical malpractice case. In fact, some states even require that legal counsel provide a statement of merit before filing a medical malpractice claim on behalf of a client. For these reasons, finding the right medical expert witness should be the first step for a MedMal attorney when taking on a new case.
Medical Expert Witnesses
Expert witnesses involvement in litigation is becoming more and more prevalent, while the legal standards for evaluating the admissibility of the science upon which that testimony is based is still as vague as ever. Experts need to understand what goes on in the courtroom, the possible implications of their testimony, and the professional standards to which they are likely to be held. This guide is designed as a brief overview of some concepts the legal professional should follow in order to adequately train and evaluate a potential expert witness.
Attorneys and expert witnesses should be aware of recent legislation passed in Florida, which deeply divides the legal and medical communities, potentially changes the manner in which medical malpractice lawsuits will be tried and ultimately determined, and affects every litigator, in Florida and beyond.
In April 2013, the Florida Senate approved Senate Bill (SB) 1792, which “requires that expert witnesses called against a defendant doctor practice the exact same kind of medicine and not just be in “similar” fields.” ”Florida Senate Passes Bill on Medical Malpractice Expert Witnesses,” Associated Press (Apr. 15, 2013). Moreover, under the bill’s provisions, any medical provider who has treated a patient and is called to testify is permitted to, “breach patient confidentiality and give attorneys information about a patient’s treatment.” Id.
The Journal of the American Academy of Psychiatry Law 41:1:134-136 (March 2013), authors Dor Marie Arroyo-Carrero, MD, and Charles Dike, MD, MPH, MCRPsych, wrote a fascinating article regarding a Missouri wrongful death matter and the admissibility of psychiatric testimony. The crux of the issue involves the American Psychiatric Association’s (APA’s) “bible,” Diagnostics and Statistical Methods IV (DSM IV).
The importance of the DSM IV cannot be overstated. It is the sine qua non for much of prescriptive medicine and analysis for mental disorders today. When it was first published in 1952, it contained 102 diagnoses in 130 pages. DSM II was published in 1968, listed 182 disorders, and was a svelte 134 pages long. By 1980, the DSM-III grew to 494 pages and listed 265 diagnostic categories. The current edition, DSM IV published in 1994, (allegedly soon to be replaced by the DSM V), has ballooned to 297 disorders in 886 pages.
The court of appeals in Nebraska recently held that an expert witness may testify to facts outside the field of his specialty so long as he shows familiarity with the specialties and the treatments provided. The court also said that a physician need not examine a patient in order to provide testimony if the testimony is based on scientific, technical, or other specialized knowledge and assists the trier of fact to understand the evidence or to determine a fact in issue.
In Arizona, a medical expert who had previously been disclosed as testifying expert could not be re-designated as consulting expert—with privileges and discovery protections—after the expert’s opinions had been disclosed.
A recent study regarding medical malpractice claims was reported in The American Journal of Surgery, Vol. 203, No. 6, June 2012.
While this was a limited study and involved only a handful of resolved New York State medical malpractice lawsuits, some of the findings may be instructive to all attorneys prosecuting or defending medical malpractice claims throughout the country.
Since at least the late 19th century, the legal and medical professions have attempted to grapple with how to utilize paid expert witnesses in a manner most conducive to the interests of litigants and justice. Medical expert testimony differs from other types of expert testimony in that medical experts typically do not use as many objective criteria as other types of experts. Unlike an actuary, for example, who can point to a specific formula used to assess the amount of damages due to an individual, medical experts are limited, to an extent, in making such objective assessments of when the “standard of care” has been neglected.
Medical malpractice cases can involve claims for significant injury with corresponding demands for significant damages. It is an area of law that predictably requires the testimony of an expert witness.
Just how closely do you need to tie your expert witness to the allegations at hand?
In any medical malpractice case, the plaintiff’s role is to win the jurors’ sympathy. It is usually fair to expect that jurors will approach malpractice cases without a bias, listen to the plaintiff and defense and then make an evidence-based decision.
Medical malpractice can be defined as liabilities that arise as the direct result of medical care. In order to establish negligence, Black’s Law Dictionary requires a plaintiff to establish: