Hammer and stethoscope - imagery for medical malpractice
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.

What should one look for in a medical malpractice expert witness?  Attributes like geographic proximity, price, or affability may seem like important considerations to some, but they are far less important than these basic criteria:

1.         Board Certification in the Same Field as the Defendant.

The expert witness must testify about what another medical professional would do under the same or similar circumstances as those faced by the defendant in the case. By doing so, he or she will explain why that defendant’s behavior did not meet the appropriate standard of care. However, one cannot show that an expert witness reasonably knows what those circumstances are like, let alone the standard of care, if the witness is not highly experienced in the same field of practice as the defendant. Nor could an expert witness adequately speak to the standard of care for that segment of the industry unless he or she is so experienced and knowledgeable about it as to have qualified for board certification. Board certification demonstrates that the expert witness’s own professional peers deem him or her so qualified as to be an expert among experts in that field. That sort of pre-qualified expert status is hard to refute. Therefore, board certification in the same field as the defendant should be a basic qualification for any MedMal expert witness an attorney might consider.

2.         Years of Clinical Experience.

As noted, it is not enough to simply describe the appropriate standard of care. To survive cross-examination (or in some cases, even voir dire) an expert witness needs to show that he or she has walked in the defendant’s shoes many times before in order to credibly offer an opinion about the defendant’s actions or inactions. To that end, experience is key. A good rule of thumb is to find an expert witness with at least 10 or more years of experience practicing in the same field as the defendant. This level of experience will show that the expert witness has mastered the field and experienced virtually every eventuality, including any that the defendant faced, on more than one occasion.

3.         Academic Appointments.

Another important consideration is whether the expert witness has been granted any academic appointments. Medical professionals chosen to teach others are usually top performers and well-respected for their knowledge in the field. Ideally, the witness will teach at a well-recognized university within the United States. Additional honors like holding a department chair or having published research papers or books on the subject of the witness’s testimony further cement that individual’s recognized status in the field as not just an expert, but one who sets the standards of competent performance by teaching it to others.

4.         Currently Practicing Medical Professional.

Of course, it is not enough for an expert witness to have seen the practice then retired to the halls of higher learning or become a professional witness. Technology and accepted practices change quickly and constantly, and only a medical professional who is still actively practicing can credibly speak to the impact of those changes on the standard of care for a fellow physician. Moreover, an expert witness that is still dealing with these types of injury or illness on a daily basis is going to be able to easily and fluidly respond to questions on the stand that may give a semi-retired professional difficulty simply because they have not had to deal with them as recently.  A practicing physician can speak to what the defendant should have done based on the standard protocol, he or she can also testify as to what the medical professional does in that very situation on a daily basis.

5.         Pass a Conflict Check.

A critical but sometimes overlooked step in the process of selecting any expert witness is determining whether that expert might have a conflict of interests. Such a conflict could either undermine the expert’s testimony or disqualify him or her from service as a witness all together. Examples include prior affiliations with the opposing party or attorney, financial interests that may be affected by the outcome of the case, or a previously negative relationship with the retaining attorney’s client. If a conflict does come to light, an attorney must determine whether it is one that can be waived or if it requires the selection of another expert witness. Failing to run such a conflict check can have dire consequences on a case and lead to a large amount of needless expense, even if the expert would otherwise be ideal.

Conclusion

Good medical malpractice expert witnesses can be hard to find, especially in highly specialized practice areas and/or remote geographic locations. Parties and attorneys should be open to retaining experts from outside of the local community and start the search as early in the development of a case as possible. Many have ignored this advice, selecting experts that do not meet one or more of the above-described basic criteria. Such choice is often to that party’s later displeasure when they receive an adverse ruling or a diminished return on investment. Only by selecting the right expert can one assure a proper analysis of the case facts, a witness who can withstand the toughest scrutiny on the stand, and a medical professional capable of handling with ease even the most difficult questions about what the MedMal defendant should have done. While nobody can guarantee a result in a lawsuit, having the right medical malpractice expert witness will be the key to securing the best chances for victory for an attorney’s case and the best outcome for the client.

By: Christopher Eri, J.D.