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.
However, in medical malpractice cases involving children, the plaintiff has a natural advantage. Most people are naturally sympathetic to children—especially children in need. The very idea of a child being unduly harmed by medical malpractice is an affront to most jurors’ sensibilities. If a child is the victim of malpractice, their family is entitled to just compensation. However, if a medical professional or institution believes that there was no instance of malpractice, they have the right to defend themselves. Due to their sensitive nature, in pediatric malpractice cases, the defense often opts to retain an expert witness. The expert must often take the role of convincing the jury that the child’s medical issues, heartbreaking as they may be, were not caused by medical negligence.
This can be a delicate task. The defense must be careful not to seem callous to the child’s condition and take the view that the medical professional or professionals in question did not breach their standard of care. An expert witness can help convince a jury that a child’s adverse outcome was not due to malpractice. While the jurors’ natural inclination will be to want to assist the families of disabled children—whether or not any medical errors were committed—might seem altruistic, in reality this practice is unethical. The medical professional’s career is likely at stake, after all. Though many agree that society at large should do more for children and their families who are facing debilitating illnesses and disabilities, this is a matter of policy and has nothing to do with malpractice law. An expert witness can help make that distinction in the minds of jurors and make the case that the defendant should not be held complicit in the child’s suffering.
The prosecution, in turn, might benefit from hiring its own medical malpractice expert witness. The expert can help them make a case that there was indeed an instance of malpractice and the duty of care was, in fact, breached.