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.
To counteract the fact that medical expert testimony may not be “inherently” objective, there are several strategies litigants and their attorneys can use in order to get the best expert testimony for use in a medical malpractice case.
-Expert Witness Certification Programs: Many programs, typically sponsored by a medical association such as the American Society of General Surgeons, have arisen to ensure the quality of medical expert testimony. See http://www.theasgs.org/education/education3.html. These programs provide guidelines and standards for expert testimony with respect to the qualifications and ethical obligations of experts. Using experts who are certified can be advantageous in medical malpractice litigation, as many of these experts will have a history of having given important testimony in previous cases and the reputation and backing of their profession.
-Multiple Experts: Where there is agreement or a consensus on whether the standard of care has been deviated from or not, medical expert testimony is likely to be considered more credible. Sometimes simply having more than one expert review and agree with another’s medical opinion will help build and win a particular case.
-Peer Review: Whenever medical experts offer their opinion in a courtroom, on dispositive medical issues, they are giving their colleagues an opportunity to hear their testimony and agree with or discount it. For each medical specialty, peer-review boards exist where certain experts are considered reputable and credible by other experts. To help establish a witness’s qualifications, it may be useful to rely upon the feedback an expert’s peers have given regarding his or her theories or personal experience. If the reviews are positive, the witness gains credibility and may be considered more reliable or trustworthy by a given court.
-Disinterested Parties: While it is understandable that some parties may wish to use the testimony of medical providers with whom they have a close personal relationship, this tendency should be carefully scrutinized. Sometimes, medical providers who have been advocates for their patients are not able to be as objective as experts who simply look at the evidence in a file without having known the litigant personally. Because courts and juries reward expert testimony that appears to be the most objective and qualified, it is wise for litigants to consider using the services of Expert Witness Providers so the testimony comes from experts who are not influenced by their personal relationships with patients, but rather can convince a court that they have evaluated all the evidence fairly and that in their qualified opinion, the matter should be resolved one way or another.
Medical-malpractice cases can be highly involved and complicated with respect to expert witnesses. On the one hand, expert witnesses do not always have a mathematical formula that they use to form an opinion in a particular case. On the other, medical cases may require expert witness testimony at almost every stage of legal proceedings, so experts in malpractice proceedings are essential. The solution, then, is to follow the activity of two fields, law and medicine, which have been closely linked for centuries, and then to utilize one or more of the strategies discussed, above, to ensure than the experts selected for a particular case are the best available in the eyes of the court.
By: K & M Legal Services