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?
This question is going to be one for each attorney to decide in a given case, but it is worth reviewing the range of options, how to tap into those options, and core factors for decision-making.
Let’s adopt a short scenario, and let’s say that Mrs. Smith claims to have suffered serious injuries as a result of Dr. Jones perforating her intestine during a routine polypectomy and then failing to timely diagnose and treat the ensuing sepsis. Do you seek the opinion of a gastroenterologist? An anesthetist? A general surgeon? A nurse? And how much of your answer is driven by budget?
In theory, the basic criterion is to match your expert to the threshold qualifications of the defendant. Simply put, a physician could be called as an expert to testify against a physician. The background on why an expert witness is brought in is to afford the court, which may include jurors, such knowledge beyond ordinary or common knowledge as they may need to make an informed decision under the jury instructions.
But this simple selection process can get more complicated as one adds on all the additional credentials that may be possessed by the defendant doctor. He may be a specialist. He may be Board certified. He may be a Fellow in a medical society. He may be a pre-med college instructor or a medical school faculty member. He may be published.
So, in our scenario, if Dr. Jones is a Board-certified gastroenterologist at a teaching hospital and is the president of the state medical society, you may be starting your expert witness search with a hefty list of credentials to match. This will naturally make your search more complicated as the higher your defendant has climbed, the fewer peers he will have.
On the flip side of this argument is the one that could be introduced by a physician who performs polypectomies with “less” credentials – the one who could say something along the lines that “even I know better.” Here, the key may be to find a physician of like specialty who practices in as close a geographic proximity to the defendant as possible. Note that physicians in the same geographical location might have a conflict of interest, so be sure to check with the potential experts to clear all possible conflicts.
All of this debate focuses upon the critical phrase for the medical malpractice case and that is the “standard of care.” In a medical malpractice case, the plaintiff’s claim revolves around the defendant doctor’s conduct being a “deviation from a reasonable standard of care,” or similar words to this effect. The discussion around the doctor’s credentials ties directly into “which” standard of care: local; national; among hyper-specialized doctors in a niche sub-specialty?
In some states, like Pennsylvania, there may be statutes or case law that directs whether the expert witness physician must have the same specialty board certification and, if applicable, sub-board certification as the defendant physician. There may be additional requirements surrounding active practice, teaching, and retirement relative to date of injury.
Particularly in expert witness selection for medical malpractice cases, learn as much as you can about legal requirements for offering their testimony at trial and learn as much as you can about the defendant’s qualifications. This combination of data is the best place to start you own selection process.
By: Paloma A. Capanna, Attorney