The case was a medical malpractice action in a situation where the patient died. The trial judge ruled that each side was only permitted one expert witness per relevant subject. The verdict favored the defendants. The appellate court found no legal basis for a trial court to limit expert witnesses, particularly where the proffered testimony would have gone to the heart of the cause of action.
Although efficiency at trial is a premium, the appellate ruling makes good sense, particularly in medical malpractice actions.
Consider just one example: the clinical presentation of sepsis in the intensive care unit, which is antibiotic resistant, where the patient is over 65 years of age. The treating medical team could involve the admitting physician, a gastroenterologist, a surgeon, an anesthetist, an infectious disease control specialist, and an internist or geriatric doctor. The next layer may be the nursing care. Another layer may be the lab personnel. And, hospital staff could also be involved.
A complex medical presentation can involve more than ten medical and staff persons involved in care and medical decision-making. You may even come across a situation where two or more of your medical expert witnesses offer differing opinions on the primary causation for the claimed injuries. The very theory of your case may include a combination of factors.
The same is true when considering this scenario from the defense perspective. While the plaintiff’s lawyer may set forth one or two expert witnesses, the defense may decide to put forward an expert in each field. There, the argument for presenting so many expert witnesses, which might be viewed as duplicitous or cumulative, is to rule out each discipline with specificity.
It’s not just the medical field where such multi-disciplinary situations can arise. More than 200 years after Adam Smith’s famous theory of the division of labor, many professions have been broken down into specialties, only to come back together as collaborative teams. This approach is true for everything from the design, engineering, and manufacture of an automobile to the location, exploration, building, and drilling for oil in deep waters.
Why not take a moment to review your pending cases in light of this important appellate court ruling to consider whether it would be appropriate for you to use more than one expert witness? After all, it’s your client’s right.
By: Paloma A. Capanna, Attorney at Law