Birth injury lawsuits based on medical malpractice are much more complex than ordinary personal injury cases. Deciding whether a defendant is liable requires knowledge of the accepted professional practices in the defendant’s field. Most jury members and judges lack this knowledge. They also probably would not know the likely consequences of a specific medical error.
Thus, a family bringing a birth injury lawsuit should plan to present testimony from expert witnesses who are qualified under the laws of their state. Sometimes the medical professional who provided the affidavit of merit for the lawsuit will testify, but this is not required. Defendants also may present their own expert witnesses. As a result, birth injury lawsuits often come down to a "battle of the experts," in which the jury or judge must decide which witnesses are more persuasive.
The qualifications for medical experts vary by state. Often, though, an expert must have recently practiced or taught medicine in the same specialty as the defendant. They may need to hold a board certification or other credentials. Doctors may not be allowed to spend more than a certain percentage of their time testifying in medical malpractice cases.
Establishing Liability With Expert Witnesses
To prevail in a birth injury claim, a family will need to show that the defendant did not meet the professional standard of care, and this directly harmed their child. Expert witnesses can help answer each of the following questions:
What would a competent, reasonable physician in the defendant’s field have done in a similar situation?
What did the defendant do that a competent physician would not have done? (Or what did the defendant fail to do that a competent physician would have done?)
How did the error by the defendant result in the birth injury?
For example, perhaps an infant suffered permanent brain damage from a bacterial meningitis infection caused by a Group B strep infection in their mother that was not discovered. An expert witness for the plaintiff might explain that Group B strep bacteria often come and go in the body, so a competent doctor would test for this condition late in pregnancy. They might note that the defendant failed to test for Group B strep at the appropriate stage. They also might point out that proper testing and diagnosis would have allowed the medical team to administer antibiotics during labor, which would have prevented the mother from transmitting Group B strep to the child. They might trace the links between Group B strep and meningitis, in addition to explaining how meningitis affects the brain.
Establishing Damages With Expert Witnesses
Usually, parents or their attorney also will introduce experts to establish damages. An expert might discuss the future treatment that a child likely will need to address their condition, such as surgeries, therapies, and medications. They might assess the probability of curing the condition and describe how symptoms can be expected to progress over time, as well as the ways in which they may affect quality of life.
If a disability is expected to be permanent, vocational experts may discuss restrictions on the child’s ability to hold a job. Economics experts may guide a jury in understanding the lost earning capacity that a child may suffer across their lifetime. A life care plan also can help itemize the costs of caring for a child with a permanent disability and present them in an organized way. Parents thus may want to consult life care planning specialists to develop this type of plan and assist them in litigation.
Importance of Attorneys
An expert witness should have a strong reputation in their field that commands respect, but they also should be able to explain complex concepts in an accessible way. This can be a challenging combination to find without an experienced attorney. As a result, a family should not pursue a birth injury claim on their own if possible.