Most plaintiffs in medical malpractice cases need to retain expert witnesses to testify for them. Ordinary people outside the profession, such as members of a jury, would not be able to understand the nuances of the situation otherwise. A jury is free to give an expert’s testimony as much or as little weight as it chooses, so finding a credible expert is critical.
Hiring an Expert
Assuming that your case requires expert testimony, you will need to retain an expert before the trial. (In many states, you will need to consult an expert for the affidavit of merit that may be required to accompany a complaint.) The defendant also probably will retain an expert, and each side will disclose to the court what their expert will say during the trial. If you have hired an attorney, they probably will handle the process of retaining an expert for you. Otherwise, you should be aware that finding an expert may involve a significant amount of time, effort, and cost, so you should start looking for an expert as soon as you believe that you may have a claim.
The expert usually must come from the same field of medicine as the defendant, and they should be familiar with the type of situation in which the alleged malpractice occurred. Not every expert is a practicing doctor. Often, an expert may be a professor in a medical school who teaches courses in the relevant field, or they may be certified in the field. To prevent doctors from making a career out of serving as expert witnesses, procedural rules sometimes provide that the expert must have spent at least a certain percentage of their time in recent years practicing or teaching medicine.
The purpose of expert testimony is to help the jury understand whether the plaintiff has met the elements of a medical malpractice claim. Their main tasks consist of explaining how the defendant failed to meet the applicable standard of care and how this led to the injuries that you suffered. To provide context, your expert will need to describe the practices and procedures followed by a competent doctor in the specialty. They will then explain how the defendant’s actions deviated from those norms. An expert can rely on their own experience and knowledge, but they can also integrate academic publications and industry standards to support their opinions. In describing causation, the expert may need to address other potential factors that might have caused the plaintiff’s injuries. They would explain why the facts suggest that the defendant’s negligence was the sole or main cause.
Medical Malpractice Cases Without Experts
If a doctor’s misconduct was egregious, a jury may be able to understand that they violated the professional standard of care without consulting an expert. For example, a doctor who leaves a foreign object in a patient’s body, operates on the wrong limb, or sexually assaults a patient clearly has committed malpractice. There are also certain instances in which nobody other than the doctor or their assistants could have caused the harm. This triggers a rule called res ipsa loquitur, which means that the thing speaks for itself, or that causation is self-evident.
However, you should not just assume that your case fits into this category because the doctor’s fault seems obvious to you. You should consult an attorney or an expert to make sure that you are proceeding down the right path and not overlooking anything.