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The Medical Expert [Trial Witness]

An Important Determinant of Success or Failure

By Dr. Jay S. Grife; JD, MAinsurance-book1 

In every civil medical malpractice trial, besides counsel for the respective parties, there is a Plaintiff (patient) and a Defendant (doctor).

In addition to the parties and their respective counsel, witnesses, both lay and expert, form the main body of testimony that will be elicited and heard by the Judge and jury.  

Overview of Witness Types 

Both lay and expert witnesses serve to tell the story of the parties to the court.  In a medical malpractice case, a lay witness generally explains the facts of specific events which they have witnessed, or more likely, how the Plaintiff has been affected by the alleged negligence. The parties may also call a special kind of witness, called a “medical expert”, to testify on their behalf.   

Definition of Medical Expert 

An expert witness is simply a witness with experience in a particular field, whose testimony will aide the lay jury in understanding the medical aspects of the case. In most medical malpractice cases, the Plaintiff must present expert testimony from a health care practitioner that the Defendant fell below the standard of care required and caused injury to the patient.  

These are the two essential prongs which when conjoined equate to negligence in legal terminology; (1) liability being a breach in the standard of care and (2) causation being that the negligence caused the Plaintiff damages. 

The “Two-Pronged” Test 

It is essential to understand that a Plaintiff cannot prevail in litigation if only one of these two prongs has been left unsatisfied.

For example, if a physician failed to diagnose cancer in a terminally ill patient, the fact that the diagnosis was not made can be deemed negligent, but the negligence in the failure to diagnose did not damage the patient, in that she was terminal when she initially presented. 

It is this two pronged test which delineates legal negligence from commonly expressed negligence or a bad result from the care and treatment provided.

Experts Not Always Required 

In rare instances, and in ever diminishing jurisdictions, expert testimony is not required in medical negligence matters.

In those instances, the legal doctrine of Res Ipsa Loquitur or “the thing speaks for itself” often will attach to obviate the expert’s place.

Normally, in a medical malpractice case, a Plaintiff is required to establish: (1) a breach in the standard of care or that an act or omission by the Defendant that was not in keeping with the degree of skill and learning ordinarily used under the same or similar circumstances by members of defendant’s profession; and (2) causation or that such negligence or omission caused the plaintiff’s injury.

The Res Ipsa Loquitur Doctrine 

However, the doctrine of Res Ipsa Loquitur exists to preclude the need for direct proof of negligence through medical testimony, and allows cases submitted under the doctrine to proceed to the jury even in the absence of testimony as to negligence because a jury is permitted to draw an inference of negligence from the specific act itself.

The classic example of such an incident would be the leaving of a surgical instrument inside a patient’s body, or operating upon the wrong body part [“Never-Event”]. 


What has been your experience with medical expert witnesses – help or hindrance – hired gun or balanced interpreter?

Risk Management, Liability Insurance, and Asset Protection Strategies for Doctors and Advisors: Best Practices from Leading Consultants and Certified Medical Planners™




2 Responses

  1. Confidential Medical-Error Reporting,

    Did you know that Federal regulators recently proposed sweeping patient safety rules to give physicians a confidential and voluntary way to report medical errors, never-events and “near-mistakes?”

    The rules, released on February 12, 2008, by the Agency for Healthcare Research and Quality [AHRQ], would implement the Patient Safety and Quality Improvement Act [PSQI] of 2005, which authorized creating patient safety organizations to which doctors, hospitals and other institutions could report mistakes, according to the American Medical News.

    The PSQIs would identify trends in errors and share them with the medical community, with the goal of gathering information on outcomes for many patients to detect patterns of risk and harm in a variety of health care settings, from doctors’ offices to hospitals.

    The patient safety regulations would create uniform national peer review protections, acknowledging that physicians and others are sometimes reluctant to participate in quality review activities because they fear that the information ultimately could be used against them in a medical liability lawsuit or by a disciplinary body.



  2. Court Upholds Same-Specialty Expert Witness Requirement

    Arizona physicians say a state high court ruling will help prevent frivolous medical liability lawsuits from moving forward. The Supreme Court of Arizona in March ruled that a law requiring experts in such cases to share the same specialty as the treating physician does not violate state or federal laws that guarantee people the right to go to court.

    “Although plaintiffs might face greater difficulties in finding a qualified expert because of a smaller expert pool, [the statute] does not bar medical malpractice lawsuits or preclude plaintiffs from recovery in such actions,” the court said in Baker v. University Physicians Healthcare.

    Source: Tanya Albert Henry: Amednews.com [4/3/13]


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