Category:

MEDICAL MALPRACTICE

Experts

Medical malpractice expert witness.

Any effective litigation strategy in the contact medical malpractice litigation will depend on expert witness testimony. To first understand the importance of expert witness testimony, one needs to understand the difference between lay or fact witnesses expert witnesses.

Fact witness, also called “eyewitness” or “percipient witnesses,” because a fact witness may testify to particular facts that they have specifically observed only. Fact witnesses cannot give an opinion about a topic that requires special education, skill training, or advanced knowledge.

Expert witnesses can testify to their opinion. Experts base their opinions knowledge, skill, education, training and/or experience. Expert opinions are to be based on sufficient facts and data and furthermore must be based on reliable principles and methods.

Any seasoned trial attorney will tell you that a medical malpractice expert witness can make your entire case, but the wrong expert can have a devastating negative impact on your chances of winning a case.

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How to choose a medical malpractice expert witness.

Choosing the right expert witness can make a case. One helpful tip is to check Lexis Nexis or Westlaw and see if they have had success in similar cases as the case at hand. Clearly, the right expert will have similar education and training as opposing counsel’s expert and do not be surprised if the expert that you choose is familiar with and has even worked against opposing counsel’s experts before. Medical malpractice experts are a very specialized field! Some of the different categories of medical expert witnesses are generical medical, medical warnings, independent medical examination (ime) - expert witness. Addiction medicine, radiology, pharmacy. forensic medicine, disaster medicine, surgery - oral, neonatology, home health care, hyperbaric medicine, surgery, ultrasound, family medicine, family. practice, surgery - laparoscopic, hypothermia, gastrointestinal, neurology, forensic pathology, stress test, herbal medicine, computed tomography ct cat scan, nursing, drug interactions & side effects, psychotherapy, surgery -cosmetic -plastic surgery, nephrology, eye disease,  pulmonary embolus, erectile dysfunction and this is no means an exhaustive list. There are numerous other specializations for medical expert witnesses.

Some basic traits you should look for in an expert witness are credibility, knowledge, trustworthiness, charisma, and dynamism, as well as general likability. Trials should be about facts, and we are definitely not discounting the importance of facts to a case, but sadly human nature being what it is people, and specifically people on juries evaluate not just the facts but the person presenting the facts. In its simplest form this can be referred to at the beer test, that is would I like to go out and have a beer with this person, so this is something that should always be considered when choosing an expert witness, that is will this person come off as not just knowledgeable and informative, but also likable.

Some extremely negative factors to look out for are hostility, arrogance, rudeness, sarcasm, a sense of superiority. People do not like to be spoken down to, so an expert that speaks in a condescending manner will be a turn-off to jurors. An expert needs to be able to break down complex technical and legal issues in a clear and convincing way that will leave the jury feeling enlightened and not as if they were spoken down to.  To be clear facts do matter, and clearly, the facts are the most important part of any case, but choosing the right expert that can convey the facts and in a clear and intelligible manner is key to any effective trial strategy.

In addition to the above positive and negative factors, experts are highly specialized, and most prefer to testify to their opinions in specific niches that their education and training makes them an expert in. The primary reason for experts to wanting to focus on narrow fields of their own expertise is that opposing counsel can challenge an expert's competence under a case called  Daubert v. Merrell Dow Pharmaceuticals, Inc. The first question that is generally asked is what is the “Daubert “ standard and what does it matter to my case? Well, the short answer to this is, the Daubert standard is a test used by the court to determine whether an expert witness presenting a scientific opinion should be admitted as evidence and whether the expert uses scientific reasoning appropriate for the case at bar.

Under the “Daubert” standard, a judge will make the following assessments:

  • Can the scientific theory/technique be tested or has It been?
  • Have the test results been the subject of publication and/or peer review?
  • Is there a known/potential rate of error?
  • What are the standards that control the operations of the technique and how are they maintained?
  • Is it generally accepted within the scientific community?

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Whoever introduces the expert witness and expert evidence IE the plaintiff or the defense has the burden of proof to demonstrate that the expert witness’s testimony is considered as “scientific knowledge” and adheres to acceptable methods and/or techniques that are generally acceptable by his peers in the scientific community.

In the context of a lawsuit and in furtherance of legal proceedings, when a plaintiff or defendant wishes to introduce the testimony of an expert witness, the court will evaluate whether the expert testimony meets the Daubert standard to admit or deny its admissibility. The purpose of the Daubert Standard is to prevent parties from introducing “pseudoscientific” evidence or “junk science” in the court of law, and basically making up facts and science that fits the case and opinion that they are trying to advance.

To sum up, the most important factors to consider when hiring a medical malpractice expert witness are:

  • Education, training, and experience.
  • Credibility likeability and an ability to convey complex scientific ideas in a clear and concise manner that a layperson jury can easily understand and that a judge who also lacks scientific training can also understand.
  • Counsel must also have a keen eye for the upcoming Daubert Standard challenge of their expert and be ready to show the scientific basis of their expert's opinion.

Following the above simple tips can save future headaches, and ensure that you and your chosen medical malpractice expert witness are prepared to overcome the Daubert Standard challenge and present a clear and concise case to the court which has a strong basis in accepted scientific methodology, that will give you the greatest possibility of success!  

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MD
Dr. Stetson is a fellowship trained orthopaedic surgeon who is board certified in orthopaedic surgery and sports medicine. He has over 25 years of experience treating complex shoulder, knee, elbow and ankle injuries and is an associate voluntary clinical professor at the USC Department of Orthopaedic Surgery.
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Jeffrey M. Wilder, DC, FACO
DC. FACO, CCSP, FICA
Board Certified Chiropractic Orthopedist, 38 years in private practice, former three term President of Wisconsin Chiropractic Association. Extensive experience with medical malpractice cases involving chiropractors.
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