In the context of alleged medical malpractice, it is usually not sufficient for the plaintiff (or the plaintiff’s lawyer) to simply stand up in court and claim that a doctor gave bad medical care which caused harm or injury. If that were the case, medical malpractice lawsuits would be relatively simple. Rather, whether the doctor has treated the patient with the proper standard of care and skill must be determined from the testimony of a medical expert such as another doctor or surgeon. The expert will be able to testify as to whether what occurred in a given case was or was not medical malpractice.
The reason for the expert testimony requirement is straightforward. In order to establish medical malpractice, the plaintiff must prove that a medical professional caused injury by doing something that a medical professional of ordinary skill, care, and diligence would not have done under similar circumstances. Because the vast majority of medical malpractice cases involve a medical professional’s skill and judgment, the plaintiff must present medical expert testimony to establish (i) the relevant standard of medical care, (ii) a breach of that standard, and (iii) that the breach of the standard led directly to the injury.
Although there is an exception to the expert testimony requirement for matters within the “common knowledge” of laypersons (i.e. everyone knows that a doctor replacing the wrong knee is highly improper), most medical malpractice cases are not within the “common knowledge” of laypersons. For example, most people do not know how many incisions should be made during a hernia repair or whether a doctor should inspect the intestines by hand before closing the patient back up. That is why most medical malpractice cases require the testimony of a medical expert who can explain to the jury what the proper standard of care should have been, and how it was breached. Such an expert must practice in the same or a substantially similar specialty as the defendant medical provider.
Sometimes, the best candidate to be an expert witness on a given case is a client’s subsequent treating physician. For example, say that you go to Dr. Smith to perform surgery on your broken foot, and Dr. Smith botches the surgery and actually makes your foot worse. You then follow up with Dr. Jones who is flabbergasted at how bad Dr. Smith performed the surgery. At this point, Dr. Jones would likely make an excellent candidate to be an expert witness on your case because he is very aware of the situation and may be inclined to help you pursue compensation from Dr. Smith.
Of course, it is not always the case that a subsequent treating physician will be interested in helping to pursue a medical malpractice action (or there may not even be a subsequent treating physician in the event of a wrongful death). If that is the situation, your lawyer will begin to search for a knowledgeable expert for your case who will be able to provide the testimony that you need in order to see your case through from start to finish.
If you have questions about any of the legal issues raised in this blog, contact Dodosh Law Offices, LLC at (440) 298-2344. Or, you can fill out a contact form and Attorney Dodosh will get in touch with you.