The testimony of an expert witness is necessary in almost every medical malpractice lawsuit. In some states, you cannot even file this lawsuit until you can present the opinion of a medical expert. Already highly technical cases, the most difficult part of a medical malpractice claim is often the element of proving negligence. Not every medical error is malpractice, after all. Was the mistake the result of unreasonable incompetence? What would reasonably competent medical staff have done in such circumstances? These are questions that a medical expert can answer in your case.
As valuable as a medical expert's testimony is, it is imperative to know right away that it can be hard to find this expert, and then it will often be expensive to hire this expert. Knowing that, we can examine what a medical expert does in a case, and why they are so necessary.
Not only does a medical expert explain whether or not a medical professional acted with reasonable competence, but the expert can also explain whether or not the professional's negligence is the source of the patient's injuries. Without this testimony, a judge could dismiss the case or come to a speedy conclusion. In a jury trial, a judge wants the complex medical information to be broken down by an expert for the jury's benefit, even if though they do not have to accept an expert's testimony as decisive.
First off, an expert would have to address the "standard of care". This means detailing what a reasonably competent medical professional would have done in those circumstances, thus establishing whether or not the doctor or hospital being sued failed to meet that standard of care. An expert may bolster his or her opinion with information from medical journals or board guidelines.
Even if an expert can convince a jury that a medical professional was negligent, that is not enough to win a medical malpractice claim. It must also be demonstrated that this negligence was the cause of the plaintiff's injuries or illness, and not a pre-existing condition. Just because a medical professional was negligent, it does not mean that this inflicted harm.
If you are going to file a medical malpractice claim then, how much time do you have to find a medical expert? Usually speaking, you have until the time the trial will begin. By that time, both plaintiff and defendant must have hired experts and told a court what the experts' opinions are. Failure to produce an expert in that time could mean automatically losing the case. In states where a medical expert's testimony is necessary before even filling out the paperwork for a lawsuit, a plaintiff will usually have to present a written affidavit or to give the facts of the case to a board of medical experts.
Who exactly is a medical expert? This will depend on your state's laws. You usually will have to find a specialist, someone with the right education and experience, or someone who has certain board certification. If the case is not highly specialized but is a matter of general medicine, then it can be easier to find the doctor who has the right qualifications.
There are, however, some cases where a medical expert is not necessary. For example, if a surgeon left a sponge inside of a patient, or if the surgeon amputated the wrong leg, then it does not take an expert to explain that the patient was harmed by negligence. The rule for this is that you may not need an expert witness if the medical professional had sole control of the source of injury, and that injury had only one possible cause: the medical professional's negligence. But even in seemingly straightforward cases, a medical expert may still be necessary. There are instances where the defense could argue that the injury was not caused by negligence, or to say that the doctor was not the only person in control.
Even the decision of whether or not to hire a medical expert can be a complex one. If you have a legal expert look over your case, you can find out if the technicalities of your case require a medical expert's testimony or not. You can also familiarize yourself with your state's requirements when it comes to filing a medical malpractice lawsuit. If you want to file a claim, then contact a medical malpractice attorney from our directory today to learn what you need to do to prepare your case.