The Medical Expert Witness: A Litigation Guide


medical expert witnessWhether your client is a plaintiff or a defendant in a case related to the complex field of medicine, the testimony of an experienced expert witness is absolutely necessary. A medical expert witness must be able to examine the material facts of the case, such as medical records and lay witness testimony. As well as prepare written statements, create models and other visual aids to explain their theories, prepare written reports, and of course, provide expert testimony before the court.

Depending on the jurisdiction, the opinions of a medical expert may be based on their personal experience working in the medical field as well as academic studies and other medical publications. The expert should be able to break down the scientific, technical language and terminology so that someone without any medical training can understand the key issues of a case. In order to be afforded “expert” status, the medical expert witness must be able to state opinions with “reasonable medical certainty”. They must also aid the judge or jury in reaching a more valid conclusion about the facts of the case than they would have without the expert’s testimony.

The opinion of a medical expert witness testimony can be useful in a wide variety of cases such as:

  • Medical malpractice
  • Sexual assault cases
  • Domestic abuse injuries
  • “Bad drug” cases
  • Toxic tort claims
  • Personal injury
  • Disability claims
  • Wrongful death
  • Birth defects
  • Forensic psychiatric determinations
  • Cause of death
  • Pain and suffering evaluations
  • Matrimonial medical issues
  • Murder/assault trials
  • Worker’s compensation
  • Addiction issues
  • Blood transfusion complications

A common scenario necessitating an expert medical witness is a medical malpractice suit. In virtually any professional malpractice case, such as a medical malpractice lawsuit, the parameters of professional conduct are promulgated by the profession itself. That is, the standard of care that a physician or specialist must adhere to can be summarized by another practicing physician. The duty of care to which a physician is held in a malpractice action is “that degree of care, skill and diligence which physicians in the same general neighborhood, and the same line of practice ordinarily possess and exercise in such cases.” Snyder v. Pantaleo, 143 Conn. 290, 292 (1956).

The list of professionals that could serve as medical expert witnesses is endless. Depending on the case, you may need to hire an expert whobelongs to a highly-specialized field of medicine such as: cardiology, audiology, gynecology, sleep specialists, plastic surgery, pediatrics, anesthesiology, oncology, urology, neurosurgery, orthodontics, ophthalmology, gastroenterology, internal medicine, rheumatology, psychiatry, prison medicine, reproductive endocrinology, psychology, biochemical genetics, hematology, forensic pathology, family medicine, alternative remedies, transplant surgery, pharmaceuticals, ocular immunology, oral surgery, pain management, burn medicine, autism, microbiology, substance abuse, orthopaedic sports medicine, dermatology, geriatric medicine, pulmonology, or diagnostic radiology (just to name a few!)

Looking for a medical expert witness? Click here to find the perfect expert for any case.

Sometimes, a case requires a medical expert witness who has experience in a particular segment of the medical industry, such as a hospital administrator, department chief, medical school professor, physicians assistant, nurse, or hospice care professional. An expert who has extensive experience working within a hospital or laboratory setting will be able to lend credibility to your argument as well as opine about “the norm” in any of these settings to the judge and jury.

Below are examples of instances where the testimony of a specialized medical expert witness can prove to be critical in a case:

plastic surgery expert witnessCosmetic Surgery

 

Due to breakthrough technologies and science, there is an increase in the number of cosmetic surgery, whether elective, preventative, or rehabilitative. When surgeries are unsuccessful, the results can range from mere disappointment to serious medical complications, including death. Claims related to breast augmentation and other cosmetic surgical procedures are usually based on theories of professional negligence, breach of contract, breach of warranty, or lack of informed consent.

Because these surgeries are often elective, informed consent is an often contested matter. Issues can arise based on whether or not the patient was adequately informed of all the “material” risks associated with surgery and therefore, whether the patient gave valid, informed consent to the procedure at issue. Informed consent is a critical element in determining the surgeon’s liability.

An increasingly common cosmetic surgery option in America is breast augmentation, reconstruction, or reduction.

Case Example: Rhodes v. U.S., 2013 WL 4780095 (D.D.C. Sept. 9, 2013)

The plaintiff Shilisa Rhodes brought a medical malpractice action against the United States under the Federal Tort Claims Act. She claimed that the she sustained damages from the negligent medical treatment provided by Unity Health Care and her doctor, Dr. Jamie Hill–Daniel. Specifically, she alleged that the defendants negligently failed to refer her in a timely manner for diagnostic testing of her breasts. Also failing to take certain other steps to ensure the timely diagnosis of her breast cancer.

To establish that the defendants breached the standard of care owed to the plaintiff, Ms. Rhodes called multiple expert witnesses to establish the elements of her negligence claim. Experts who testified included two experts on the national standard of care. One expert witness in pathology, one expert witness in oncology, one expert witness in the psychology of loss and grief, one expert witness in end of life costs, and one expert witness in economics.

Finding the expert witness testimony to be convincing, the court held that the plaintiff met the burden of proof required to find that the defendant breached the applicable national standard of care. The court awarded the plaintiff nearly $4.5 million in damages.

Legal Nurse Consultant

According to the American Association of Legal Nurse Consultants, a legal nurse consultant applies the “knowledge acquired during the course of their professional nursing education and clinical experience to the evaluation of the standard of care, causation, damages, and other medically related issues in medical- legal cases.”

Legal nurse consultants participate in client interviews, identify and organize pertinent medical records, evaluate case strengths and weaknesses, identify plaintiffs’ future medical needs and associated costs, and attend independent medical examinations.

Sometimes referred to as a forensic nurse, the legal nurse consultant engages in the application of clinical and scientific knowledge to questions of law. The legal nurse consultant often provides critical expert witness testimony in lawsuits relating to traumatic injury and patient care.

Psychology

The psychology expert witness (also referred to as the forensic psychologist) plays a number of different roles in the courtroom. This witness might be called to determine purely legal questions, such as whether a criminal defendant is legally competent to stand trial or, in extreme instances, receive capital punishment. A psychology expert’s testimony is also critical in assessing whether a criminal defendant meets the standard necessary to enter an insanity defense.

For example, in the landmark case Ford v. Wainwright, an inmate who had been sentenced to death for murder appealed to the Supreme Court based on the idea that his mental health had deteriorated so rapidly since he stood for trial that his execution would constitute “cruel and unusual punishment” as prohibited by the Eighth Amendment. 477 U.S. 399 (1986).

Ford’s counsel requested that a psychologist who had treated him in the past evaluate his mental state and recommend appropriate treatment. At the conclusion of 14 months of observation and numerous interviews, the defendant’s psychologist determined that Ford suffered from severe delusions and schizophrenia. Disregarding the opinion of the psychologist, Florida’s governor signed a bill for Ford’s execution.

However, the Supreme Court held that “the first deficiency in Florida’s procedure lies in its failure to include the prisoner in the truth-seeking process . . . psychiatrists disagree widely and frequently on what constitutes mental illness . . . the fact-finder must resole differences in opinion within the psychiatric profession on the basis of evidence offered by each party.” Id. at 414. The Court noted that expert evaluation is especially useful after the defendant has stood trial. The expert has had more time to develop his opinion and there is less chance for an “erroneous decision.” Id.

In addition to providing important expert evaluation, a forensic psychologist can also be instructive in providing sentencing and treatment recommendations to the judge. In doing so, the expert can highlight any mitigating factors that may have contributed to or caused the defendant to act in a certain manner. Additionally, the psychologist can opine as to the risk that the defendant will re-offend and whether there is a danger that the defendant poses a risk to his own well-being.

Another situation which calls for a psychologist’s expertise is a litigation matter dealing with sexual abuse. Experts may be called to explain why an abused child responded in a particular way post-abuse. They can also discuss behaviors such as recantation and delayed reporting. Expert opinions in such cases are especially helpful as sexual-based crimes rarely have eyewitnesses.

Dental

In cases of dental malpractice, the dental expert witness aids the attorney in proving or contesting the claim.

Experts review and analyze medical records, discuss the standard of care, and explain how certain medications may conflict with a known concurrent medication, or the dentist may have negligently caused nerve damage. The dental expert could also lend their opinion as to whether or not another dentist neglected to refer the patient to a specialist even though the work was outside of the dentist’s purview. Or, whether the defending dentist was negligently caused damages resulting in a patient’s pain and suffering.

In a recent case, an expert witness provided testimony that the finder in fact found to be more convincing and credible than the plaintiff’s expert. The Missouri Dental Board claimed that Dr. Kerwin was negligent. To prove their claim, they called an expert to testify as to the standard of care of general dentistry. The Board’s expert testified that the Dr. Kerwin not only breached the standard of care required by a general dentist, but by telling the patient’s parents that there was no present need to see a medical doctor, Dr. Kerwin’s conduct consisted a gross deviation of the standard of care.

“[W]hen a general dentist is presented with a two-day-old infant child patient exhibiting symptoms of fever and nursing or suckling problems, the standard of care of a general dentist was not to provide any form of dental treatment to the infant patient, but instead to emergently refer the infant patient to a medical facility for medical treatment by a medical doctor.”

A qualified and well-spoke expert witness can provide critical testimony in a malpractice case.

oncology expert witnessOncology

An oncologist is generally called to testify in case related to breast cancer, melanoma, prostate cancer, lymphoma, pediatric oncology, head and neck tumors, and radiation treatment.

Experts review a prescribed chemotherapy treatment or radiation therapy to assess whether a doctor acted appropriately. They also provide expert witness testimony as to the standard of care of the choice of biopsy method. Additionally, oncology expert witnesses discuss whether a diagnosis was negligently missed or delayed and whether such negligence contributed to the patient’s injuries.

Toxicologist

A toxic tort medical expert witness is a medical toxicologist with board certification. Toxicology is the branch of biology, chemistry, and medicine concerned with the study of the adverse effects of chemicals on living organisms. A toxicologist can use their academic and clinical background to assess the adverse effects of chemical exposure.

In litigation matters involving workplace toxin exposure, mold infestation, personal injury or wrongful death claims, or the effects of exposure on an unborn fetus, a toxicologist provides critical insight and expertise.

In re Asbestos Litig., one of the defendant companies being sued for an asbestos related disease challenged the methodology used by one of the plaintiff’s expert witnesses. No. 0001 LEXIS 229 (Phila. Com. Pl. 2008). The plaintiff’s expert concluded that each and every exposure to asbestos was a substantial factor in causing the plaintiff’s disease. However, the court noted that the case studies the expert was relying on did not mention a control group in order to measure the occurrence of disease. As such, the court barred the expert’s testimony proclaiming that while the plaintiffs “presented a maze of evidence in an attempt to support their experts’ opinions . . . within this maze no recognizable methodology was found.”

This case illustrates the importance of hiring an expert witness who is adequately qualified and experienced. Experts must be able to provide a detailed explanation as to how they arrived at their conclusions and whether such methodology is generally accepted within the scientific community.

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