Whether 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.
1) Medical Malpractice Claims
The list of professionals that could serve as medical expert witnesses is nearly endless. An expert who has extensive medical training and experience in a hospital, private practice, laboratory, or other setting relevant to your case will be able to opine on the standard of care and bolster the credibility of your argument in the eyes of the judge and jury. 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. Depending on the case, you may need to hire several experts who belong to a variety of highly-specialized medical subspecialties.
When litigating a medical malpractice claim, proving physician negligence depends on comparing what the accused physician did (or failed to do) against the standard of care within the medical specialty. 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). Essentially, if a reasonable and competent doctor under the same conditions would have provided different care that could have altered the patient’s circumstances, then the treating physician has likely committed malpractice.
Misdiagnosis, Delayed Diagnosis, and Failure to Diagnose
Misdiagnosis, delayed diagnosis, and failure to diagnose account for a large percentage of medical malpractice complaints. According to a Mayo Clinic research study, more than 20% of patients with serious conditions are misdiagnosed by their primary care providers. Some of the most frequently misdiagnosed conditions are cancer, heart attack, stroke, celiac disease, fibromyalgia, and thyroid conditions. When a physician misdiagnoses, or fails to diagnose, a condition, the patient is at a high risk for missing critical treatment opportunities that can prevent devastating consequences, serious harm, or death.
The plaintiff, Shilisa Rhodes, brought a medical malpractice action against the United States under the Federal Tort Claims Act alleging the defendants, Unity Health Care and her doctor, Dr. Jamie Hill–Daniel, failed to refer her for diagnostic breast testing in a timely manner and failed to take the appropriate steps to diagnose 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 delayed diagnosis claim. The experts who testified included one in pathology, one in oncology, one in the psychology of loss and grief, one in end of life costs, and one 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.
Surgical errors are another common medical malpractice claim and generally occur as a result of poor or missed communication. These claims can run the gamut from leaving medical instruments inside the body, or causing infection by using contaminated surgical instruments, to catastrophic mistakes such as puncturing internal organs, operating on the wrong side of the body, or amputating the wrong limb.
Transplant surgeries are tricky procedures that require precise research, planning, timing, and execution. Although transplant surgeries have never been more successful, about 25% of kidney recipients and 40% of heart recipients experience organ rejection in the first year after transplant, making transplant physicians prime subjects for malpractice lawsuits.
Additionally, due to breakthroughs in medical science, the number of elective, preventative, and rehabilitative cosmetic surgeries has increased. When these surgeries are unsuccessful, the results can range from mere disappointment to serious medical complications – up to and including death. Claims stemming from plastic surgery complications are usually related to professional negligence, breach of contract, or lack of informed consent.
Surgical Specialties: General Surgery, Oral Surgery, Maxillofacial Surgery, Pediatric Surgery, Plastic Surgery, Thoracic Surgery, Transplant Surgery, Vascular Surgery, Surgical Nursing, Neurosurgery, Hematology, Rheumatology, Gastroenterology, Dermatology, Pulmonology, Orthopedic Surgery, Urology, Internal Medicine, Biochemical Genetics, Immunology
Several months after a patient had an intrauterine pressure catheter (IUPC) inserted, she began to experience stabbing pain in her pelvic region. An ultrasound and x-ray later revealed that the foreign object was an 11.3–centimeter portion of the IUPC that the surgical team nurse had failed to properly remove. This case required a legal nurse consultant to opine on the standard of care for nurses assisting in surgery.
Sometimes referred to as a forensic nurse, a legal nurse consultant engages in the application of clinical and scientific knowledge to questions of law. 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.
In this case, the legal nurse consultant provided critical expert witness testimony regarding the traumatic injury caused by negligent patient care.
Childbirth Errors and Birth Defects
Nearly 20% of all medical malpractice cases are filed against obstetricians, gynecologists, OBGYNs, and maternal fetal medicine physicians. Both a mother and an infant can be victims of medical malpractice during pregnancy or childbirth. There are a few types of childbirth-related medical malpractice claims:
- Childbirth Injuries — this includes injuries to the child or mother. There are many fetal injuries that can be caused by an obstetrics or maternal fetal medicine physician’s negligence during childbirth. For the infant, these can include nerve damage, brain injuries, fractured bones, shoulder dystocia, spinal cord injuries, umbilical cord injuries, and cephalohematoma. For the mother, these can include postmortem hemorrhage, unnecessary cesarean section, and more.
- Prenatal Negligence — this includes a physician’s failure to recognize critical complications during the patient’s pregnancy. Complications can include ectopic pregnancy, medical conditions or contagious diseases that could affect delivery, the baby’s size, and fetal distress, among others.
- Wrongful Birth — this occurs when parents are not made aware of birth defects that would lead them to avoid or terminate the pregnancy.
- Wrongful Pregnancy — when an attempted termination fails. This could be a result of an incompetent use of forceps or vacuum extractor.
To successfully litigate a birth injury case, you will need to prove that the damages were directly caused by the physician’s negligence and not previous health conditions or unavoidable circumstances of the pregnancy or birth itself.
A patient diagnosed with gestational diabetes went into labor at 34 weeks gestation. The patient requested Cesarean section delivery, but the nurse ignored the request. During delivery, the baby developed shoulder dystocia and was delivered with a subgaleal hemorrhage. The expert reviewed the patient’s risk profile and discussed the obligations of the obstetrics/gynecology nurse when a patient requests delivery by Cesarean section.
Anesthesia can interact with the body in unexpected ways. Even a small error by an anesthesiologist can cause a patient permanent injury, brain damage, or death. Mistakes in anesthesia generally happen when an anesthesiologist fails to thoroughly read a patient’s medical history. Anesthesiologist negligence could include prescribing anesthesia that the patient is allergic to, administering too much or too little anesthesia, failing to monitor a patient’s vital signs, using defective equipment, or improperly intubating the patient. Informed consent is also critical in anesthesiology. An anesthesiologist may also be liable for failing to warn patients to properly follow preoperative instructions.
An elderly patient with a complicated medical history underwent elective lumbar discectomy for radicular pain. In the hospital, the patient was mistakenly deemed a mild systemic disease risk when his records indicated that he was at severe risk. During surgery, the patient experienced multiple hypotensive episodes and coded. An expert anesthesiologist discusses means of assessing a patient’s preoperative risk before surgery and instances when an anesthesiologist may benefit from additional information supplied by the primary care physician.
Medication errors, or adverse drug events, account for more than 3.5 million physician office visits and 1 million emergency department visits each year. In an outpatient setting, negligence by the physician or pharmacist can lead to patient errors, as can errors in communication. In an inpatient setting, negligence can stem from the attending physician or hospital nurse responsible for administering the medication, as well as a miscommunication between them.
Failure to properly review a patient’s medical history is often the source of medication errors. These errors can include prescribing the wrong medication or dose, administering the wrong medication or dose, failing to account for potential prescription drug interactions, and failure to warn patients of side effects.
Medication Specialties: Pharmacy/Pharmacist, Pharmacology, Clinical Pharmacology, Pharmacoepidemiology, Psychopharmacology, Pain Medicine Physician, Drug Safety Specialist, Compounding Pharmacy, Neuropharmacology, Pharmaceutical Industry, Pharmacotherapy
A postmenopausal patient was prescribed the hormone supplement medroxyprogesterone to prevent overgrowth of her uterine lining. When the patient went to the pharmacy to pick up her medication, she was accidentally dispensed a high dosage of methotrexate, an immunosuppressive used to treat rheumatoid arthritis. This pharmacy error caused methotrexate poisoning, which lead to irreparable kidney damage in the patient. She would eventually require a kidney transplant.
Facility administrators manage hospitals, outpatient clinics, hospices, and drug-abuse treatment centers. Administrators ensure facilities operate efficiently and provide adequate medical care to patients. They act as liaisons between medical staff and department heads and coordinate all facility activities.
Administrative errors or malpractice can involve the negligent hiring or supervision of employees, communication errors that affect the outcome of a patient’s treatment course, or failure to follow facility policies established by governing boards.
Administrative Specialties: Hospital Administrator, Department Chief, Medical School Professor, Physicians Assistant, Director of Nursing, Hospice Care Professional, Electronic Health Record (EHR) Administrator
A self-injurious autistic patient living in a long-term care facility had been identified as a risk to her own well-being. The facility’s staff was aware of her condition, but there were allegedly no precautions taken to prevent the patient from harming herself. The patient later flung herself down the stairs and suffered a fatal head wound.
A seasoned hospital administrator with years of experience treating patients with intellectual and developmental disabilities was called to review whether the standard of care was adhered to. The expert discussed the necessity of creating effective care plans and behavioral support plans. As per the expert’s assessment, data should be collected and an individualized treatment plan should have been developed for the patient.
2) Personal Injury Claims
Personal injury is an umbrella term that can refer to any injury sustained to the body, mind, or emotions due to an accident caused by the fault of another party.
Traumatic Brain Injury
Cases of life-altering injuries, such as traumatic brain injury (TBI) are common personal injury claims that require medical expertise during the litigation process. According to the CDC, approximately 1.5 million people in the U.S. suffer from a TBI each year, 50,000 people die from TBI each year, and 85,000 people suffer long-term disabilities. The top three causes of TBI are car accidents, firearms, and falls.
When litigating a traumatic brain injury case, experts that may be useful include neurologists and neuropsychologists, who can assess the extent of the patient’s TBI and discuss the cognitive impairments that can occur as a result. Depending on the severity of the injury, a life care planning expert may also be useful in projecting the cost of ongoing care throughout the patient’s life.
A plaintiff involved in a car crash hit his head on the windshield of his vehicle, causing a traumatic brain injury. The extent of his neurological injuries prevented him from returning to work, and he remained on disability. Experts in neuropsychology conducted independent medical evaluations of the patient’s cognitive impairments and identified the necessary ongoing treatment methods that the patient would require — including medical treatments, psychotherapy/behavior management, and psycho-education.
Pain and Suffering Evaluations
Certain personal injury claims may require the perspective of a medical expert witness to discuss pain and suffering. These witnesses will most frequently be called to discuss the life-long implications of any injuries sustained by the plaintiff. The two types of pain and suffering include:
- Physical Pain and Suffering — bodily injuries sustained as a result of the incident that affect the plaintiff’s quality of life.
- Mental/Emotional Pain and Suffering — any emotional trauma that a plaintiff experiences as a result of the incident including emotional distress, PTSD, depression, fear, anger, humiliation, and anxiety, among others.
Disability Claims & Life Care Planning
Although the majority patients only require medical care for a short time, some patients who have suffered debilitating illnesses or injuries may require round-the-clock care throughout their lives. Permanent disability means more than pain and suffering; it also comes with difficulty finding work and income loss over the course of the victim’s life.
This amount of care often requires a great deal of planning. The two primary experts that victims of permanent disability can consult are life care planners and vocational rehabilitation counselors.
- Life Care Planner — a type of case management nurse responsible for creating a care plan for the rest of a patient’s life. Life care planners must be able to understand the necessary treatments for different medical problems while also taking their patients’ wants, needs, and abilities into consideration.
- Vocational Rehabilitation Counselor — Vocational rehabilitation counselors assist disabled clients that have experienced career-related difficulties find gainful employment.
A week-old infant was diagnosed with jaundice and admitted for a transfusion but an MRI showed severe brain damage. The child required a lifetime of ongoing care, and was assessed by a life care planner in order to project the expense of this care throughout his life.
A slip and fall accident left a nanny permanently paraplegic and unable to find work in her profession. A vocational rehabilitation expert evaluated how the injury would impact the plaintiff’s work-life expectancy, and completed a rehabilitation assessment and assessment of her loss of earnings.
3) Toxic Tort & Workers Compensation Claims
Toxic tort and workers compensation cases involve the detrimental medical effects, and often, wrongful death, as a result of workplace contamination, toxin exposure, mold infestation, environmental pollution, or factory/power plant runoff. In these such litigation matters, toxicologists and epidemiologists can provide critical insight and expertise.
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. Epidemiology is the study of diseases in populations of humans or other animals, specifically how, when, and where they occur. An epidemiologist can use statistics to establish and quantify the relationships between risk factors and disease.
Case Example: Re: Asbestos Litigation C.A. No.77C-ASB-2
This case called the question of whether plaintiffs in asbestos litigation can reliably establish a medical or scientific link between exposure to so-called automotive friction products and asbestos-related disease — specifically mesothelioma and lung cancer.
One of the defendant companies being sued for an asbestos-related disease challenged the methodology used by one of the plaintiff’s expert witnesses. The plaintiff’s expert, an epidemiologist, concluded that each and every exposure to asbestos was a substantial factor in causing the plaintiff’s disease, saying, “a positive association does exist with respect to exposure to friction products and the development of mesothelioma and, perhaps, asbestosis.” 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.
4) Criminal & Insanity Defense
A forensic psychologist or psychiatrist might be called as an expert witness to weigh in on pivotal questions in criminal defense cases, such as whether a criminal defendant is legally competent to stand trial or, in extreme instances, receive capital punishment. A psychiatrist expert’s testimony can also be critical in assessing whether a criminal defendant meets the standard necessary to enter an insanity defense.
In addition to evaluating defendants, a forensic psychologist can also highlight the factors that may have contributed to the defendant’s actions and opine on the risk that the defendant will reoffend or still poses a risk to their own well-being. This expert insights can provide sentencing and treatment recommendations to the judge.
Case Example: Ford v. Wainwright No. 85-5542
In this landmark case, 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,” prohibited by the Eighth Amendment. 477 U.S. 399 (1986).
Ford’s counsel requested that a psychiatrist 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 psychiatrist determined that Ford suffered from severe delusions and schizophrenia. Disregarding the opinion of the expert, 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 resolve 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 was especially useful after the defendant had stood trial. The expert time to develop his opinion decreasing the chance of an “erroneous decision.”
5) Sexual Assault & Domestic Abuse Claims
Any litigation dealing with sexual abuse or domestic abuse may require a expertise from a number of different medical experts. Depending on the fact pattern of the case and the age or gender of the parties involved, the court may call experts in psychology (behavioral, clinical, etc), child psychiatry, child abuse/neglect, nursing, pediatrics, OBGYN, forensic examination, among others. These types of experts can discuss behaviors such as recantation and delayed reporting. Expert opinions in such cases are especially helpful as sexual-based crimes rarely have eyewitnesses.
Defendant Michael Goddard challenged the use of expert testimony in his criminal trial for sexual assault. Goddard pled guilty to sexual abuse of a child and was sentenced to four years suspension and probation. Goddard violated his probation by molesting the children of his then-girlfriend and refusing sex offenders’ treatment. Through the use of expert testimony, the court ruled that Goddard was a sexually violent predator and was ordered confined by the Department of Mental Health (DMH).
Expert Witness: The State of Missouri sought the expert opinion of a licensed medical professional, Dr. Rintu Khan. The state sought to use Dr. Khan’s medical expertise in establishing the elements of the Goddard’s mental abnormality. Based on his experience in clinical psychology and actuarial evidence, Dr. Khan testified that Goddard should be deemed a sexually violent predator, claiming that Goddard was, “more likely than not to engage in future predatory acts of sexual violence” if not confined for treatment.
After reviewing the trial court’s evidentiary ruling, the Court held that Khan’s methods were consistent with Daubert.
6) Addiction Evaluation & Care
Addiction care experts are often called upon to evaluate a patient’s status and determine the necessary treatment. They may be involved in constructing a short or long-term care plan or referring the patient to the proper facility or specialist for care.
Addiction malpractice claims can occur for a variety of reasons, including negligent or overprescription of medication, failure to diagnose or treat a high-risk patient, incorrectly evaluating a patient’s condition, and more.
A victim of human trafficking with a history of psychosis and multiple suicide attempts was admitted to a hospital after overdosing on antidepressants. The attending physician intended to keep the patient at a psychiatric facility for a minimum of 4 weeks. After one week of treatment, however, the patient was discharged, allegedly showing remarkable improvement. The night the patient arrived home, he hung himself in his bathroom.
An expert forensic psychiatrist reviewed the case files and opined that the patient should have been seen by a psychiatric consultant immediately upon arrival to the hospital. The expert claimed that based on the risk for suicide, this patient should have been recommended psychiatric hospitalization. He claimed that if the patient had refused, the psychiatrist or primary provider should have filed for involuntary commitment for inpatient treatment.
7) Elder Abuse Claims
Elder abuse cases involve any form of physical, emotional, sexual abuse, or neglect at the hands of a nursing home facility or other caretakers. The court will consider three factors when pursuing an elder abuse lawsuit:
- Duty of care: Does the law require the facility to meet a certain standard of care?
- Breach of duty: Can it be proven that the facility did (or failed to do) something that caused the patient harm?
- Suffered harm: Did the patient suffer some form of physical, mental, or financial harm as the result of the abuse or neglect?
An elderly dementia patient a history of frequent falls suffered a fatal fall while in an assisted living facility. Although the patient required round-the-clock supervision, the nurse assigned to the patient left him alone for several minutes after feeding him lunch. In the time that the patient was alone, he wandered down the hallway and fell. An expert geriatric physician was called to discuss what preventive measures should have been taken to mitigate the fall risk for this patient. The expert ultimately called for increased supervision and protective measures for patients that do not have the capacity or judgment to exercise the necessary caution.
8) Prisoner Abuse Claims
According to the Constitution, state prisoners are entitled to healthcare benefits and prisons are obligated to provide their prisoners with adequate medical care. Prisoner abuse claims occur when facility staff refuse or delay a prisoner’s access to medical attention, rely on non-medical factors when making treatment decisions, fail to follow a diagnosing physician’s treatment plan for a patient, use excessive force against sick prisoners, and more.
An incarcerated woman with headaches was seen by a correctional physician and diagnosed with a chronic pain disorder. Within a few weeks, the patient was complaining of severe headaches. She was seen by the same correctional physician who prescribed an over-the-counter anti-inflammatory. The patient continued to complain of debilitating headaches to the correctional nurses every other day but no blood work, cultures, or imaging studies were ever performed. The patient eventually suffered a seizure in her cell and died. It was later discovered that the patient had a large brain abscess.
The chief medical officer of a county sheriff’s department was called as an expert for the case. According to his assessment, if a headache is persistent, further imaging is recommended. A complete workup would include a head CT, lumbar puncture, and labs. The expert concluded that it is out of the scope of nursing staff to make a diagnosis and form a treatment plan without knowledge of a supervising physician.
9) Determining Cause of Death
In cases of wrongful death, homicide, and the unexplained death of a child, a forensic pathologist may be called upon to determine the cause of death. Pathology involves the study and diagnosis of disease through autopsy and gene marker assessments. Pathologists specialize in a wide range of diseases, including cancer.
An otherwise healthy woman who suddenly died after being discharged from her local hospital. She was seen by an emergency room physician who requested an EKG and a CXR. Both tests showed no abnormalities, and the patient was discharged with no diagnosis. Two weeks later, the patient collapsed while at work and died.
A board-certified anatomic and forensic pathologist was called to examine the body and determine the cause of death. The autopsy revealed a mediastinal abscess, a bacterial infection in the lung, and fat build-up on the artery walls. According to the expert, the issue of highest importance contributing to the cause of death was the abscess location and the expansion into a disseminated infection.
Selecting A Medical Expert Witnesses
When selecting experts to testify, attorneys must be cognizant of the particular specialty of their medical expert in order to make the strongest case. Medical care almost always involves input from multiple practitioners at different stages of treatment. As a result, litigating medical malpractice cases, or any case with a medical component, may require more than one medical expert witness.
The best medical experts are the ones who can clearly articulate the medical treatment process to a judge and jury without intimidating or confusing them. When first discussing your case with a prospective medical expert witness, ask them pointed questions to gauge how effective of an expert they could be. Make sure to select an expert who breaks down technical jargon and simplifies complex topics. Keep in mind that the success of a medical case often hinges on the expert testimony. That being said, how an expert details errors that may have been committed and conveys their analysis can indicate how successfully they will perform in front of a jury.
This post has been updated as of September 26, 2018.