Medical malpractice is defined as “improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional.” In order to prove that a healthcare provider was negligent, and that the negligence led to a breach of duty and harm to a patient, attorneys consult with experts in the relevant fields who can testify to what the standard of care requires in certain circumstances.
In order for a person to be considered an expert, he or she must practice in the same field as the healthcare provider who is being sued. Thus, if you are suing your doctor for misdiagnosing your cancer, your expert will need to be someone whose experience and skill-set is based in diagnosing cancer – an oncologist, or someone who works in oncology or cancer research, perhaps.
What the expert does
To stay with the example, the oncologist would review your medical records and history to see if there is a breach of duty or a breach of the standard of care. If he or she agrees, the next step would be to submit an opinion claiming that negligence occurred. Depending on where the case is being tried, the attorney may need to file a Certificate of Merit: this is required in West Virginia, but Washington, D.C. has no such law.
Once all of the paperwork is filed and the lawsuit begins (provided no agreement was reached in mediation or in settlement talks), the oncologist can be called to testify during the trial. Unlike other witnesses, who must stick to the facts as they know them, “the expert witness is given more latitude. The expert witness is allowed to compare the applicable standards of care with the facts of the case and interpret whether the evidence indicates a deviation from the standards of care,” and his or her testimony “may be needed… to assist the process of determining damages.”
Expert opinion and testimony play a crucial role in medical malpractice cases, because they help to prove causation. Plaintiffs are not the only ones to use expert testimony, however; the defense is sure to have their own oncologists who will claim that no negligence occurred, and that no harm was caused in direct result of a breach of duty or care. It is entirely feasible that a jury’s decision will be based on which expert they feel is more truthful or more accurate, so it is critical that you work with a medical malpractice attorney who knows how to choose the right witness to testify on your behalf.