Using Expert Witnesses to Demonstrate Breach of Duty
Medical malpractice actions are very complex legal actions that require careful strategy and case management in order to get the right results for individuals that need the funds to pay off mountains of medical treatment debt, replace lost wages and benefits, and compensate for serious pain and suffering. In order to present a successful medical malpractice case, it is necessary to retain the right medical expert who can explain the applicable standard of care, discuss how the medical professional or facility breached that duty, and the nature of the harm that the breach caused. In most states, it is a requirement for a medical malpractice attorney to consult with a qualified medical expert before commencing a legal action. The expert either prepares and executes an offer of proof asserting that he or she believes malpractice occurred or the attorney affirms that he spoke with an expert and believes there is a valid basis for the case to move forward.
Elements of a Medical Malpractice Case
A successful medical malpractice case is based on proving the following elements:
- There was an established relationship between the person who was injured and the medical professional who caused the harm – this is critical because the person who was injured must have had a reasonable basis for relying on the professional skills of the person who was negligent;
- The doctor or other medical professional breached the applicable standard of care when providing services to the person who was injured;
- The breach of duty was the direct and proximate cause of the injury that the victim suffered; and
- The person suffered from harm that can be quantified through an award of damages.
One of the most difficult elements of a medical malpractice case is satisfying the burden of demonstrating that the actions of the doctor or other medical professional were negligent. It is not enough to simply show that something went wrong, as there are no guarantees that a procedure will lead to a positive outcome. The courts take a hard look at the allegations in a medical malpractice case, as do the insurance companies that represent the medical professionals, so it is crucial to have an expert who is effective at communicating the basis of the negligence claim, which means providing testimony that establishes the duty of care to which the medical professional was expected to adhere and the manner in which the doctor or other medical professional deviated from this standard and caused the preventable injury.
Establishing the Applicable Standard of Care
A medical malpractice case is based on the premise that a medical professional is obligated to provide a level of care that is consistent with that of a reasonable person with the same training and experience and practicing under the same general circumstances (i.e., a similar community). This standard is expandable to every type of medical specialization, regardless of the years of intensive training. An expert in a medical malpractice case is expected to have the level of expertise necessary to provide an informed opinion on the nature of the treatment or aid that was rendered and the problems with the care that was provided. Most medical experts have specialized in the same field as the healthcare provider who is alleged to have committed malpractice. Although it varies from state to state, the expert must meet specific requirements, which might include actual practice of medicine, time spent as an instructor, and a limitation on the percentage of his or her professional career spent acting as an expert witness. Often, defense attorneys will attack an expert’s qualifications in order to undermine a case, so it is important to have an experienced medical malpractice attorney who understands how to select the right medical expert.
The standard of care is based on what another medical professional would have done under the same circumstances, which is what the expert’s testimony is intended to establish. Once the expert has explained the medical standard of care that applies to a particular case, he then must walk the trier-of-fact through the manner in which the defendant deviated from that standard of care, thus establishing the critical breach of duty. The expert also must provide details about how the medical professional’s actions led directly to the harm suffered by the patient.
The testimony of the medical expert, based on a careful analysis of all the medical records and an examination of the patient, if possible, forms the core of the medical malpractice case. It is crucial to retain an attorney who will make the right selection.
Stern Law, PLLC Advocates for Medical Malpractice Victims
Medical negligence has terrible consequences for a patient and his or family, resulting in horrific debt, ongoing treatment, and debilitating pain and suffering. At Stern Law, PLLC, our attorneys have fought to get victims the compensation that they deserve for more than 30 years. In addition to legal representation for our clients, we have compassionate staff available to answer questions 24 hours a day, seven days a week, for anyone who has a question or concern about medical malpractice, regardless of whether or not you are our client. Call us at 1-844-808-7529 or fill out an online contact form in order to learn how we can help you get through this difficult time.
