Identifying Medical Malpractice Expert Witnesses

Sometimes medical negligence is apparent without need for explanation.  It doesn’t take an expert to find fault when someone operates on the wrong limb or administers the wrong medication to a nursing home resident.

If medical professionals are the only ones with control over a negative outcome, and when an adverse event could only have been caused by a medical error, our legal system invokes the doctrine of res ipsa loquitur (Latin for “the thing speaks for itself.”)  Simply stated, res ipsa is the principle noting that an event could have happened only due to negligence.

Although personal injury laws and rules of evidence are determined at the state level, the elements of res ipsa are pretty standard.  For a case to meet the doctrine of res ipsa loquitur, three factors must be present:  1) the event would not occur in the absence of negligence; 2) the evidence of negligence rules out the possibility that the plaintiff’s actions caused the adverse event; and, 3) the negligent act occurs within the context of care provided by the defendant.  It is often recommended that an expert witness be consulted, even in a case of res ipsa.  The defendant’s attorney will usually challenge the notion that he or she had complete control over the circumstances.

In most cases of medical or nursing home negligence, expert witnesses are necessary to move a case forward. Lack of expert testimony can mean an early decision in an opponent’s favor – if not an outright dismissal.  The facts and language of medicine are often too complex to understand. The appointed expert will walk the jury through the maze of medicine to understand why a lawsuit was filed in the first place.

Most states require plaintiffs to consult an expert witness to determine if the medical care provided to the plaintiff met the standard of care. In the legal arena, the standard of care is the level at which the average, prudent provider in a given community would practice.  It is how similarly qualified practitioners would have managed the patient’s care under the same or similar circumstances.  The standard of care is not necessarily the best care – just the average level expected of any care provider.

When a case does require qualified professional expertise, both plaintiffs and defendants must hire someone to serve in the role of expert witness. For cases to be tried in Federal Court, the Federal Rules of Civil Procedure (Fed.R. Civ.P.), requires the selected expert to prepare a detailed report in addition to a list of the expert’s prior testimony and compensation.

Although some states follow the Federal Rules of Civil Procedure, others have different rules for dealing with experts. In some states, an expert witness will be deposed before trial so the opposing side can be fully prepared to counter his or her opinions.  In others, like New York, a legal team is not required to disclose the name of the designated expert, but they do have to provide opposing counsel with the expert’s bibliography.

What Makes A Medical Professional An Expert?

You may ask, “What makes a medical professional an expert?” One legal dictionary defines an expert as “a person who through education or experience has developed skill or knowledge in a particular subject so that he or she may form an opinion that will assist the fact finder.”

Each state has its own definition of who may be designated as a medical expert.  Some states require that professional experience must be current, either for a specified number of years or that the expert was practicing in a clinical setting at the time of the incident.  A degree from an AMA or AOA-accredited medical school are common requirements, as is board certification in the experts’ area of expertise.  An unrestricted medical license with no recent history of suspension or revocation is paramount.  Many states mandate that potential experts must devote a certain percentage of professional time to an active clinical practice, to avoid earning the reputation as a “professional witness.”

Nurse expert witnesses typically need a B.S.N. and recent clinical expertise in the same area as the defendant, with no record of legal issues or board disciplinary actions.  Certification in the expert’s nursing specialty is an added plus.

Some states adhere to different versions of a specialty rule, which requires experts to practice in the same field of medicine as the defendant physician or nurse.  A state’s locality rule obligates claimants to prove, by expert testimony, the recognized standard of acceptable professional practice in the community where the defendant medical provider practices or a similar community.  For example, many states require that potential expert witnesses in medical malpractice cases must come from the state in which the alleged incident occurred or from a state contiguous to the venue in which the alleged incident occurred.

In most state malpractice lawsuits, attorneys on both sides will know the witnesses’ identities before getting to trial. They will research each expert’s career from their education to their publications.  Every statement in an article written or testimony in cases with similar issues will be carefully scrutinized. The legal team will research the facts on which each claim is based – gleaning all it can to uncover the weak link in an expert’s opinion.

How Can An Expert Witness Be Utilized?

Expert witnesses can be used in a variety of ways.  A medical professional may appear before the court as a “fact witness.”  A “fact witness” is called to explain the medicine to the judge and jury.  His or her role is to provide “just the facts” about a case, with no opinion regarding the medical care provided.

In medical malpractice and nursing home litigation, causation is the common Achilles’ heel. The rub lies in two questions every medical malpractice suit must answer.  First, did the defendant fail to follow the standard of care for professionals in his or her position?

To answer this, a plaintiff-appointed expert may cite medical board guidelines or publications. What would industry standards expect of the defendant?  How would a conscientious colleague with the same training treat this patient?  What issues would that medical professional check for, and how would those issues be treated if diagnosed?  An expert witness need not practice a higher standard of care than the defendant.  He or she must only be conversant enough to determine that this standard was not followed.

The second question is thornier.  If there was a breach in the standard of care, did this breach cause the negative outcome or damages?  Given all the factors present, how likely was the plaintiff’s injury a result of substandard care?

The plaintiff’s goal is to find an expert who believes there is evidence of a breach of the standard of care. The defense will use its own expert to establish that the standard of care was observed – or that any deviation did not directly or proximately cause the adverse event. The plaintiff’s attorney, in turn, will get to work uncovering every possible way to challenge the defense’s expert testimony.

Finding properly credentialed healthcare professionals who are willing to offer opinions is not always easy.  So what’s the best way to choose an expert witness?  By consulting one.
Here is where a nurse’s expertise is of particular value.  Upon studying the files and medical reports, this uniquely qualified consultant can recommend appropriate specialists.

Nursing expertise is ideal in complex cases of medical and care negligence. Identifying the probable cause of a medical event takes more than simply checking blood pressure and vital signs.  A nurse is interested not only in physical agility but whether the patient has followed doctors’ and therapists’ directives and asked for assistance when necessary. This expert not only researches a patient’s diet, but whether or not the patient has adhered to the diet or eaten the food provided in a hospital or care facility. He or she would review physician progress notes, consultation reports, nursing progress notes, patient teaching records, lab results for specific issues and medication history for germane clues.

Legal nurse consultants (LNCs) are generally brought in to determine the merit of a case.  Some help attorneys formulate questions to be asked at a deposition or trial.  Some LNCs provide both consultation and testimony, while others prefer to work “behind the scenes.”

LNCs play a vital and advantageous role finding other experts for the case – from M.D. specialists to ancillary professionals like physical therapists, respiratory therapists, and pharmacists.  Nurse expert witnesses are expected to testify at a deposition and trial if needed. Unlike the LNC consulting expert, the testifying expert may or may not be required to put their opinion in writing.

Both consulting LNCs and nurse expert witnesses review medical records and deposition testimony and formulate their conclusions.  They commonly organize pertinent medical records and prepare record chronologies or timelines.  They may also research medical and nursing literature and standards germane to issues in the suit brought forth.  Both kinds of experts offer their own unique value to legal teams – and are often hired by healthcare organizations as risk managers or compliance experts.

As with other litigation, medical malpractice and long-term care cases often pit one expert against the other.  Sometimes the tipping point in a jury’s decision is how well one witness can translate technical intricacies in to language they understand.  ALN Consulting’s team of nurse consultants are in a unique position to build the strongest, most manageable court case for their clients – and boil medical-legal issues down to their essence. Contact us to learn how!