Proving Medical Malpractice: Why Experts Matter for Your Lawsuit

By Jonathan Petty | June 22, 2018

When a doctor’s errors cause catastrophic injuries, you have every right to demand justice. We place immense trust in physicians, and medical malpractice can shatter this trust and change your life forever. However, malpractice claims against a physician, nurse, or other medical provider are highly technical. Without expert witnesses willing to testify that your medical care was inappropriate and caused your injuries, it is unlikely that your case will ever see a courtroom. In fact, you need an expert witness’ written opinion supporting your case before you can even serve your medical malpractice lawsuit on the defendant. 

Below, we’ll explain all the different reasons why an expert witness, like a doctor, can help your medical malpractice injury claim and why it’s a good idea to contact an attorney as soon as possible if you have been injured or lost a loved one due to the careless actions of a medical provider. 

An Expert is Necessary to Prove a Doctor Violated the Appropriate Standard of Care

Proving negligence is more difficult in medical malpractice claims than other personal injury lawsuits. For example, in a car crash, you have to show that the negligent driver violated a safety rule, such as a duty to yield to the right of way. Every driver has the same duties of care when they get behind the wheel and we all should understand the rules of the road.  Courts generally do not require a testifying expert witness to explain these duties and rules to a jury. 

RELATED ARTICLE: Do I Still Need to Pay My Medical Bills if I Think I’m a Victim of Medical Malpractice? 

However, a doctor’s duty of care to a patient is much more complex, and what constitutes proper medical decision-making is generally outside the common knowledge of a jury. Virginia courts judge a doctor’s actions based on practice-specific, statewide “standards of care.” Under the law, the standard of care is defined as the degree of care and treatment a reasonably prudent doctor in the same specialty would provide under a given set of circumstances. If a reasonably prudent – or careful – doctor with similar credentials in the same situation would have made different decisions, the doctor could be held responsible for a victim’s injuries. 

Virginia Medical Malpractice Claims Are Too Complicated for Judges and Juries to Understand Without an Expert’s Help

Because there are so many medical conditions and specialties, it’s virtually impossible for a judge or jury to understand the standard of care without guidance from expert witnesses.    

RELATED ARTICLE: Diagnosis Errors: A Prescription for Medical Malpractice 

For this reason, medical malpractice lawyers almost always work with experts. A skilled expert witness can help explain the appropriate standard of care, outline how the negligent doctor violated this duty, and quantify the damages that the victim suffered. They can also argue against the opinions of the other legal team’s experts. 

For example, suppose you undergo a back surgery to treat pain after a car crash. After the surgery, you still notice severe pain running down your leg, and your back pain has not gotten better. You complain to your surgeon, but they ignore your concerns and assure you that your symptoms are normal at this stage of recovery.  

Your pain does not feel normal, so you get a second opinion. Your new doctor takes a closer look and discovers that the surgeon operated at the wrong level of your spine.  

During settlement negotiations or a trial, your medical malpractice lawyer could present expert testimony from a qualified and experienced neurosurgeon. The neurosurgeon’s testimony would explain how a reasonably prudent doctor would have used interoperative x-rays and other well-known techniques to ensure that they were working on the right level of the spine. And they would do it in a way that members of a jury could understand. 

With experts testifying on your behalf, your injury claim will have more credibility, more evidence, and a respected resource who can argue with the other side. 

Your Malpractice Lawyer Must Consult With a Medical Expert Before Filing a Lawsuit

Under Virginia law, you cannot serve a defendant, such as a doctor or a hospital, with a malpractice lawsuit unless you consult with an expert witness beforehand. While you do not have to give the defendant a copy of the medical expert’s opinion, you must get a written Certificate of Merit indicating that the defendant, based on a reasonable understanding of the available facts, violated the standard of care and caused your injuries.  

If you do not meet this requirement, you might face court penalties, including the dismissal of your claim. Generally, a treating doctor will not give you this type of statement. Instead, you’ll need help from well-trained expert witnesses. 

There Are Restrictions on Who Can Serve as a Medical Malpractice Expert Witness

Under the law, an expert must demonstrate their understanding of the negligent doctor’s area of practice and have maintained an active clinical practice in that field within one year of the alleged malpractice. Typically, a Virginia physician who practices the same specialty as the negligent doctor will be deemed a suitable expert.  

It’s important to select the right expert. The insurance company’s lawyers will scrutinize your expert witnesses’ credentials. They will look for weaknesses and ways to question the expert’s credibility. Your lawyer will want to pick expert witnesses who will stand up to these attacks. 

Consult With an Experienced Medical Malpractice Lawyer Before Filing a Claim

Most malpractice victims and their loved ones can’t build an expert witness strategy without help from an experienced lawyer. You’ll need to select your own experts and present their testimony at trial. You’ll also have to assess the insurance company’s medical experts, cross-examine them, and argue against their testimony. The average person doesn’t have the right combination of legal and medical knowledge to properly handle all of these issues. 

The medical malpractice lawyers at Phelan Petty have extensive experience selecting expert witnesses and developing medical malpractice claims. We regularly work with well-respected medical experts who understand Virginia medical standards of care and who have respected medical practices of their own.  

RELATED VIDEO: Aleathia and Al S.’s Story 

Because we focus on severe cases at our law firm, we can give your lawsuit the time and resources it deserves. We use our extensive experience with medical malpractice claims to thoroughly assess every medical record, expert witness report, and legal precedent.  

Phelan Petty: We Fight for Virginia Medical Malpractice Victims 

If a negligent doctor, hospital, or other medical provider injured you or a loved one, you deserve answers. The medical malpractice team at Phelan Petty focuses on severe cases of medical negligence. We apply years of training and courtroom experience to fight for our clients and collaborate with well-respected expert witnesses. To schedule a no-risk consultation, contact us at (866) 249-3164 or fill out our simple online form. 

References 

Virginia Code §8.01-20.1. (2013). Certification of expert witness opinion at time of service of process.  

Virginia Code §8.01-581.20. (2013). Standard of care in proceeding before malpractice review panel; expert testimony; determination of standard in action for damages.  

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

Related:

Posted in Medical Malpractice