In a recent medical malpractice case, a plaintiff requested that the judge enforce an instruction called “res ipsa loquitur,” where jurors would automatically declare a physician negligent based on the mere presence of an injury. While there may be cases and scenarios where res ipsa loquitur – which translates to “the thing speaks for itself” – would be appropriate, there are a few issues with the implementation of this instruction in medical malpractice lawsuits.
The first issue with this instruction is that the jury’s responsibility of weighing all evidence and determining guilt in an unbiased manner is stripped away. Requesting a jury to deem a physician negligent based on the simple fact that an injury exists puts the jury in a position to side with the plaintiff in a medical malpractice case.
The second issue with this instruction is that any direct evidence that could help determine whether the defendant truly breached the standard of care, such as the testimony and expertise of medical expert witnesses, will be grossly ignored.
Why are medical expert witnesses important in litigation?
In medical malpractice lawsuits, the testimony provided by medical expert witnesses can either make or break a case. The technical information of certain medical procedures are too complex for jurors to understand. This is what makes medical expert witnesses so valuable during medical malpractice litigation. The knowledge of a medical expert witness can help jurors to evaluate the facts and reach a more informed conclusion about issues from standards of care, how injuries are caused, and the long-term effects of medical conditions.
Some of the qualities below are the criteria used to determine what makes a good medical expert witness:
Are they board-certified?
Medical experts who are actively practicing in their area of practice and board-certified are considered top-notch experts. For certain healthcare providers such as physicians, board certification is considered a mark of distinction. It is a sign that they have gone above and beyond the minimum principles for competency in their area of practice.
Do they have deposition and trial testimony experience?
While some attorneys have no issues working with qualified medical expert witnesses with little to no testimony experience, many attorneys prefer medical expert witnesses who have a significant amount of deposition and trial testimony experience. There are stages of a trial where the medical expert witness is likely to be cross-examined by opposing counsel and their medical knowledge may be challenged.
Medical expert witnesses who are more accustomed to testifying know how to combat opposing counsel and convince the jury that their opinions can be relied upon. Medical expert witnesses with deposition and trial testimony experience also have the ability to think on their feet when opposing counsel asks questions that they were not prepared to answer.
To help diminish an expert’s opinion in front of a jury, opposing counsel typically uses hypothetical questions to force a medical expert to respond, “I don’t know.” When these hypothetical questions are raised, medical expert witnesses with deposition and trial testimony experience are able to improvise and use their training to answer these hypothetical questions with more detail.
Is there any conflict of interest?
The ideal medical expert witness has no conflict of interest preventing them from testifying in a medical malpractice case. While it is rare for courts to disqualify medical expert witnesses based on conflicts of interest, the courts will not hesitate to disqualify medical expert witnesses if confidentiality concerns come into question.
Many conflicts such as affiliations with other doctors and affiliations with certain healthcare institutions can put the ability of a medical expert witness to testify in jeopardy. To avoid any issues revolving around conflicts of interest in a medical malpractice case, many attorneys choose to retain medical expert witnesses from another state or geographic region.
Are they effective communicators?
It is imperative that medical expert witnesses have effective communication skills. The ideal medical expert witness is comfortable with the technical language of their profession and can speak about their expertise without hesitation or referring through notes to assess their opinion. Medical expert witnesses also have the ability to understand the questions that are asked of them by attorneys and offer specific answers to those questions.
Last but not least, a medical expert witness who is a great communicator can summarize complex scientific, medical, or specialized facts in a condensed and understandable manner, making it easier for the judge and jury to understand what they are saying.
Are you preparing for a trial because you suffered an injury due to medical malpractice? If so, you will want to speak with the experienced Maryland medical malpractice team at Plaxen Adler Muncy, PA. Call our office at 410-730-7737, or complete a contact form to schedule a consultation. We have multiple offices throughout Maryland to serve our clients.