How Is Medical Negligence Shown?

Expert Witness Testimony Usually Is Required.

image025In the ordinary negligence case (like someone running a red light), expert testimony is not required for the injured person to establish his or her case. If the case does not settle but instead goes to trial, the jury will hear the evidence and decide whether the person who ran the red light was negligent or not. In other words, a jury of laypeople is fully capable of deciding whether someone who ran a red light was “not reasonably careful” and therefore was negligent.

However, medical malpractice lawsuits are a bit different in this regard. Doctors are required to exercise “the degree of skill, care, and learning expected of a reasonably prudent doctor … acting in the same or similar circumstances at the time of the care or treatment in question….” (Washington Pattern Jury Instructions, Civil 105.01 (italics added).) If they don’t exercise the care of a reasonably prudent doctor, then they are negligent. However, jurors typically are laypeople with no medical education, training, or experience. So, they can’t draw on their own background to know what a “reasonably prudent” doctor would have done, or to decide whether the doctor in question met that standard of care. Nor do jurors typically have the medical education, training, and experience to tell if negligent medical care was the proximate cause of a medical injury.

The law recognizes this and requires that in medical malpractice lawsuits, the injured party must prove his or her case by using testimony from expert witnesses. These expert witnesses are doctors who are familiar with the standard of care in question and who can testify as to whether the doctor in question did or did not meet that standard of care and, if not, whether the failure to meet the standard of care was the proximate cause of the injury. These expert witnesses essentially equip the jurors with knowledge to help them to decide the case (assuming that the case does not settle before trial). If we represent you in pursuing a medical malpractice claim, we can advance the money necessary to hire and pay for expert witnesses to establish your case, as we may deem appropriate. Most medical malpractice lawsuits that we have handled settle before any trial, but they usually only settle because we’ve hired a highly qualified expert (actually, usually at least several experts) and convinced the defense that it would be better for them to settle the case rather than go to trial. For a discussion of how a typical medical malpractice lawsuit works, click here.

Sometimes Expert Testimony Is Not Needed.

It should also be noted that there are some occasions when an injured patient does not have to use an expert witness to prove his or her case. This occurs when the negligence is so obvious that expert testimony is not needed to prove it. This is called res ipsa loquitur, which is Latin for, “The thing speaks for itself.” An example would be where a surgical team inadvertently leaves a surgical instrument, like a clip or sponge, in a patient. However, these situations are relatively rare, and the great majority of medical malpractice cases require expert testimony to establish liability and causation.

Types of Expert Witnesses Typically Used

image033In a typical medical malpractice lawsuit, there usually are several different types of experts used. This is best illustrated by way of example.

Let’s assume that there is a 45-year-old male patient (let’s call him “Joe”) who goes to see his family practice doctor for his annual checkup. As part of that checkup, an EKG is done to assess Joe’s heart. The EKG shows some serious abnormalities that could lead to a heart attack if not addressed. However, the family practice physician does not recognize these abnormalities on the EKG and so does nothing to advise Joe or refer him to a cardiologist for further workup and care. Five months later, Joe suffers a massive heart attack that renders him not quite an invalid, but pretty close to it. He was earning $45,000 per year as a plumber, but he can no longer perform manual labor after the heart attack. Joe is married with two children.

In this case, the expert witnesses used typically would include a family practice doctor, a cardiologist, a “life care planner,” and a forensic economist. The family practice doctor would be necessary to testify as to what the family practice standard of care was in interpreting EKGs, in other words, whether the family practice doctor should have been able to detect the abnormalities and then refer Joe to a cardiologist. Although a cardiologist technically likely could testify as to the family practice standard of care (if he or she showed familiarity with that standard), Joe’s lawyer probably would want to retain a family practice physician expert to testify as to the family practice standard of care and to testify that the treating family practice physician breached that standard of care.

The cardiologist would testify as to proximate causation. The causation issue is whether, had Joe been timely referred to a cardiologist, a medical or surgical intervention would have altered Joe’s course and avoided the heart attack. Although a family practice physician technically could offer his or her opinion on this topic, it would be more convincing for a specialist in cardiology to do so. So, let’s assume that the family practice expert testifies that the family practice doctor who treated Joe should have realized that Joe’s EKG showed warning signs of serious cardiac disease and should have referred Joe to a cardiologist (in other words, that it was a breach of the family practice standard of care for Joe’s family practice doctor not to have recognized the warning signs on the EKG and not to have referred Joe to a cardiologist). Let’s also assume that the expert cardiologist testifies that had Joe’s family practice doctor referred Joe to a cardiologist, a prudent cardiologist would have recommended that Joe undergo coronary bypass surgery or other intervention, which would have prevented the heart attack. Also assume that Joe testifies that he would have agreed to by-pass surgery or other intervention, if recommended by a cardiologist.

At this point, Joe (called the “plaintiff” in a lawsuit) has established his “case-in-chief.”

However, more expert testimony will need to be offered. For instance, if Joe now is essentially a semi-invalid, he will need help doing some (and perhaps many) of his activities of daily living. He may need a wheelchair to get around. He may need to make modifications to his bathroom to be able to more easily use it. He may need someone to do the ordinary household duties that he used to do, like mowing the lawn, washing the car, and other household maintenance and repair. Since Joe no longer can perform manual labor, he also has suffered lost earnings and a loss of earnings capacity. In these types of situations, a life care planner and a forensic economist would probably be used. A life care planner is an expert who can work with the other experts to create a reasonable plan of care for Joe, taking into account his future medical and other needs, including his need for help with his activities of daily living. A forensic economist is a type of expert who specializes in calculating the monetary loss to injured victims of negligence, including how much they would have earned if they had not been injured.

And, other experts may be necessary, depending on the situation. Perhaps Joe becomes extremely depressed because of his semi-invalid condition. Perhaps the massive heart attack caused some brain damage due to lack of oxygen during the event. If so, then additional experts may be needed to talk about damages, such as a psychologist, neuropsychologist, and/or neurologist.

In any event, in a typical medical malpractice case, a number of experts are usually needed. This, obviously, becomes quite expensive, and that does not even include the expenses of taking depositions and other case workup expenses. The total litigation expenses in a medical malpractice case often fall somewhere between $60,000 and $140,000, sometimes less and at times much more, before resolution of the lawsuit is had. We advance these expenses, with the understanding that they will be charged back at the conclusion of the case and deducted from the client’s share of a settlement or judgment. (For a further discussion of how litigation expenses and other costs are handled, click here.) Because litigation expenses in a medical malpractice lawsuit can be so substantial, we (and we believe most other medical malpractice plaintiffs’ lawyers) usually will only take cases of serious injury or death, where we believe that the case can be resolved for an amount of money sufficient to pay the litigation fees and expenses and still leave the client with a substantial recovery.

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There are many ways that medical errors happen. If you would like us to evaluate whether a healthcare provider may have made a medical error and caused substantial harm to you or a loved one, contact us and ask. You may contact us either by phone, by e-mail, or by filling out the brief confidential questionnaire on the left. It is free.

We handle cases throughout all of Washington.