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Medical Malpractice & Expert Witnesses

Malpractice can be defined as an act or omission by a health care provider which deviates from accepted standards of practice in the medical community and results in injury to the patient. Many countries, including the U.S., have a specific medical malpractice law. Although the term is most often associated with physicians, medical malpractice also includes the acts and omissions of any medical care provider, which includes dentists, nurses, and therapists. Claims may also be brought against hospitals, clinics, or medical corporations for the mistakes of their employees.

Successful Malpractice Lawsuits
To bring a successful malpractice lawsuit, the plaintiff must typically prove three things:

  1. That the provider breached his/her duty of care towards the patient. That is, he/she failed to do something that a reasonably prudent provider in the same field would have done under the same or similar circumstances, or did something that no reasonably prudent provider in the same field would have done under the same or similar circumstances.
  2. That this breach caused loss or damage.
  3. That it is fair and reasonable to hold the defendant liable to pay damages for the harm caused by the malpractice.

Malpractice Insurance
Since most medical providers have malpractice insurance, a case in the U.S. usually begins as an insurance claim, made by the attorney for the patient. If liability is admitted and damages can be agreed, the case will be settled early in order to reduce the amount of costs payable. Otherwise, the plaintiff will file suit in the appropriate court. Between the filing of suit and the trial, the attorneys for the parties usually engage in 'discovery', which includes interrogatories, requests for documents, and depositions.

Medical Expert Witnesses
At trial, the plaintiff has the burden of proof. Expert witnesses are usually required to testify as to practice standards, while lay witnesses must confine their testimony to facts they perceived with their own senses. To be qualified as an expert, a person must have a sufficient level of education, training, and experience in the relevant field, and it must be shown that their testimony will assist the judge and/or jury in determining a contested issue. The law requires that lay jurors or judges, being untrained in medicine, must accept expert evidence as to whether the provider deviated from the requisite standards but since the plaintiff and the defendant will usually each hire their own experts, often there will be quite conflicting opinions.

Finding A Medical Expert Witness
When preparing a malpractice case, selecting a medical expert(s) is probably the single most important decision that an attorney will make. The impact that a physician who is knowledgeable, prepared, experienced and personable can make on a specific case cannot be over estimated. Finding a good medical expert witness is not hard, there are many online options for this. Typically, in seeking a medical expert witness one should choose from among those who are actively practicing and board certified in the specific medical specialty at issue for the particular case.

What to look for in a medical expert witness:
- an individual with a combination of medical and legal witness expertise
- an individual who is active in clinical practice (thus, unquestioned credibility)
- an individual with prestigious academic affiliations

Coming Soon
- Medical Expert Witness Database
- Guidelines for Expert Witness Testimony in Medical Liability Cases
- Detailed listings of U.S. State Medical Boards
More Soon!


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