When a medical malpractice case is resolved and the client receives a list of the costs that need to be reimbursed from the client’s share of the recovery, the largest amount is almost always the cost of expert review and testimony. Why do expert witnesses add to the cost of medical malpractice cases?
The law provides that, when a jury composed of lay people cannot reach ultimate fact conclusions without guidance, an expert witness must provide that guidance. The basic fact for a jury to decide is whether the health care provider violated the “standard of care” in providing health care. The standard of care is defined as that which a reasonably prudent provider would do in the same or similar circumstances.
It is presumed that, with a few exceptions, absent expert testimony a lay person cannot determine whether the standard of care was violated. In many cases, this is the basic “battle of the experts” that occurs in a medical malpractice trial, with differing testimony from experts for both sides. Exceptions to the need for standard of care experts are cases where the negligence is obvious, for example when a surgical instrument is left inside a patient or the wrong body part was operated on.
Often, standard of care experts are just the beginning. The plaintiff must also prove what injury was caused by the negligence. In many cases, that is a major area of dispute. Did a six-month negligent delay in diagnosing a condition cause damage to the patient? Again, this issue requires expert testimony to assist a jury in deciding that fact issue. Sometimes, that issue requires more than one expert. For example, a delay in diagnosing a post-operative hematoma may require a surgery expert and a neurologist. If an issue is whether an imaging film should have pointed toward a hematoma, a radiology expert may also be required.
Even after the negligence and causation experts are supportive, the burden is on the plaintiff to prove exactly what damages were caused by the error. A good example is a birth trauma case, where the claim is that a delay in doing a cesarian-section resulted in hypoxic ischemic encephalopathy (brain damage) because of a period of lack of oxygen getting to the baby’s brain. Liability experts may include nurses, obstetricians, and neuroradiologists. Obviously, each of these expert witnesses will add to the cost of medical malpractice cases.
In addition, the harms and losses caused by the brain damage, such as loss of mobility, ability to speak, and need for future care almost always have to be proved through expert testimony, which may come from pediatricians, pediatric neurologists, pediatric development experts, psychologists, and life-care planners. When an attorney is considering whether to take on a case, the attorney must consider the complexity of the case and what experts will be needed to prosecute the claim. The larger the amounts at stake and the more complex the medical issues, the more money will be needed. That money is almost always advanced by the attorney, to be paid from the proceeds.
