One thing that is constant in medical malpractice cases of all kinds is the need for expert testimony. Experts are required by the court rules when there is an issue that ordinary jurors do not have the experience or knowledge to judge.

Most medical malpractice cases involve a determination by the jury as to whether the “standard of care” was violated, and the standard is what a reasonable and prudent health care provider would do in the same or similar circumstances. This almost always requires testimony by a medical expert as to what is reasonable and prudent under the circumstances of the case.

Most often an expert testifying about the standard of care in a case must be from the same specialty as the defendant. In fact, in some states that is required. In Washington, however, there are a few instances in which a doctor from a different specialty can testify about the standard of care of the defendant health care provider.

Examples are when different specialists perform the same procedure, such as podiatrists and M.D. foot surgeons, or orthopedics and neurosurgeons who both perform spine surgeries. A Washington case also allows a doctor to testify about the nursing standard of care if he/she works with nurses in a particular field and is knowledgeable about the nursing standards.

In addition, almost all medical malpractice cases involve issues of causation: was the injury or death caused by the negligent medical care? This is also an area where expert medical testimony is almost always required, since jurors do not have the background to make that decision on their own.

There are a few exceptions to the requirement for expert testimony: usually these involve medical care that is so clearly outside the ordinary that a lay jury can decide without expert help. Examples are surgery on the wrong limb or wrong site of the body, or objects that are inadvertently left in the body after surgery. But even in those cases, the causation link between the event and the harm will usually require expert medical testimony.

Finding an expert can be a challenge for a lawyer representing an injured patient. Generally speaking, it can be difficult because many doctors do not want to testify against another doctor. And for many specialties, such as neurovascular surgeons who do brain surgery, the number of potential experts is not large, and most of them know the defendant doctor or his colleagues through meetings or conferences.

The pool of potential experts is therefore small, so finding and retaining a qualified expert takes time and money. There are many “services” that provide expert referrals, ranging from national firms who sign up doctors for their expert group to nurses who specialize in finding experts.

Many firms, such as ours, rarely will use services such as these, in part because of concern that the expert’s work with an expert service will come out at trial and influence a jury’s perception of the expert as a “hired gun.” Similarly, some experts advertise in legal publications and this raises the same concern for lawyers who might use them.

In most cases, our firm uses our existing contacts in the medical field to locate experts. For example, if we have worked with a pharmacologist at a medical school, we might ask her/him to suggest colleagues in a different specialty at that medical school.

We also rely on suggestions by other lawyers whom we know personally or with whom we exchange e-mails on one of the “listserves” used by attorneys. Occasionally, we will search the medical literature for articles that are specific to our medical issues, and contact the authors to see if they would be willing to serve as a consultant or expert in a case.

Not only is finding an expert sometimes challenging, it can be quite expensive to hire one. This can be particularly true finding a doctor in a specialty field, such as neurosurgery, who is willing to testify in a case against another neurosurgeon. The charges can be quite high: it is not uncommon for specialty experts to charge as much as $600-1,000 an hour or more to review records and discuss the case with an attorney.

In most cases, the strength of a plaintiff’s case depends on the “quality” of the expert, both in terms of experience and knowledge and ability to explain complex medical issues. Without an articulate and personable expert, a jury often won’t understand or accept the opinions being offered.

But when both sides have good experts, which is often the case, research has indicated that juries tend to “tune out” the experts and view both sides’ experts simply as hired consultants. As one juror told me: “obviously the expert will support the lawyer’s case or he wouldn’t have hired him.” Juries often rely on their own experiences, knowledge, and common sense in filtering the experts’ opinions and reaching a decision. But as all medical malpractice attorneys know, you don’t even get to the point where the jury will consider your side of the case unless you have qualified and articulate experts presenting the medicine to the jury.