When an attorney is confronted with specialized factual or legal issues with which they are unfamiliar, in addition to researching and learning about the issue personally, the attorney should consider engaging or consulting with an expert in the specialized area. Medical malpractice plaintiff attorneys must seek out the opinion of an expert witness as a matter of course because they cannot accept to represent and/or prosecute a claim without the aid of one.
The Role of Plaintiff Experts in Medical Malpractice Cases
Expert witnesses play a critical role in the prosecution of the medical malpractice claim. Whereas the defense counsel reflexively recruits an expert witness once a claim has been filed, the plaintiff's attorney must seek out and pay an expert witness to review a case before a claim is even filed. In the course of a pre-suit investigation, the expert witness may even advise the attorney not to take on the would-be plaintiff as a client, because there is no merit to their case. In addition to the plaintiff attorney's own vigorous, cursory research into the matter which could inform their decision to take the case, the fate of plaintiff's claim rests heavily on the shoulders of the expert witness - who must make a determination of merit, advising both plaintiff and attorney whether or not this claim could stand up in a court of law. An expert opinion is required prior to the filing of a claim in the prosecution, while it is not required until after the claim has been filed for the defense, this is one of the chief distinctions between the provisions of expert witnesses for the prosecution and the defense.
Experts are meant to assist the “trier of fact” (judge or jury) in areas with which the trier has no experience. There is no limit to the number of experts each party can present, so long as the expertise of each is different and the opinion unique and relevant to the case.
The Difficulty of Acquiring Plaintiff Experts
Plaintiff attorneys confront a great deal more difficulty in finding and securing compliant expert witnesses. Although there are organizations devoted entirely to referring competent expert witnesses to attorneys, there is a stigma within the medical profession with regards to testifying for the prosecution in a medical malpractice case. At least one medical journal article, in examining said stigma, likened it to sleeping with the enemy. The same article championed the notion that medical professionals cannot give undue bias to plaintiff attorneys simply because they litigate malpractice claims. Medical professionals who may be solicited to review a case or give testimony should be equally willing to render services to both plaintiff and defense counsels.
However, as most medical professionals are well-aware of the threat of being sued for malpractice, they are not keen to provide services to plaintiff attorneys. This creates an obstacle for the injured patient before they can even give a voice to their claim.The wave of tort reform in the last century effectively changed the disposition with which plaintiff claims are viewed, with the word frivolous being thrown around with a frequency that suggests frivolous suits are far more prevalent than they actually. Faced with this stigma that their claim may be baseless, an injured patient now may also struggle to find a plaintiff attorney to represent their case - because the plaintiff attorney may struggle to find an expert to review and corroborate. Naturally, doctors do not want to be sued, nor do they want to be a cog in the machinations of the medical malpractice litigation machine - which is how some may view being an expert witness. However, this is a misconception.
When a patient is injured as a result of medical error, the third-leading cause of death in America, the plaintiff attorney is the liaison between that patient and justice in a court of law. Resistance from the medical community to participate as witnesses in malpractice prosecutions stunts the efforts of well-meaning plaintiff attorneys who seek rightful compensation for their clients, who have already suffered at the hands of a negligent professional.
Plaintiff Experts & The Standard of Care
Plaintiff experts have a unique relationship with the standard of care. Their task is to present their clear, convincing professional opinion that malpractice took place and that the defendant physician deviated from the standard of care. To do this, the plaintiff expert must explain the ‘standard of care' of their profession to the jury, in clear layman's terms. The standard of care is the level of care any other competent, skilled professional would render to the patient under the same circumstances. If the prosecution can prove that the defendant physician's behavior deviated from the standard owed to the patient, they may prevail in the malpractice claim. Despite working in the same field as the defense expert, the two experts will arrive at opposite conclusions - with one asserting a deviation, and the other asserting that no deviation took place at all.
Hiring Plaintiff Experts
Plaintiff experts may be a physician independently solicited by a plaintiff attorney who has never given medical testimony before; they may be a career expert witness who regularly provides testimony in cases; they may be contracted with an expert organization or institute whose sole function is to provide attorneys with databases of relevant experts. In the case of the latter, the fee charged would go in part to the expert and in part to the company which referred them to the attorney.