In a medical malpractice suit, few things play a more a critical role than the expert witness. For both prosecution and defense, the expert witness is perhaps the foremost means of establishing medical authority and a sense of factual certitude before the jury. As the intricacies of medicine evade most of us, including legal professionals, the medical experts in a case are responsible for demystifying their field to both lawyer and juror, untangling the nuances of medical error that are at the heart of the negligence suit.
Expert Witnesses: An Overview
A savvy lawyer will choose a likable expert witness who may appeal to a jury, ideally with a formidable reputation to punctuate the gravitas of his or her medical opinion in the case. Because the assertions of each side (the prosecution and defense) hinge, in part, on the quality of their corroborating expert witness, the integrity of their entire case could be in jeopardy if the expert is not likable or of dubious credibility. This may allow the opposing side to pokes holes in their testimony, credibility or the evidence an expert medical witness presents.
Hiring Expert Witnesses
Expert witnesses may be medical professionals independently sought by the defense or plaintiff attorney to review their client's case, or they may be contracted with an expert witness group, in which case they are indexed in a database of experts available to lawyers when necessary. Career experts are typically contracted with such companies, while independently sought experts may work exclusively in their medical field, giving expert testimony in cases when invited but with no consistency.
The expert witness fee(s) can account for a substantial portion of case expenses, for both prosecution and defense attorneys. This fee can be especially imposing to the plaintiff attorney, who must front all the costs of litigation themselves and will not recover them unless they should win the case. Hiring multiple expert witnesses can serve to underline the points made by one witness, but for the plaintiff attorney, this can prove to be a risky move. Multiple high priced expert witnesses may be hired to no avail (and great financial loss) if the case is lost. But winning the case could similarly hinge on hiring them. It is, at best, a calculated gamble backed by the prowess of the attorney.
The Role of Defense Experts in Maryland Medical Malpractice Cases
The defense expert has a multifaceted role within the case. Upon their agreement to take the case, after an initial discussion, the defense expert will conduct a case review. For the defense, this comes after the claim has already been accepted and filed by a plaintiff attorney. In order to be accepted by any plaintiff attorney, the malpractice claim will have to undergo considerable scrutiny and fact-checking, requiring the evaluation and affirmation of a plaintiff-hired expert witness. For the purposes of the defense, this means the claim they have been served with has already been "pre-screened" if you will, by both plaintiff attorneys and other medical experts, meaning it is likely a claim that has some potential legal merit.
With at least one expert already willing to testify that an incident of medical malpractice occurred, the defense is confronted with a meritorious claim at the outset of the case and must immediately seek out an expert with the ability to argue against or refute it. Therefore it is now the job of the defense attorney to recruit a competent, credible expert to review the case and arrive at the exact opposite conclusion of the corroborating plaintiff expert. Or, at very least, to make cogent points that could raise doubt in the minds of jurors as to the conclusions of the plaintiff's expert witness(es). Witnesses often charge separate, discrete fees depending on the task with which they have been charged, be it case reviews, depositions or testimony - the latter two of which are usually subject to an hourly fee, which can become an exorbitant cost.
Types of Defense Experts
Organizations such as Physician Medical Review and The Expert Institute "find, screen and refer medical experts who serve in medical malpractice cases.” Medical experts, in particular, earn double what experts in non-medical fields may earn for testifying or conducting case reviews. An expert may be a physician medical consultant in the employ of an organization like those mentioned above, in which case they do not take home all of what they charge. A percentage would be allotted to the organization for the services they rendered, such as referring the expert to the attorney, determining the number of experts needed, compiling medical reports, and reviewing the qualifications and weaknesses of opposing witnesses. If the physician is independent, their fees may be greater or less than those employed by an expert organization - depending on the relative worth of their testimony. If it is a one-time endeavor that would take a physician away from his or her practice, they may charge more to compensate for their lost time. If they receive steady business as an expert witness, there may be a more even-keeled fee.