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How to Gather Witness Statements for a Medical Malpractice Case

In a medical malpractice case, the injury victim may not even know there was an error at the time they saw the doctor. A patient may think that the injuries they suffered are just a normal risk of medical treatment. Even after a medical malpractice lawyer reviews the patient’s case, the injury victim may still not know what evidence supports their malpractice case. 

Evidence of medical malpractice often includes the medical records themselves and statements of the doctors and medical professionals involved in patient care. However, witness statements can also support the injury victim’s case in a medical malpractice lawsuit. This provides an overview of witness statements in a medical malpractice case. 

Even if you don’t have witnesses for your medical injury, your attorney can still show evidence of medical errors with expert witness review, expert reports, and expert witness testimony. If you have questions about witness statements and evidence in a medical malpractice case, contact Gilman & Bedigian today online or by phone at 800-529-6162.  

What Is a Witness Statement?

According to the Federal Rules of Criminal Procedure, FRCP 26.2, a witness statement is defined as:

  1. A written statement that the witness makes and signs, or otherwise adopts or approves;
  2. A substantially verbatim, contemporaneously recorded recital of the witness’s oral statement that is contained in any recording or any transcription of a recording; or
  3. The witness’s statement to a grand jury, however taken or recorded, or a transcription of such a statement.

A medical malpractice case is generally a civil lawsuit and not criminal but can still involve a similar type of witness statement. A witness statement in a medical malpractice lawsuit could come from someone who witnessed the medical doctor’s actions or errors, or someone who witnessed the injury victim getting injured. For example, if a patient fell off their unsecured hospital bed, a visitor who saw the patient on the ground could offer a witness statement that the safety bar on the bed was not in position. 

The content of a witness statement may depend on the type of medical injury and the purpose of the evidence. For example, a witness statement generally has basic information about what happened, including the who, what, when, and where of what happened. It may also include information about the surroundings or environment.

Generally, a medical malpractice lawsuit involves proving 4 elements of the charge, including: 

  1. The doctor owed the patient a duty of care;
  2. The doctor breached the duty of care; 
  3. The breach caused the patient’s injury; and
  4. The patient suffered harm or damage as a result. 

Relevant evidence is evidence that has a tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence to the case. A relevant witness statement in a medical malpractice case could be a statement that is relevant to duty, breach, causation, and harm. 

The Doctor Owed the Patient a Duty of Care

If a witness statement is helpful to showing the doctor owed the patient a duty of care, it may be relevant and useful to proving your case. For example, if a doctor is claiming the patient was never under the care of the doctor, a witness who saw the doctor attending the patient could help prove this element of the medical malpractice claim. 

The Doctor Breached the Duty of Care

Showing the doctor breached the duty of care is usually a question for medical experts. A medical expert understands the duty of care, which is based on what the medical community understands as something to do or not do in a similar situation. Generally, your attorney will contact a medical expert (usually another physician in a similar practice area), to speak to the doctor’s breach of care. 

However, some non-medical witnesses may also have information that helps prove the element of breach of duty. For example, if a doctor claims they did not do something but a nurse, family member, or someone else witnessed the doctor doing what they said they did not do, this could help the jury decide whether or not to believe the doctor. 

The Doctor’s Breach Caused the Patient’s Injury

Did what the doctor did cause the patient’s injury? This is generally another part of the lawsuit that involves an expert medical witness. Another doctor can help the jury decide if the doctor’s actions caused the patient’s injury. However, a non-doctor could also provide a witness statement that helps inform the jury. 

For example, if a doctor claims that the patient suffered a broken leg after they were released from the hospital but someone else saw the patient fall from their hospital bed, suffering an injury to their leg, this witness could provide this information to the jury to help them determine whether the injury was caused by medical malpractice. 

The Patient Suffered Harm as a Result

Suffering harm means showing the patient suffered an injury that causes loss. Harm could include physical harm, like scarring, chronic pain, or loss of physical function. Harm could also be financial and include medical bills, loss of income from not being able to work, and loss of future income. A witness could help prove harm by providing evidence the injury victim cannot work, continues to complain of pain, or the injury victim now walks with a limp.

Expert witnesses can also provide helpful opinions about the costs of an injury. For example, certain types of experts can provide information about the likely future costs of a medical injury, including providing a high estimate, low estimate, and midrange estimate. This helps people understand how much to award in damages for someone injured in a medical malpractice accident.

Get Witness Statements As Soon As Possible

People’s memories fade over time. Even for people with a good memory, they may remember more about what happened minutes or hours after it happened. A few months later, their memory may not be as reliable. If possible, try to get a witness statement as soon as you can after suffering a malpractice injury. 

Do I Need to Talk to Witnesses About My Case?

In most medical malpractice cases, it is your medical malpractice attorney who deals with gathering evidence. Your attorney is very familiar with the types of information that are important in a medical malpractice case and how to gather the evidence. 

Witness Statements and Depositions

Other important evidence in a medical malpractice case does come from witnesses but it is not for witness statements that you should gather. A deposition is a sworn testimony of a party to the lawsuit or a witness. The depositions are conducted by the attorneys in the case. 

For example, a deposition of the doctor will usually be scheduled by the lawyer representing the doctor. Your lawyer will be able to ask the doctor questions about what happened in your treatment and ask follow-up questions to get all the necessary and available information from the doctor. 

The deposition of the injury victim will be held by your lawyer but the defense attorneys (the lawyers working for the doctors, hospitals, and insurance companies) will ask you questions. Depositions can be stressful for the patient but your lawyer will be able to help you prepare by understanding what will happen and the types of questions they will likely ask. Your attorney will also be there to step in if the other lawyers do anything inappropriate or try to trick you or confuse you. 

Medical Record Evidence

In general, the most important evidence in a malpractice case is often the medical records. Medical records provide a lot of insight into what happened in your case, including: 

  • Diagnostic tests
  • Medical reports
  • Imaging studies
  • Hospital records
  • Lab test results

As part of the “discovery” phase of the lawsuit, all the relevant information will need to be shared between the parties. This means the hospital will generally have to turn over all their medical records and other information relevant to the case. If the hospital or doctor doesn’t turn everything over, your lawyer can file a motion to compel discovery with the judge. If the judge agrees with the motion, then the hospital will be forced to give you the information you need or they can be punished by the court. 

What Is an Expert Witness in a Malpractice Case?

Almost all medical malpractice cases require at least one or more expert witnesses. This is different from other types of personal injury cases. An expert witness is generally required because someone needs to have a medical background to be able to testify about whether a doctor failed to provide the standard of care required. 

Chicago Medical Malpractice Expert Example

Every state has its own requirements for qualifying an expert witness but most states base their rules on the Federal Rules of Civil Procedures. For example, for a Chicago medical malpractice case, an expert is qualified under the Illinois Rules of Evidence 702:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. 

Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.”

Even if the jury happens to have a doctor or a nurse as a juror, the rest of the jury still needs to hear an expert testify about whether the doctor did or did not breach their duty of care. 

Affidavit of Merit to File a Malpractice Lawsuit

An expert witness is necessary even at the beginning of the lawsuit. Most states require a certification or affidavit of merit that there is a legitimate basis for the malpractice claim. This is supposed to reduce frivolous lawsuits but it puts an additional burden on the injury victim. Your attorney will generally handle finding a qualified medical expert to provide an affidavit of merit for filing the lawsuit. 

Expert Witness Report

After all of the discovery has been exchanged, including gathering documents, depositions, and other relevant evidence, the expert witness will review the records and provide an expert report. The report will establish their qualifications and experience, with a CV or resume, educational background, certifications, and history of their publications, research, and presentations. Then the report will indicate where the expert finds the doctor breached their duty of care to the patient, which caused the injury and damage. 

At a certain point before the case goes to trial, the parties will exchange their expert witness reports. If your attorney plans to use an expert witness at trial, they must disclose the identity of the witness and the witness report. The expert witness laws may be a little different in every state but are often based on the Federal Rules of Civil Procedure (FRCP). 

Under FRCP Rule 26, “Unless otherwise stipulated or ordered by the court, this disclosure must be accompanied by a written report—prepared and signed by the witness—if the witness is one retained or specially employed to provide expert testimony in the case or one whose duties as the party’s employee regularly involve giving expert testimony. The report must contain:

  1. a complete statement of all opinions the witness will express and the basis and reasons for them;
  2. the facts or data considered by the witness in forming them;
  3. any exhibits that will be used to summarize or support them;
  4. the witness’s qualifications, including a list of all publications authored in the previous 10 years;
  5. a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and
  6. a statement of the compensation to be paid for the study and testimony in the case.

In general, each side will have at least one expert witness. For example, your expert may say why the doctor deviated from the standard of care, causing the injury. The insurance company’s expert will provide a report that indicates the doctor did not deviate from the standard of care. The experts can then provide an additional response to the other expert’s report. 

What Steps Do I Have to Take for a Medical Malpractice Case?

Medical malpractice cases can be very complex and they should be handled by a professional who understands how much work is involved. The good news is that once you find your medical malpractice attorney, they will do most of the work for you. Your lawyer will gather witness information and medical records, and find experts to provide a witness statement and report for your case. 

If you have questions about your case or what you need to provide, ask your attorney for help. Contact experienced medical malpractice trial attorneys Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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