Medical experts are essential to medical malpractice cases. In fact, medical malpractice cases are unique because if an expert in the field cannot be found to testify on your behalf, there is no chance of winning the case.
The medical malpractice case is a case of negligence and in a negligence case the “plaintiff,” in this instance the “patient,” must prove that the health care provider who caused the harm had a “duty” to treat the patient, that the provider violated the standard of care with regard to that duty and that because of the violation of that standard the patient was harmed.
Depending on the case, you may need more than one expert. The expert explains to the judge and the jury, in layman’s terms, what the healthcare provider did wrong and why the average competent provider would not have done it that way.
A Medical Malpractice Case Requires An Expert Opinion
In all other courtroom testimony, the witness must tell the court factual information only. Indeed, the judge specifically instructs fact witnesses not to give their opinion.
But, with medical expert witnesses, the court is specifically seeking an opinion about the standard of care. Of course, the medical expert will review the facts of the medical malpractice case, but then weave their opinion about whether the provider did the right thing with the facts.
Each Party Will Hire An Expert
Remember, the defendant provider will also have his/her own medical expert that will give his/her own opinion to the court. That opinion will likely be different than that of the provider’s medical expert. Then, the jury has to decide which expert they believe.
Can you see the importance of experts in a malpractice case? Many of the cases hinge on the competing experts’ testimonies.
Pre-Certification of Medical Malpractice Cases
Medical malpractice laws are different from state to state. In this blog, we will highlight many of the unique medical malpractice laws that we have in Virginia.
One of these laws requires a medical expert opinion even before the medical malpractice case is served. We call this process “Certification.”
In Virginia, your lawyer cannot serve a lawsuit in a medical malpractice case without having first obtained a written opinion from a medical expert. That opinion must say that the provider violated the standard of medical care and that harm resulted. Code § 8.01-20.1 of the Virginia Code spells out for the Virginia malpractice attorney exactly what must be in the written opinion of this expert.
Interestingly, this does not necessarily have to be the medical expert that will testify for the patient at trial. Also, the defendant provider does not even get to know who the medical expert writing the Certification opinion is! The purpose of this process is to prevent the filing of cases that have no merit at all.
If at least one expert in the field considers the case to have merit, then it can to move forward. This is a way of protecting medical providers from nuisance medical malpractice lawsuits. More on the qualification of experts in Virginia in a future blog!
At Osterbind Law PLLC, we find the best medical experts available and file your medical malpractice case with the expectation of a successful outcome.