You can't hope to succeed with your medical malpractice action unless you have an expert. The issues are too complex and many states simply require them. An expert is needed to explain the applicable standard of care in a case and whether the standard was met. But what types of experts do you need and when do you need them? The answer is easy, you need an expert as soon as you know you have a medical malpractice action.
Tort reform has taken a bite out of suits against healthcare organizations and workers. Legal obstacles have made filing and maintaining a medical malpractice suit more difficult. Caps have been placed on the amount of recovery that can be obtained, punitive damages are not allowed in some places, and states have enacted laws to protect healthcare facilities and workers by mandating certain pre-suit procedures.
Below is an overview of the type of pre-suit requirements that many states have enacted that will help you determine the type of expert needed and when to retain that expert.
Using Expert Witnesses: Common Malpractice Suits
Before we get into the initial process of filing a medical malpractice suit, it's helpful to understand the types of allegations in common malpractice suits so you can see the types of experts that you may need. The most common medical malpractice suits come from:
- Wrong patient
- Wrong surgery
- Wrong body part
- Wrong blood used
- Failure to remove instruments/objects
- Missed diagnosis
- Failure to diagnose
- Wrong diagnosis
- Other care providers
Common Medical Malpractice Health Issues
- Heart disease
- Pregnancy or Birth
Using Expert Witnesses: Pre-requisites for Filing Medical Malpractice Actions
Almost all states have requirements that must be met before you can file a malpractice suit. If your state has a pre-suit requirement, then an expert will be needed at a very early stage to properly frame the medical arguments in the court filings.
Common prerequisites to filing a medical malpractice suit include:
- Notice to the healthcare provider;
- Submission to a Medical Review Panel; and
- Submission of Certificate of Merit at the time of filing or shortly thereafter.
Pre-suit Notice to Healthcare Provider
Some states, such as California, have statutes that require notice be sent to all of the prospective defendants to be included in an action (usually 60 or 90 days before the suit is filed). These notices of intent to file suit can have strict wording and time requirements, as a woman in Washington D.C. found out when the court dismissed her action for failing to provide a pre-suit notice.
Review by a Medical Panel
A few states, such as Idaho, have enacted laws that require any complaints against medical providers for wrongful death or injury to be submitted to a Medical Review Panel prior to filing suit. These panels extensively review the medial records and procedures. There are specific requirements for these panels, but typically it's the plaintiff's burden of proof to show that that there was medical malpractice. The panels often conclude in an arbitration that may be appealed. Needless to say, it's imperative for both the plaintiff and defendant to make their strongest case at these panels which requires the use of medical malpractice experts in the earliest stages.
Certificate of Merit
Whether a state has a pre-suit requirement to submit the case to a review panel or not, they most likely require a certification or affidavit from a qualified expert. Some states, like Illinois, have specific and detailed requirements for these certificates, but others simple require a certificate of merit for all licensed professionals (which would include doctors). Some states have specific statutory requirements for different types of health care workers.
While each state has its own unique requirements, generally a certificate of merit has to address the following:
- The identification of medical records reviewed;
- The applicable standard(s) of care;
- An opinion that the defendant failed to follow the applicable standard(s) of care;
- An opinion that the defendant's negligence was a cause of the plaintiff's injury; and
- The expert's reasoning.
Using Expert Witnesses: When Experts are Required by Law
Not all states require medical malpractice experts, but you would be foolish not to have them on your side to establish the elements of your claims. Some states only have minimal medical expert requirements. For instance, Iowa only requires the expert to have qualifications directly related to the medical problem or treatment at issue. However, other states like Florida have more detailed expert witness requirements, which can include the following:
- A current medical license in the state;
- Clinical experience;
- Recent medical experience in the same area of medicine as the defendant;
- Specialization or board-certification in the same area of medicine as the defendant; and
- Restrictions that the physician not simply be a full-time professional expert.
Using Expert Witnesses to Prove Elements of Medical Malpractice Claims
An expert in the specific medical injury that occurred will certainly be necessary, but an expert for each of the elements of proof may be needed as well. These elements include:
A Duty Owed by the Health Care Provider i.e. a Doctor-Patient Relationship
There is no medical malpractice unless the medical provider owes a duty to the injured party. This duty is typically established with a doctor-patient relationship. However, an expert may be needed to prove the relationship in situations where there was no face-to-face meeting with the medical provider, such as a situation involving consultation among doctors.
Negligence - Duty of Care
Negligence is accidental harm that occurs when a person fails to exercise reasonable care to prevent harm to another. This is where an expert will be required to opine on whether the standards of care were met. This expert will need to be qualified in the same area of medicine that caused the injury.
In order to establish causation, it will be necessary to have a medical expert that is board certified in the medical specialty of the doctor that caused the harm. The expert will need to establish that the harm caused would not have happened but for the negligence of the medical provider.
A key component in a medical malpractice suit is the amount of damages caused by the negligence. Experts that can speak to damage claims include:
- Medical billing experts;
- Lost employment - lost earning capacity experts;
- Vocational experts; and
- Rehabilitation experts.
Get a Jump Start on Your Medical Malpractice Cases with the Right Clients
Remember that in order to succeed with a medical malpractice suit it's important to abide by the specific state requirements for filing such an action. Failure to do so may mean that the suit is dismissed and the cause of action lost. For help in reaching potential clients with medical malpractice actions, see FindLaw's Integrated Marketing Solutions.