Using Expert Witnesses in Medical Malpractice Cases

March 17, 2020 | Attorney, Matthew Dolman
Using Expert Witnesses in Medical Malpractice Cases

Medical Malpractice Cases Benefit From Expert Witness Testimony

Medical malpractice cases involve technical explanations of complicated scientific concepts. They also involve speculation about what a doctor should have done, and whether another doctor would have made the same choices in similar circumstances. For these reasons, a medical malpractice case is often reduced to a “battle of the experts”, in which a jury is essentially tasked with choosing the opinion of one expert over another. This is why it is so important to have the right medical expert witnesses involved in a medical malpractice case before a lawsuit is ever filed. An experienced Clearwater medical malpractice attorney can help you find the right expert witnesses, gather the most persuasive evidence, and present the strongest possible case for medical malpractice.

What Must a Plaintiff Prove in Order to Bring a Successful Medical Malpractice Claim?

Medical malpractice is a form of legal negligence. A person is negligent if he or she fails to act as the reasonably prudent person would in similar circumstances. This is why drivers, for example, can be found negligent for unsafe driving behaviors which result in a car accident. Medical professionals are also held to this standard. If a doctor or surgeon fails to act as the reasonably prudent doctor of similar training and experience would have in a similar case, he or she can be found negligent. Section 766.102(1) of the Florida Statutes defines this as the prevailing professional standard of care for that health care provider.

The prevailing professional standard of care for a given health care provider is defined as that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. Common examples of negligent medical practice include failure to diagnose, incorrect diagnosis, improper medication or other treatments, medication errors, and other similar mistakes. Negligent medical care is also referred to as medical malpractice.

Expert Witnesses and Medical Malpractice

But how can a judge or jury determine what the “reasonably prudent doctor” would have done in the same situation? The Florida Statutes expressly state that the existence of a medical injury does not create any inference or presumption that a medical provider was negligent. The victim bears the burden of proving that the medical care he or she received did not meet the prevailing professional standard of care. In order to meet this evidentiary burden, a plaintiff must present testimony from a doctor who has been qualified as an expert witness. Section 766.102(5) of the Florida Statutes sets forth requirements a person must meet in order to testify about the prevailing standard of medical care.

The proposed expert must: (1) specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and (2) Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to the active clinical practice of, or consulting with respect to, the same specialty; or instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or a clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.

How Can a Medical Expert Witness Be Used Effectively in Order to Meet This Standard?

It is not, of course, enough to simply meet the statutory criteria to qualify as a medical expert. The expert will have to be persuasive to a judge or jury. The expert will also have to be more persuasive than the defendant's medical expert. Many medical malpractice cases eventually become a “battle of the experts”: the plaintiff's medical expert will testify that the standard of care was not met, and the defendant's expert will testify that it was. In such a situation, the outcome of the case will depend upon which expert was more persuasive to the jury. It is therefore important for plaintiffs to select a medical expert who simply qualifies as an expert under the statute, or carries sufficient academic credentials, but also comes across as both credible and likable to a jury. These subjective witness qualities are something that an experienced attorney will be able to gauge before the case is submitted to a jury.

Strong Witnesses Improve Case Value

Choosing the right expert witness can even prevent a case from having to be litigated to a judge or jury. The Florida Statutes also require that plaintiffs serve notice to all potential defendants prior to filing a lawsuit in order to give the defendants and their liability insurance carriers time to investigate the claim. This period can be used for effective settlement negotiations if the plaintiff is able to present credible evidence to support the validity of his or her claim. If notice is served with testimony from a credible expert witness, the defendants and their insurance carriers may be more likely to make a fair settlement offer. Even if the initial settlement offer is inadequate, the strength of a credible medical expert's opinion can give the defendant an incentive to fairly engage in serious settlement negotiations.

There are many reasons why it is important to have the right medical expert to testify in a medical malpractice case. The experience of a seasoned medical malpractice attorney can help victims determine whether a medical professional is qualified to testify as an expert witness, the strength of the expert's credentials, how credible he or she will appear to a jury, and the strength of the expert's overall impression while testifying. These considerations can make or break a medical malpractice case.

Experienced Personal Injury Attorneys to Aggressively Defend Your Medical Malpractice Claim

Victims of medical malpractice have legal rights under Florida law. They are legally entitled to be compensated for all losses resulting from their injuries, including long-term medical care and rehabilitation, decreased future earning potential, and all other costs which are attributable to the negligent medical diagnosis or treatment. The Dolman Law Group Accident Injury Lawyers, PA has decades of experience in protecting the rights of medical malpractice victims in and around the Clearwater area. Call (727) 451-6900 today to schedule your free consultation with an experienced, aggressive personal injury attorney.

Dolman Law Group Accident Injury Lawyers, PA 800 North Belcher Road Clearwater, FL 33765 (727) 451-6900


Matthew Dolman

Personal Injury Lawyer

This article was written and reviewed by Matthew Dolman. Matt has been a practicing civil trial, personal injury, products liability, and mass tort lawyer since 2004. He has successfully fought for more than 11,000 injured clients and acted as lead counsel in more than 1,000 lawsuits. Always on the cutting edge of personal injury law, Matt is actively engaged in complex legal matters, including Suboxone, AFFF, and Ozempic lawsuits.  Matt is a lifetime member of the Million Dollar Advocates Forum and Multi-Million Dollar Advocates Forum for resolving individual cases in excess of $1 million and $2 million, respectively. He has also been selected by his colleagues as a Florida Superlawyer and as a member of Florida’s Legal Elite on multiple occasions. Further, Matt has been quoted in the media numerous times and is a sought-after speaker on a variety of legal issues and topics.

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