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What Happens if Your Expert Witness Says You Don't Have a Medical Malpractice Claim

Guy DiMartino March 18, 2021

If your expert witness says you don't have a medical malpractice case, can you still go forward with your medical malpractice case? The answer to the question simply is no. You may be asking - why Guy? Well, I'm glad you asked, let me explain why medical malpractice is different than some other types of injury cases.

Medical malpractice cases require specialized testimony unless the injury or the malpractice is so common that anyone would know that malpractice happened. For instance, if I go in for surgery on my right shoulder, and the doctor does surgery on the left shoulder, obviously everyone would consider doing surgery on the wrong side of body is malpractice. In this type of case expert testimony is not required. On the other hand, for most medical malpractice cases, you need expert testimony in two areas.

The first area is standard of care. Regarding standard of care, the expert has to provide an opinion that the healthcare provider deviated from the applicable standard of care, in regular language, that the healthcare provider committed malpractice. The jury instruction says something like this: a deviation from the applicable care happens when a doctor did something or didn't do something that a reasonable prudent physician would have done under or would not done under the same or similar circumstances. This is the first inquiry that an expert witness has to support. If you're claiming that you were injured for a medical malpractice.

The second inquiry that requires expert witness testimony has to do with legal causation. The expert has to provide an opinion that the alleged malpractice caused the injury or the malpractice was the legal cause of the damages case.

Causation can be difficult to provide in a number of cases. For instance, in orthopedic surgery cases the issue becomes whether the underlying injury or the surgery caused the continued problems. Going back to my right shoulder injury, if the doctor does surgery on my right shoulder, and the shoulder gets worse after surgery. The issue becomes was that just because I had a bad shoulder. Sometimes surgeries just don't help or was it because the doctor did something wrong, cut the tendon the wrong way, allowed an infection to develop, or misidentified a structure in the shoulder.

In sum, if you do not have an expert witness to provide standard of care and legal causation, you do not have a claim.