Nearly all medical malpractice cases require medical expert testimony. It’s because the technical information the jury must consider in such cases is often too complicated to sort through without the help of a medical professional. The service most physicians who offer expert testimony in medical litigation provide is to inform the legal profession about the correct standard of care governing the medical care in question. The judicial system relies on experts from both sides to inform the jury so that justice can be rendered efficiently and fairly. The jury isn’t required to accept any expert’s opinion but must consider it when analyzing and evaluating the facts.
A written opinion from a qualified medical expert is required by Florida law in order to initiate a medical malpractice suit. Florida Statute 766.202(6) states:
- Corroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert as defined in §766.202(6), at the time the notice of intent to initiate litigation is mailed, which statement shall corroborate reasonable grounds to support the claim of medical negligence.
Generally, a plaintiff hires a medical expert to show both a breach of the standard of care and cause of the specific injury, debilitating condition, or bad result, and a defendant hires an opposing expert to show the physician’s conduct met the standard of care and/or the breach of that standard did not directly or proximately cause injury to the plaintiff. Where negligence is obvious and within the common knowledge of a juror, such as operating on the wrong limb or leaving surgical instruments or sponges inside the body, expert testimony may not be needed outside of the initial requirement that a written expert opinion accompany the allegations of medical negligence.
The Standard of Care Question
Finding an expert to testify on your behalf is therefore an essential early step in medical malpractice cases. A medical expert will address the two questions central to any medical malpractice case:
- Did the doctor follow the standard of care for doctors in the same position?
- Did the doctor’s failure to follow the standard of care cause harm to the patient?
The medical expert will testify about what a reasonable doctor would have done in the situation at issue in the case. The expert will then give an opinion as to whether the doctor involved adhered to that standard of care. Florida Statute §766.102 defines the standard of care as:
- The prevailing professional standard of care for a given health care provider shall be 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.
Since this definition is very broad, the expert uses evidence such as medical publications or medical board guidelines to bolster his or her testimony.
Did Injury Result from Negligence in the Standard of Care?
An expert must also testify about whether the doctor's failure to live up to the standard of care injured the patient. A variety of factors in any given medical situation and the doctor’s incompetence may not have directly caused the negative outcome. An example of this is when a negative outcome, such as cancer, could not have been prevented even if the doctor had acted pursuant to the standard of care. Therefore the expert must explain to the jury how likely it was that the doctor’s negligence and/or incompetence was actually the cause of the injury.
Who Is Qualified to Be a Medical Expert?
If the case involves malpractice within a specialized medical field, you will need to obtain an expert within the same specialty as the doctor against whom they are testifying. In addition, the testifying expert must also have devoted professional time during the three years immediately preceding the date of the alleged negligence in some role related to the field. This can be clinical practice, consulting, education, or clinical research. These rules are codified in Florida law, and a qualified medical malpractice attorney will help you find an expert qualified to testify on your behalf. Additional qualifications are not necessary but may include a combination of academic and practical experience or board certification. If the case involves general medicine, a wider range of doctors with the experience and training necessary may qualify as expert witnesses.
More specifically, Florida Statute 766.102 states:
- A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria.
In the case of a specialist: The expert must specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered and have devoted professional time during the three 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 b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or c. A clinical research program that is affiliated with an accredited health professional school or accredited residency or clinical research program in the same specialty.
In the case of a general practitioner: The expert witness must have devoted professional time during the five years immediately preceding the date of the occurrence that is the basis for the action to:
- The active clinical practice or consultation as a general practitioner;
- The instruction of students in an accredited health professional school or accredited residency program in the general practice of medicine; or
- A clinical research program that is affiliated with an accredited medical school or teaching hospital and that is in the general practice of medicine.
A number of other statutes apply to medical specialists such as physicians’ assistants, registered nurse midwives, nurse practitioners, other medical support staff, hospitals, and other health care and medical facilities.
Where to Find a Medical Negligence Expert
An effective expert witness is not only an outstanding example in their field but also an expert communicator. He or she will clarify the issues at stake in a way the court and jury will understand and connect the relevant facts into a narrative that supports the point of view they are advocating for. A number of consulting and referral businesses offer the service of finding relevant and reliable experts for medical malpractice cases. An experienced medical malpractice attorney will have access to and relationships with such firms. He or she also will have developed over time a list of medical experts in a variety of fields and locations who have stellar reputations, the right credentials, excellent review skills, and clear interpretive abilities that will be effective in communicating with juries.
How Soon Do You Need a Medical Expert?
The plaintiff and defendants must have experts, and disclose the substance of their testimony to the court, before trial starts. If either side fails to do so before the court's deadline, the court may even decide the case in the other party's favor before the trial begins. The exception is if the case falls into a category that does not require an expert opinion.