Using an Expert to Establish a Prima Facie Case in Medical Malpractice
In order to establish a prima facie case in a medical malpractice lawsuit, a plaintiff must obtain testimony from a qualified expert that establishes two things:
(1) that the defendant departed from an acceptable standard of care; and
(2) the departure was a proximate cause of the plaintiff’s claimed injury.
Failure to provide expert testimony in a medical malpractice action is fatal. A witnesses’ qualifications, and the scope of an expert’s testimony on direct and cross-examination, are matters resting in the discretion of the trial court, whose determination, absent a clear abuse of discretion or mistake of law, will not normally be disturbed on appeal. Failure to challenge the sufficiency of the expert’s qualifications at trial will result in a waiver of issue on appeal.
People are sometimes surprised to learn that expert witnesses in medical malpractice cases are not required to be specialists in the area of the proposed testimony. For example, a surgeon may be permitted to testify against an internal physician (just to use an example). Nor does an expert need to have even been licensed at the time of the accident. All that must be shown is that the expert has sufficient knowledge of the subject at issue to enable him to testify. A witness may qualify as an expert from study of the subject.
The expert’s testimony must be based on standards of the profession as it existed at the time of the malpractice, as well as the community where the alleged malpractice occurred. This expert testimony must rely on facts appearing in the record, such as court papers, deposition transcripts (also known as ‘examinations before trial’ in New York) or medical records in evidence.
One of the catchphrases seen in expert opinions is “with a reasonable degree of medical certainty.” These words are used by a doctor when seeking to demonstrate that a particular opinion is supported by medical expertise. Where so concluded, such facts sought to be established are deemed admissible by the court. Even where there may be issues as to the witness’s credibility, the Judge will leave that up to a jury to decide..