Using Expert Evidence in Medical Malpractice Claims

In a recent medical malpractice case involving an allegedly-botched hernia operation, the court examined closely at the role of Expert witnesses at trial, and the nature of the evidence they are required to give when evaluating whether the performing surgeon fell below the legal standard of care.

The court’s comments are important, because they pertain to all types of medical malpractice cases where Expert evidence is tendered, whether by plaintiff or defendant.

In Bauer v. Kilmurry, the patient had suffered a stroke during the hernia operation, and she became permanently paralyzed on her left side. She sued the surgeon for significant medical malpractice damages, claiming that he fell short of the standard of care required and expected of him in the circumstances.

To conduct the necessary liability assessment, the court had to first determine the applicable standard of care in the circumstances, since in law a doctor’s negligence is established if he or she is guilty of “such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”

This involved relying on the evidence of medical Experts put forth by both sides, much of which was contradictory. The court set out the following principles that are to guide decision-making courts when evaluating this kind of evidence:

• The Expert evidence must come from doctors of the same level of expertise as the doctor being sued.
• Genuine differences of opinion are common in the medical profession (and elsewhere). A doctor is not negligent merely because his or her conclusion differs from that of other professionals.
• On the other hand, courts should be wary of accepting the evidence of a witness who is held out as an Expert, but whose opinion is not supported in the academic community in his or her field.

Next, in making that standard of care assessment the decision-making court:

• Is considered unqualified to arrive at a medical conclusion that is contrary to the unanimous medical evidence of the Experts.
• Must not take on the job of resolving scientific disputes requiring professional expertise. This is because courts and juries simply do not have the necessary knowledge to assess treatment- or diagnosis-related technical matters.
• Is not entitled to conclude that a common and accepted course of conduct, which is based on the specialized and technical expertise of professionals, is nonetheless inherently negligent.
• Should remain aware of the danger that Expert evidence can be misused and can distort the fact-finding process.

A medical malpractice claim is complex, and requires the assistance of an experienced lawyer who can marshal the needed Expert evidence. If you believe you may have a medical malpractice claim, call Van Dyke Law Office for a free consultation.