Medical Malpractice

How Do I Prove Medical Malpractice?

By David Goguen, J.D., University of San Francisco School of Law
A medical malpractice lawsuit is often characterized as a "battle of the experts," as in expert witnesses. Here's why.

When a doctor or other health care professional makes a mistake that ends up causing harm to a patient, that error can (though it doesn’t always) lead to a viable medical malpractice claim. So let's assume that you’ve done a little research, you believe in your case, and so does your lawyer. Keep in mind that establishing a doctor’s liability for harm to a patient is a complex process, and you and your legal team are going to be in for a fight. So let’s look at what it takes to prove a medical malpractice case.

The "Medical Standard of Care" and "Medical Negligence"

There's more to the larger definition of medical malpractice, but in the language of the law, proving medical malpractice usually comes down to:

  • establishing the appropriate "medical standard of care," and
  • proving that the defendant doctor breached that standard of care (this breach amounts to "medical negligence")

In simpler English, that means:

  • establishing what diagnosis, course of treatment, or procedure was medically appropriate considering all the circumstances, and
  • spelling out exactly how the defendant doctor fell short of meeting that standard when treating the plaintiff.

(Learn more about the basics of medical malpractice: Do I Have a Medical Malpractice Case?)

Obviously your medical malpractice lawyer is going to be taking the lead in formulating the right strategy for your case when it comes to proving liability. (Learn more about Choosing the Right Medical Malpractice Lawyer). But in any medical malpractice case, a big part of that strategy is going to consist of picking the right expert medical witness(es) to establish the two key elements mentioned above.

For example, if the plaintiff is a 55-year-old lymphoma patient in Michigan, and the defendant is an Ann Arbor oncologist, chances are that the plaintiff’s team would retain as an expert medical witness another Michigan oncologist who has experience treating lymphoma patients.

After establishing his or her credentials and expertise, this expert would offer an opinion on the type and level of care that was required under the circumstances (the medical standard of care). In other words, what would a similarly-trained, reasonably prudent oncologist in the same medical community have done while treating this particular patient under these particular circumstances? Next, the expert would offer detailed, often complex testimony on precisely how the defendant doctor fell short of meeting the appropriate standard of care.

So, much of the injured patient’s liability argument is going to depend on the testimony of the expert medical witness(es) retained by the plaintiff’s legal team. And it’s not just the expert’s opinion that matters. Is the expert qualified to offer that opinion? Does the witness’s “expertise” come from years of hands-on medical practice in the same area of medicine, or from medical journals and academia? How well can the expert convey his or her opinion and present complicated medical evidence to the jury in an effective and easy-to-digest manner?

The “Battle of the Experts”

At this point it should come as no surprise that the defense isn’t going to just sit on its hands while the plaintiff's expert analyzes and critiques the defendant's action (or inaction) in an attempt to prove that medical malpractice occurred. Instead, the defense will offer up its own expert (or team of experts) to try to establish that the doctor’s decisions and conduct did in fact measure up with the medical standard of care, and also to dispute (and even attempt to discredit) the opinion of the plaintiff’s experts. This is why medical malpractice trials are often described as a “battle of the experts.”

Questions for Your Attorney

If you’ve got questions about the best strategy for establishing the doctor’s liability in your case (and the ins and outs of retaining and working with an expert medical witness) an experienced medical malpractice attorney will have the answers.

Here are some topics to touch on when you sit down to discuss your case:

  • How will an expert medical witness’s fees be paid? By the firm or by the client?
  • If we can’t find a local, well-qualified expert witness to testify in support of our position, will it hurt my case to have a doctor from another state testify?
  • What kind of expert witnesses wiil the doctor’s insurance company retain to try to refute our arguments for liability?
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