Preparing the Plaintiff's Medical Expert Witness for Trial
Ordinarily, the selection of the plaintiff's expert is made well in advance of trial and they should had an opportunity to review all pertinent medical facts.10 min read
Excerpted from Medical Malpractice, Third Edition, 25
by David M. Harney
Copyright 1993, The Michie Company, 1-800-446-3410
All rights reserved. Personal use only. No distribution or republication without prior permission from the publisher.
Ordinarily, the selection of the plaintiff's expert is made well in advance of trial. Ideally, he or she has had an opportunity to review all pertinent medical facts, and has been able to discuss them at length with counsel. The witness, if he or she is not experienced at testifying, should be told to not be embarrassed about this preparation, and that if the subject of lengthy pretrial discussions with counsel is raised by the opponent during cross-examination, to not hesitate to admit to such discussions.
If a physician is testifying for us as an expert for the first time, we provide him or her with a copy of the following instructions.
THE DOCTOR AS AN EXPERT WITNESS
We hope that some of the following suggestions may be of assistance to you in testifying as an expert witness and clarify any questions you might have.
A. REQUIREMENT OF "MEDICAL PROBABILITY"
1. The law requires that a medical expert give an opinion based only upon "reasonable medical certainty" or "reasonable medical probability." It is important to note that the legal definition of these phrases is different than the medical definition.
2. In law the two phrases are identical in meaning. The legal definition of the two phrases is simply that the doctor must feel that the opinion is more likely than not accurate. For example, if the doctor is asked, based upon the reasonable medical certainty, whether the injuries were the result of the accident, the doctor need only feel that the accident was "more likely than not" the cause of the injury claimed in order to answer "yes."
3. The law makes a legal distinction between "possibility" and "probability." Opinions based upon possibility are not necessarily admissible. Therefore, if the doctor uses any of the following phrases in connection with his or her opinion, such testimony may be stricken by the judge:
(1) It "might be" true.
(2) It "is possible."
(3) It "might have" that effect.
(4) It "could have" that effect.
4. While there must be more than a bare possibility, the law does recognize that a degree of uncertainty is present in almost every medical opinion. Our court has said: "It is consistent for a doctor to admit an element of speculation and still be convinced that an accident is more likely than not the cause of the injury." Also, "circumstantial evidence" is usable.
B. TESTIMONY REGARDING HISTORY OF PATIENT
1. The law allows a doctor who sees a patient for the purpose of examining or treating the patient to tell the jury what history the patient gave and to relate any subjective complaints or findings of the patient.
C. EXPLAINING MEDICAL TERMS
1. It is important that the medical expert explain the use of medical terminology, like "loss of lordosis" or "scoliosis," as these things are foreign to the knowledge of the jury.
D. PROOF OF MEDICAL NEGLIGENCE
1. In a medical negligence case, the law requires the plaintiff to show the following things in order to recover a verdict:
(1) That there is a standard of care and skill expected of the average medical practitioner acting under the circumstances involved in the case.