June 24th, 2019
Expert Witnesses and Medical Negligence Cases- Part 4
In my prior posts, I discussed the proper use of expert witnesses in civil cases. Experts are meant to be used only to help the jury understand complex issues. They were never meant to be used as a substitute for the collective wisdom of the citizens who sit on our juries. Do experts still play that helper role in medical negligence cases?
Again, because the law is similar in most states, I will use West Virginia as an example. According to West Virginia law, a doctor is responsible for any injuries caused by his or her negligence. The negligence standard is the same one we use to determine most civil cases involving an injury. It simply means a lack of due care. Negligent drivers can be held responsible for the injuries they cause and the same should be true of physicians. However, things quickly get more complicated. In a medical negligence case, it’s not enough to simply say “carelessness,” which is a word that everybody understands and can use. We all know what it means to be careful and we all know what it means to be careless. We could trust a jury made up of people from all walks of life with that decision. However, in medical negligence cases, “carelessness” gets translated and defined to mean a “deviation from the standard of care,” which is technical jargon supposed to mean the same thing. As the law attempts to explain to us, juries that ordinarily and effectively make determinations about “carelessness” simply cannot be trusted to determine what the “standard of care” means. So the law vests that determination exclusively to expert witnesses. That is, the case can only proceed if an expert says what the standard of care is and describes exactly how the defendant deviated from that standard. I have no problem accepting the obvious fact that in many scenarios, ordinary citizens would have difficulty understanding what is supposed to happen in a complex surgical procedure, just as those same jurors might have a hard time understanding complex mechanical engineering issues or the types of fire science issues that come up in explosion cases. For that reason, I have no problem if experts come in to help the jury understand those issues, as the rules are designed. In malpractice cases, however, the law requires experts to do far more than simply help. The medical expert can’t simply help. He or she must establish with an exactitude that is often very challenging exactly what was supposed to happen and why it didn’t. This is no longer just help. It’s the replacement of the jury with experts. To be sure, the jury still exists, but it no longer filters through the facts itself with the possible assistance of experts. Instead, one expert tells the jury her version of pre-filtered facts and another expert tells the jury his version of pre-filtered facts. The jury is left to determine which version of pre-filtered facts seems more correct, but the filtering has already been done.