Expert Witnesses and Medical Negligence Cases- Part 5

Expert Witnesses and Medical Negligence Cases- Part 5

In my prior posts, I argued that in medical negligence cases, the jury only gets to hear facts that have been pre-filtered by medical experts.  In this post, I’ll explain the mechanics of how that happens.  In a civil case, the plaintiff bears the burden of proof.  In a civil case, as opposed to a criminal case, the burden of proof is what’s known as the “preponderance of the evidence.”  It just means more likely true than not.  51% certain.  Another way to say that is “probably.”  In a civil case, the plaintiff wins if she can prove what probably happened.  In the same was medical malpractice law translates “carelessness” into “deviation from the standard of care,” the same law translates “probably” into a magic-sounding phrase known as a “reasonable degree of medical probability,” which supposedly means the same thing.  The complexities are now piling up on one another.  Properly understood, the jury should decide whether a doctor was probably careless.  Now, however, the jury is tasked with deciding “whether, to a reasonably degree of medical probability, the defendant physician deviated from the accepted standard of care.”  Those things are supposed to mean the same thing, but we can see how the phrasing makes things seem more complicated and, thus, harder to prove.  What’s worse, the law says that only an expert gets to decide things like “reasonable degree of medical probability” and “deviation” and “standard of care.”  The case will never even get to a jury unless the plaintiff’s expert speaks these magic words.

That brings us to the deposition of the plaintiff’s expert witness.  As part of all medical negligence cases, the plaintiff has to disclose experts that will testify on his behalf.  The defense attorneys get to put that expert under oath and ask her detailed and, in many instances, confrontational questions about her opinions.  This expert is, in almost every case, an extraordinarily busy medical professional focused on her own patients.  What’s worse, she doesn’t speak the language required by the law.  Doctors do not walk around the halls of the hospital talking to each other about “reasonable degree of medical probability” and “deviation from the standard of care.”  However, they must now use that language in the deposition, at the risk of costing the plaintiff his entire case. 

Seasoned defense attorneys know this drill well:  The plaintiff’s attorney must be able to state, to a reasonable degree of medical probability, how the defendant deviated from the standard of care with absolute precision.   What exact test should have been ordered?  What precise lab value should have been recognized?  What exact medication, timing and dose, should have been administered?  But even that’s not enough.  Not only must the plaintiff’s expert be able to say exactly what the defendant did wrong, using all the magic language, the expert must be able to testify, again with the magic language, that these deviations caused the harm. 

If the defense attorney is lucky, the plaintiff’s expert will slip up.  She might use the dreaded word “maybe” or “possibly.”  One utterance of these words in any context could spell the end of the case.  Even if the defense attorney is unlucky, he should at least leave the deposition with the plaintiff’s expert committed to an exact narrative timeline where each step is contingent on the many steps before.  That is, the plaintiff’s expert will have been forced to comb through the chart identifying every single “deviation from the standard of care” and the exact facts that support that deviation.  She will have also been compelled to say exactly how, when, and why some different course of action would have led to a better outcome, to a reasonable degree of medical probability.  At the end of the deposition, there will be two kinds of facts: (1) Those that are absolutely central to the opinion of the plaintiff’s expert, assuming all the magic language was used and (2) Facts that are not absolutely central to the opinion of the plaintiff’s expert.  These facts in category 2 may be very important.  They may provide a great deal of context to what happened.  They may be just the kind of facts that the jury would want to know and that, in other cases, we would trust them with.  In my next post, I’ll talk about the next steps.


Previously, Geoff Brown argued that in medical negligence cases, the jury only gets to hear facts that have been pre-filtered by medical experts. In this post, he explain the mechanics of how that happens.