Expert Witnesses and Medical Negligence Cases- Part 6

Expert Witnesses and Medical Negligence Cases- Part 6

In my last posts, I talked about how the law forces a medical-malpractice plaintiff to hire an expert who must then use a series of magic words to identify the key facts supporting her opinion.  Having done so, what happens next?  In any complex case, there will be thousands and thousands of individual facts.  Hundreds of lab results.  Hours of testimony.  Dozens and dozens of pages of nurses’ notes.  All of them potentially important to the jury that will have to decide the case. 

Generally speaking, the rules of evidence allow the admissibility of any evidence that is relevant.  The rules state that “Evidence is relevant if: (a)it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”  Given that juries decide the facts of the case, this is obviously meant to be a rule for them.  Relevant to who?  Relevant to the jury, of course. 

What happens in a malpractice case, though?  The defense attorneys know that the law requires the plaintiff’s expert to say exactly what the deviations from the standard of care were and to describe exactly how those deviations from the standard of care caused harm.  In advance of trial, the defense attorneys will ordinarily file a motion to exclude any fact they don’t like if that fact was not exactly and precisely relied upon by the plaintiff’s expert.  We’ve translated the rule from “Relevant to the Jury” to “Relevant to the Experts.”  Any fact not relevant to the experts, who speak, act, and think like the doctors they are, is in danger of being shielded from the jury who might have a different notion of what’s important or relevant. 

In most other cases, we trust the jury with all the relevant evidence.  If an expert will assist the jury in explaining or understanding those facts, so be it, but the jury gets the facts and they make up their own minds about what is important and what is not.  In medical malpractice cases, however, we run a real danger of turning this entire fact-finding operation over to the experts in a way that was never intended under our system of justice. In a malpractice case against doctors other doctors try to decide what facts the jury gets to hear. That was never the intent of the rules.

We are lucky in this area to have some of the best trial judges in the country.  We are also lucky to have hard-working and fair citizens who would decide cases the right way if we let them.  When it comes to malpractice cases, though, I wonder if we have taken the trust that we’ve justifiably placed in our judges and juries and turned it over to the experts.


In his last blog post, Geoff Brown talked about how the law forces a medical-malpractice plaintiff to hire an expert who must then use a series of magic words to identify the key facts supporting his/her opinion. In the sixth and final part of his blog series, Brown explains what happens next.