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Can a medical expert testify if his opinions are unpopular or not in accord with the medical community?


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10/3/2014
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Did you know that in New York, in a medical malpractice trial, a medical expert is permitted to testify even if his views are neither popular nor in accord with the medical community?

It's true.

When we put a medical expert on the witness stand to testify in support of our claim of medical carelessness and medical malpractice, it is critical that our expert be qualified. That often means that he will have gone through four years of medical school, done an approved residency training, maybe even did an additional year or two of specialized fellowship and then went into private practice.

It is often critical that our expert is board-certified in the field of medicine that the doctor we have sued is a specialist in. If you have sued a surgeon, it's often necessary to bring in a board certified surgeon to testify.

The law in New York does not require that we bring in an expert of the same exact specialty, but often it is helpful to do so.

Simply because a physician holds a minority opinion about specific treatment does not prohibit him from testifying.

For example, if you go to five different doctors for an opinion and four of them tell you you have a specific problem and then give you recommendations about how to treat that problem and then you go to a fifth doctor who tells you “No, you don't have that problem...you have a totally different problem and should be treated this way.”

Even though the last doctor that you saw did not agree with the other four doctors and how they would treat you, does not necessarily mean that the fifth doctor is wrong. Especially if he is still within the standard of care.

That is why a medical expert who testifies about the standard of care that is different than all the other experts, is still permitted to testify even though he may not be in the majority of physicians who believe that.

The rationale is that the standard in the community may actually be wrong.

Just because those four other doctors would have diagnosed you with a particular problem and treated you for that problem does not necessarily mean that they are 100% correct.

It is actually up to the jury to determine whether the injured victim has shown that they are more likely right than wrong that what they are claiming is true.

Keep in mind, I am not saying that is acceptable to bring in a doctor who's talking about alternative medicine and wacky, off-the-wall types of treatments.

Instead, I am talking about having a well-qualified expert be able to support their conclusions based upon known scientific studies and data.

In every medical malpractice trial in New York, you always have opposing medical experts. Always.

The jury must then determine which medical experts they believe.

The number of experts that are brought in by either side is not the determining factor about whether they should be believed. Instead, it is the substance of what they are talking about that is critical. The jury is the only one to make that determination.

Let's say we bring in an expert general surgeon to testify in a case involving a failure to diagnose a perforated colon. He may testify that a perforated colon during this type of abdominal surgery is a known and recognized risk of the procedure. However, it is the failure to recognize that perforation postoperatively, based upon the patient's complaints, that rises to the level of violations of the basic standards of medical care.

The defense experts may simply argue that a bowel perforation during abdominal surgery is a known recognized risk. They may also claim that it is not a violation from the standard of care to not recognize it in the postoperative recuperation period.

Each side will likely cite statistics and scientific papers and textbooks as well as their own clinical experience in support of their position.

A medical expert might even be ridiculed by the defense attorney during cross examination for his opinion especially if it is within the minority opinion and minority school of thought.

How can a jury reach a decision about which medical expert is right?

I have often had this philosophical discussion with people who question how can a jury who are not doctors, determine which of the experts are correct?

The jury members are not physicians and do not have medical knowledge and expertise of the various doctors who are coming in to testify. If you have diametrically opposed opinions and conclusions about the same set of facts, how then can they make an educated decision about who is right and who is wrong?

The reality is that the jury does not have to sit for weeks upon weeks to determine with 100% certainty who is right and who is wrong. Instead, they only have to determine whether the injured victim is more likely right than wrong. If they are evenly divided, then the judge will tell them they must rule in favor of the defense.

If however, the scales of justice tip ever so slightly in favor of the injured victim, let's say 50.1%, then the jury is required to give a verdict in favor of the injured victim.

I will also share with you a well kept secret...

Of those lawsuits that are brought by injured victims in New York, the majority of those are settled prior to trial. Of those cases that are not settled and go to a jury verdict during trial, the majority of those trials are won by the doctors and hospitals. That's a fact.

Go into court and observe

If you have never had an opportunity to sit in and observe a real trial, I highly encourage you to do so.

It's free. It's open to the public. You can go any day of the week. Simply walk into the courthouse and ask the court officer if there any active trials going on. If there are, walk into a courtroom sit down and take it all in. The most exciting part of observing a medical malpractice trial is usually cross examination of a medical expert. You can feel the tension. It is a remarkable process.

Go into the Bronx County courthouse on Grand Concourse Ave. Go into the NY County Courthouse at 60 Centre Street in Manhattan. Visit the Queens County courthouse at 88-11 Sutphin Blvd. in Jamaica, Queens. Go into the Kings County courthouse at 360 Adams Street in Brooklyn. If you live on Long Island, go to Mineola and visit the Nassau County courthouse. There's one in every county.

Having a qualified medical expert to testify in support of your case is not only critical but absolutely required to show to the court and to the jury that you have a valid basis for a case. Unlike other types of accident cases and car accident matters, medical malpractice cases are required to have medical experts confirm that we have a valid case. Then, at trial, those medical experts are required to testify in our behalf.

To learn more about a sneaky trial strategy involving medical experts and their qualifications, I invite you to watch the video below...



Category: General


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