Expert witnesses & your medical malpractice case

When patients are dissatisfied with their doctors or healthcare providers, they may feel justified in filing a medical malpractice claim. However, medical malpractice lawsuits can be complex, and a valid claim requires that a doctor or healthcare provider was negligent when providing care to the patient. Virginia law also has other requirements that must be met, such as certification by an expert witness and filing your claim within the statute of limitations.[1] An experienced attorney can help you determine the validity of your claim and help make sure these legal requirements are satisfied.

In medical malpractice cases, the issues can be extremely complicated.  Since a jury must determine whether your doctor was negligent, that jury must be made to understand the medicine. In cases involving complex procedures and surgeries, it is easy to see how a jury may have difficulty. For this reason, plaintiffs are required to have an expert review the medical records in their case.[2] The only time a plaintiff is not required to obtain expert certification is when the issue of negligence is simple enough for a jury to understand without clarification or explanation by an expert.[3] Given the complexities of malpractice cases, expert certification is almost always necessary.

The expert that is retained to review medical records in your case must meet the following requirements.

  • Same or related area of practice. The reviewing expert must demonstrate expert knowledge to the standards of the defendant’s specialty or area of practice.[4] In other words, the expert must be experienced and qualified in the same medical specialty or be proficient in the relevant practice or procedures in the case.
  • Review medical records.The expert must review the medical records, including hospital chart notes, appointment records, and care plans.
  • Establish negligence. The expert must then determine whether your doctor or medical care provider breached the standard of care. If so, then your medical care provider was “negligent.”
  • Establish the cause of plaintiff’s harm. If your medical care provider was negligent, the expert then must conclude that this negligence caused harm to you, and gave rise to your claim.[5] In addition, the expert must hold his or her opinions to a reasonable degree of medical probability.
  • File a Certificate of Merit. Once your attorney has obtained an expert opinion supporting the claim, your attorney must obtain a statement from the expert certifying that, in the expert’s opinion, the doctor in question was negligent and that the negligence caused the injuries complained of.[6] This “certificate of merit” must be kept privileged absent order from a court for good cause, but is intended to ensure that the claim is brought in good faith.  While the statement is not required before the lawsuit is filed, it is required before the patient’s lawyer requests the court to serve the doctor with the suit. If this requirement is not met, the suit may be dismissed with prejudice, which prevents the claim from being brought a second time.[7]

Once these requirements have been met, you will have a prima facie claim before the court. If your case goes to trial, expert witnesses may also testify to support your claim of negligence. An experienced attorney can help you with these complicated legal requirements involving expert witnesses, and can help you recover full and fair compensation. For a free consultation, call the attorneys of Allen & Allen at 1-866-388-1307.

About The Author: Malcolm “Mic” McConnell is the lead Medical Malpractice attorney at the Allen Law Firm and has nearly 30 years of experience handling cases in a variety of medical specialties. Mic was named the Best Lawyers’ Medical Malpractice Law – Plantiffs “Lawyer of the Year” in 2013 and 2016.

[1] See, e.g., Va. Code Ann. §§ 8.01-20.1; 8.01-243 (discussing the requirements for expert witnesses and the applicable statute of limitations, respectively). .

[2] Va. Code Ann. § 8.01-20.1.

[3] See id.

[4] See Va. Code Ann. §§ 8.01-20.1; 8.01-581.20.

[5] See id

[6] See supra note 2.

[7] See id.