Expert Witnesses in Medical Malpractice Cases:
What You Need To Know
An Affidavit of Merit signed by an expert witness must be filed with the Complaint. That means that your attorney will start looking for expert support very quickly after your case comes in the door. As tedious and expensive as this process may be, it ensures that by the time your case reaches the courthouse steps, it will have been thoroughly reviewed, and supported, by an expert witness.
To support a medical malpractice claim, your expert witness must meet specific requirements, including be a licensed health professional, and:
Practice in the same specialty as the defendant, if the defendant is a specialist. If the defendant is a specialist and is board certified in that specialty, your expert must match both of those criteria. For example, if the negligent physician is a board-certified urologist, your expert must also be a board-certified urologist.
Further, your board-certified urology expert must devote a majority of his or her professional time to the active clinical practice (or teaching) of “the specialty”. (So, in our example, the board-certified urologist would need to spend over half of his professional time either practicing or teaching urology.) See MCL 600.2169.
Similar rules apply if the healthcare provider is not a specialist, or board-certified. For example, a registered nurse is considered a general practitioner. He or she earned a degree in nursing, but has no specialty. The expert who testifies against the nurse must also have earned a degree in nursing, and devote a majority of his or her time to the active clinical practice (or teaching) of nursing.
Once the expert reviews your medical records, and agrees that the healthcare provider committed negligence, he or she will sign an Affidavit of Merit. The Affidavit must set forth 1) the applicable standard of care, 2) how the standard of care was breached, 3) the actions that should have been taken (or omitted) to comply with the standard of care, and 4) the manner in which the breach of the standard of care was the proximate cause of the injury. See MCL 600.2912d.
In addition to “standard of care experts,” as described above, most medical malpractice cases will be supported by other kinds of experts, including causation and damages. For example, if a registered nurse misread a physician order and administered an incorrect dosage of medication, a pharmacologist would likely be retained by your attorney to explain to a jury how the nurse’s negligence caused your injury. If your injury is severe enough that you can no longer work, or will require in-home nursing care for the remainder of your life, damages experts in the fields of economics and life-care planning may be hired to help the jury understand the loss of earnings over your working lifetime as well as the cost of your medical care into the future.
Many medical malpractice cases can turn into a “battle of the experts.” Just as plaintiffs are required to find expert support for their claims, so too are defendants to defend their care and treatment. Sometimes the plaintiff, or defendant, will challenge the qualifications of each other’s experts before trial. Because of this, it is very important for your attorney, at the outset of your case, to carefully choose an expert to support your claim. The following criteria should be considered by your attorney, and will certainly be considered by the Court when an expert’s qualifications have been challenged:
The expert’s educational and professional training
The expert’s area of specialization
The length of time the expert has been engaged in the active clinical practice (or instruction) of the health profession or specialty, and
The relevancy of the expert witness’s testimony. See MCL 600.2169.
Finding and selecting the right experts is an important piece of a medical malpractice claim, one that should be considered long before your case is filed. To learn more about how our medical malpractice attorneys choose the right expert witness, contact Hoffer & Sheremet at 616.278.0888, email us, or fill out our Free Consultation Form.