Archive for February, 2012
Do you always need a medical expert witness or a dental expert witness to explain a doctor’s malpractice to the jury? You do, but there is an exception. The function of a medical expert witness or
a dental expert witness is to explain technical arguments in simple terms the jury can understand. In medical malpractice and dental malpractice cases, each side hires doctors as expert witnesses, to explain its version of what happened to the jurors.
What if you cannot find a doctor, who is willing to be your expert witness and testify on your behalf? If you do not have an expert witness, the judge will probably rule that you have failed to make a Prima Facie Case, which means you have failed to show you have a valid complaint, and the judge will dismiss your case before the jury even hears your arguments.
Can you get around that obstacle, or do you just let your case go? Theoretically, if you know a lot about medicine, you could take the witness stand and explain your side of the argument, but you would have very little chance of winning. Your expertise would be
no match for the specialists testifying against you, and you would be an easy mark for a skilled, defense lawyer.
Winning a medical malpractice or dental malpractice lawsuit is like winning a boxing championship – you actually have to beat the champ. A tie will not do. In a medical malpractice or dental malpractice lawsuit, the doctor you are suing can act as his own expert, because he is an expert – and win.
There is another way you can go. If the malpractice is so obvious that the average juror can understand it without an explanation, there is a legal theory called Res Ipsa Loquitur, which means “the thing speaks for itself”, and in most states, you do not need an expert witness. In an Illinois case, a patient had a myelogram (injection of dye into the spinal canal) to diagnose the cause of back pain. During the injection, he felt a severe pain in his leg and afterward found that his leg was permanently paralyzed. Since he was not lame when he walked into the hospital, and paralysis is not a normal and usual complication of a myelogram, the court held that the average juror could understand there was malpractice, and he did not need a medical expert witness to explain what happened. In a Kansas case, a surgeon left a gauze sponge in a woman’s abdomen. The court ruled it was common knowledge that leaving a sponge in a patient was malpractice, and the woman did not need a medical expert witness.