Expert witnesses are necessary in virtually every medical malpractice case filed in Maryland and the District of Columbia. Knowing which types of experts to use and not to use can make or break a case. Therefore, it is important to choose a lawyer who has extensive experience choosing, retaining and using experts.
In each of our cases, we identify the type of experts we need to prove our case. Some of the experts may focus on whether the defendant did anything wrong, such as a surgical expert or internal medicine expert who can testify as to whether the defendant violated the standard of care. Other experts we use may focus on whether a defendant’s conduct caused any injury, such as a neurologist who may testify that a violation of the standard of care during surgery caused paralysis. Finally, we use damage experts, such as life care planners and economists who testify about the cost of future medical care.
After we identify the categories of experts, we frequently consult with experts in those categories we have used before in other cases, since we have experience with such persons. Sometimes, we need to find a new expert in a field, which we do by researching which experts have published medical literature in the field of medicine that relates to our case, and consulting with other attorneys who have used similar experts previously.
Once we retain experts in a case, we work with the experts to make sure that they have the information necessary to render their opinions. This may include medical records and deposition transcripts previously taken in the case.
Defendants frequently challenge the opinions of the Plaintiffs’ experts. Therefore, from time to time we have to oppose motions to strike or experts or limit their testimony. This has become more frequent in recent years. In Maryland the Maryland Rules of Civil Procedure govern the admission of expert testimony in Maryland. Rule 5-702 states that expert testimony may be admitted if the court determines that the testimony will assist the trier of fact (usually a jury, but sometimes a judge) to understand the evidence or to determine a fact in issue in the case. In making that determination, the court determine (1) whether the person is qualified as an expert by knowledge, skill, experience, training or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony.
Under this rule, it is well established that a person must only demonstrate a minimal amount of competence or expertise on the subject on which he is allegedly an expert in order to be qualified to testify as an expert witness. The critical test is ‘whether the expert’s opinion will aid the trier of fact on a particular subject or issue. Several courts have held that a witness is qualified to testify as an expert when he exhibits such a degree of knowledge as to make it appear that his opinion has some value . . . whether such knowledge has been gained from observation or experience, standard books or any other reliable sources. In addition, it’s well established that a factual basis for expert testimony may arise from a number of sources, such as facts obtained from the expert’s first-hand knowledge, facts obtained from the testimony of others, and facts related to an expert through the use of hypothetical questions.
As a general proposition, in order to qualify as an expert, the witness need not possess special knowledge if he or she is generally conversant with the subject of the controversy. In the context of medical malpractice cases, although the expert must have sufficient familiarity with the particular medical technique involved in the suit, he need not have personally performed the procedure or be a specialist in the area. Generally speaking, objections attacking an expert’s training, expertise or basis of knowledge go to the weight of the evidence and not its admissibility.
If you have a medical malpractice case, make sure you consult with an attorney who has extensive experience working with expert witnesses. It may make the difference in whether you win or lose your case.