Most medical malpractice cases need the testimony of a medical expert because the facts of the case are usually too complex for a person without a medical background to determine whether the doctor is liable for the patient’s injury. While the jury does not need to adopt the opinion of the expert, the opinion must be used when they are considering the facts.
The medical expert will address whether the doctor followed the same standard of care as other doctors in the same position and whether the doctor’s failure to follow the standard caused the patient to be injured.
Expert Witness Qualifications
Guidelines or standards for expert witness qualifications can be established by any organization. These standards however do not carry the force of law. In order to be incorporated into law, the standards need to withstand legal challenges and be upheld by the highest court in the state.
The only requirement for a witness to testify as an expert is for the witness to be considered an expert by the court. There is not a requirement that the witness be a physician that practices in the same field as the defendant. Additionally, the expert’s testimony will be admissible regardless of whether the expert’s view are neither popular or the same as the medical community’s. The medical expert does not need to be licensed in New York because New York does not recognize a local standard of care.
Basis for the Expert’s Opinion
Once it has been decided by the trial court that the expert can testify, the expert may use all the facts that are admitted into evidence and that are within the knowledge and expertise of the expert. This could include other witnesses, documents, photographs, medical records, and x-rays. It should be noted that in New York, x-rays are treated as a writing. Therefore, under the best evidence rule, the production of x-rays is required. If party is able to explain why an x-ray is not available, then secondary evidence of the contents of the x-ray can be introduced.
As long as the expert’s opinion relates to an ultimate question of face it is admissible. However experts cannot base his or her opinion on speculation. Additionally, the expert’s opinion must be predicated upon a reasonable degree of certainty. The expert may not guess or think that the defendant acted improperly but can testify on the basis of probability. These rules tend to be ambiguous.
Medical malpractice cases are highly regulated and very complex. Therefore it is important that you retain the representation of an experienced medical malpractice attorney as soon as possible.
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