Chapter 8. Experts

• Pages: 119-134
• Author: Kimberly Grant Silvus

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8

EXPERTS

Kimberly Grant Silvus

Expert witnesses are at the heart of a healthcare liability or medical malpractice

action. Courts in the United States rely heavily on the opinion testimony of health-

care providers to educate judges and juries on the medical complexities of a case.

Expert witnesses identify and explain standards of care and practices that are com-

pliant with or in deviation from those standards, identify and explain injuries sus-

tained by patients as well as the likely causes of those injuries, and offer opinions

about a patient’s future prognosis and medical needs. Without the opinion testi-

mony of the expert witnesses in a medical malpractice case, juries would not have

any information from which they could distinguish injuries caused by wrongdoing

of the defendant provider from injuries that are simply caused by acceptable risks

associated with a given treatment.

Finding the right experts for a case and understanding how to make the most of

their opinions are a critical aspect of the pursuit or defense of a medical malprac-

tice lawsuit. For those attorneys who have stayed far away from biology, chemistry,

and anatomy and who certainly did not go to medical school, trying to navigate the

expert witness aspect of a medical malpractice case can be daunting and intimidat-

ing. A lawyer is suddenly supposed to draw on a liberal arts degree in literature or

history and look at an injured person, identify the specialty of medicine responsi-

ble for the injury, spar in some intelligible meaningful manner with experts on the

other side in a deposition, confidently present her experts at trial, spar again with

the experts for the other sidethis time with an audienceand then distill the

immensely complicated medicine into a persuasive comprehensible narrative for a

jury. And lawyers must accomplish this within the confines of procedural and evi-

dentiary rules governing who qualifies as an expert, what type of information must

be disclosed to the other side, and in which circumstances and by what means a

lawyer can challenge the admissibility of an expert or her specific opinions.

The procedural and evidentiary rules involved in the expert witness aspect

of a medical malpractice case require careful thought and analysis. This chapter

will provide a basic introduction to this challenging phase of a healthcare lawsuit.

After a brief introduction to the role of experts in healthcare liability actions, this

chapter will address generally how to decide on the type of expert, how to obtain

the expert, and the requisite contents of a Rule26 disclosure. It will then address

the issue of deciding whether a treating healthcare provider constitutes an expert

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An Introduction to Tort-Based Healthcare Litigation

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witness and discuss the means by which a party can challenge the admissibility of

an expert or portions of her opinions at trial.

The Role of an Expert

With limited exceptions, a plaintiff cannot establish his prima facie case for med-

ical malpractice without experts, and a defendant would face a significant uphill

battle without them. A plaintiff has the burden of establishing a prima facie case

that the medical provider in question deviated from the applicable standard of care

and that the deviation caused a harm to the patient that otherwise would not have

occurred. With certain exceptions, the plaintiff meets this burden by introducing

the testimony of qualified expert witnesses. The plaintiff ’s expert witnesses must

be disclosed to the defendant in advance of trial, and the requisite content of these

disclosures in federal court is controlled by Rule 26 of the Federal Rules of Civil

Procedure.1 Similarly, any expert witness a defendant intends to present at trial

must be disclosed to the plaintiff in advance of trial. No witness may offer opinion

testimony at trial if that witness has not been disclosed to the other side in advance

of trial in compliance with the Rules of Civil Procedure.

The expert witness component of a medical malpractice case raises several

questions, but the initial ones are how to decide what type of expert is needed and

what is required by the Rules of Civil Procedure in an expert disclosure. Beyond

these two basic questions are more nuanced issues of who constitutes an expert

that must be disclosed in advance of trial, who is qualified to be an expert, and

under what circumstances and by what mechanism can one side challenge the

admissibility of a disclosed expert’s opinions. Questions often arise concerning

whether treating healthcare providers of the plaintiff are expert witnesses for

whom a disclosure is required. This chapter strives to provide basic guidance and

suggestions on these issues.

Determining the Type of Expert Needed

Both plaintiff and defendant need at least one expert (and likely more than one)

in a medical malpractice case, given the complexities inherent in such cases. At

the most basic level, the case will typically involve issues of standard of care,

causation, and injury or damages. Acquiring reviewing or consulting experts early

in the course of litigation is advisable, because as the case develops, other medi-

cal issues could arise where expert opinion from a very specific specialty may be

helpful. Often a case will have a deadline by which each side must disclose expert

witnesses.

1. Please see the relevant state court rules of procedure for the applicable parallel rule.

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