Trial is perhaps the most difficult time for a plaintiffs' attorney in dealing with experts in medical-malpractice cases. Starting with jury selection, the defense will emphasize that medicine is as much art as science, which implies that there is no scientific standard of care, just medical judgment.
At the same time, the defense will emphasize the scientific literature (through their experts) that supports their theory on causation. From the outset of the trial, the jury needs to understand that medicine is very much science and that there are recognized standards of care, and that the facts of the case determine whether care is within such standards.
With regard to causation, most jurors will draw their own logical conclusions about the relationship between negligent care and injury or death, since they will not be able to comprehend the often obtuse defense theories on causation.
A plaintiff will never be able to succeed on the issue of causation without first showing more than sufficient evidence of negligence, which flows from the facts of the case, not the medicine.
For the presentation of evidence, most plaintiffs' attorneys use either the defendants or their experts to present the facts of the case. Few cases and fewer plaintiffs are appropriate to present the facts to the jury. But in almost any medical malpractice case that involves either hospital negligence or physician negligence that occurred in a hospital setting, one often overlooked group of witnesses can be very effective at trial.
These are charge nurses, supervisors, or even hospital administrators who are rarely involved in the actual case. These witnesses are in the best position to place care into context and will often be forced to admit that care did not comply with hospital policies.
While such witnesses cannot provide causation testimony, their testimony on hospital policies and procedures in relation to the facts of the case will often trump medical expert testimony on the standard of care, in the eyes of the jurors.
These witnesses should be deposed during discovery and then listed as non-retained experts so that their testimony can be presented at trial.
This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff
Magazine