Under the law in California and every other state, proof of liability for claims of negligence against a health-care provider requires expert testimony on both standard of care (negligence) and causation.
While expert testimony is necessary to defeat a motion for summary judgment, many plaintiffs' attorneys mistakenly believe that expert testimony must be the driving force of the case, and in doing so, play into the defendant's game plan for defending the case. This mistaken focus on the medicine of the case is understandable since any attorney filing any medical malpractice claim must rely on at least one medical expert to provide confirmation of the validity for a claim of negligence against a health-care provider.
However, from the moment a medical malpractice claim is filed until the case goes to a jury at the end of trial, the defense will often ignore the facts of the case and focus only on the medicine and expert opinions. Because most defense attorneys are so adept at keeping the focus of almost any medical-malpractice case on the medicine and medical experts, jurors fail to find liability in the majority of medical-negligence cases that go to jury verdict. While medical experts are legally required in medical-malpractice cases, they should not be, and they do not need to be, the focus of the claim.
The role and purpose of medical experts is different at different stages of a medical negligence claim. Prior to the filing of a claim, at least one medical expert should agree that there was substandard care, but a different expert may be needed on the issue of causation. While providing the medical records to an expert and then waiting for a decision on standard of care and causation is the easiest method for obtaining the required expert opinions, it is not always the best way.
Often the opinion of the expert may be affected by the facts of the case, which may not be accurately or completely reflected in the medical records. A focused summary of the important facts of the case, prepared by the attorney, will assist any expert who is asked standard of care opinions.
While any such document is discoverable at the time of the expert's deposition and many attorneys are reluctant to provide such direction to an expert, it is better to have a focused expert who relied on the plaintiff 's version of the facts than an expert who thinks that their interpretation of the medical records is more important than the facts of the case.
This article, written by medical malpractice attorney Dr. Bruce Fagel, originally appeared in the March 2011 issue of Plaintiff Magazine