Medical Expert Witness and Proving Malpractice

Medical malpractice law is based on concepts drawn from tort and contract law – commonly understood as liabilities arising from the delivery of medical care.  Malpractice suits are generally based on negligence, breach of contract (a treatment guaranteeing a certain result), intentional misconduct, divulgence of confidential information, defamation, insufficient informed consent, or the failure to prevent foreseeable injuries to third parties.  Out of these, the most common cause of medical malpractice suits is negligence.

Medical negligence, according to Black’s Law Dictionary, requires the plaintiff to establish the following:

  • the existence of the physician’s duty to the plaintiff, usually based on the existence of the physician-patient relationship;
  • the applicable standard of care and its violation;
  • the damages (a compensable injury);
  • the connection between the violation of the standard of care and the harm complained of.

Medical expert witness testimony is used by both the plaintiff and defendant in medical malpractice suits.  The expert witness testimony plays an important role in determining if malpractice occurred or not and by and large, the courts rely on this testimony to establish the standards of care germane to a malpractice suit.  In a nutshell, the expert witness testimony describes the standards of care relevant to the given occurrence, identifies any shortcomings to this standard and states whether the shortcomings are the most likely reason for the injury.  Without the medical expert witness testimony, juries who do not possess the same technical expertise would be at a loss to distinguish malpractice from mal-occurrence.  How exactly does an expert witness prove that malpractice has occurred?

Establishing the Standard of Care

According to the law of negligence, standard of care is “that degree of care which a reasonably prudent person should exercise in same or similar circumstances.”  In the case of medical malpractice this is understood to be, “that reasonable and ordinary care, skill, and diligence as physicians and surgeons in good standing in the same neighborhood, in the same general line of practice, ordinarily have and exercise in like cases,” and the defendant’s behavior  is compared with this standard.

The first job of an expert witness would be to establish the “standard of care” in relation to the medical occurrence.  This would be done by showing what a prudent health care professional, with similar education and training, would have done under the same circumstances.  What would be the medical issues considered and addressed, course of treatment chosen and followed and procedures performed by a similar healthcare professional?

Proving Breach of Standard of Care

Next, the plaintiff’s expert witness has to prove that there was a breach of the standard of care relevant to the medical occurrence.  Evaluation of factual testimony provided by other witnesses and going through medical reports and other test records are used to indicate if there has been any deviation from the acceptable standards.  Using these, the expert witness has to prove that the defendant’s care of the plaintiff was not up to the standard of care, as earlier determined.  If it is determined that the care provided was “substandard,” the expert witness may be asked whether the deviation could be the cause of the plaintiff’s injury.


The jury members are in the majority of cases, laymen in the field of medical science.  The outcome of the case depends on how well the expert witness has been able to make the jury members understand the complexities of the treatment and the whether there has been a deviation from the standards of care or not.




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