March 29th, 2021
Posted By
Rhett Fraser
The Role of Expert Witnes…

There has been a lot of talk in recent years about “the death of expertise,” but when an outcome matters, smart people still consult experts. That’s especially true in the law. Expert witnesses in medical malpractice cases often the difference between a claim that succeeds and one that fails.

Medical malpractice cases are complex and highly technical. Simply hearing the facts of what happened is often not enough to help a jury understand whether a doctor or facility committed malpractice. Medical malpractice expert witnesses help juries understand the relevance of those facts, and whether they add up to a valid claim.

The Role of an Expert Witness in Proving the Elements of a Claim

The elements of a medical malpractice claim are the factors that must be proven to show that malpractice did, in fact, take place. They are:

  • The existence of a duty of care between a provider and a patient; in other words, that the provider was obligated to exercise reasonable care in treating this patient.
  • A breach of the duty; the provider did not act in a way that a reasonable provider in the same situation would have.
  • The breach of the duty caused an injury to the patient.
  • As a result of the injury, the patient suffered damages.

If any one of those elements is not proven, a claim for medical malpractice must fail. An expert witness’s knowledge is essential in helping a jury understand things like:

In short, medical malpractice expert witnesses can help juries determine not only that the elements of a claim have been met, but what the value of the claim is. For an injured patient, the services of a good expert witness can mean that they recover the funds they need to live the best life possible after their injury.

How Expert Witnesses Influence Settlement

An expert witness in a medical malpractice doesn’t simply show up on the day of trial and hold forth from the witness stand. Reputable medical malpractice attorneys work with a trusted expert from the outset of a case to determine whether there is a claim that can be proven. Often, the involvement of a respected witness in a case motivates the insurance company to make a favorable settlement offer to avoid having to confront the expert at trial. A strong settlement offer also benefits the malpractice victim, who then receives a financial recovery sooner and without having to go through the stress of a drawn-out trial.

Who Can Serve as a Medical Expert in a Medical Malpractice Case?

Not just anyone can serve as an expert witness in a medical malpractice case. Under Rule 702 of the Oregon Evidence Code, a witness “qualified as an expert by knowledge, skill, experience, training or education” may testify if their scientific, technical, or other specialized knowledge will help the trier of fact (the jury, or the judge if there is no jury) to understand the evidence in a case or determine a fact in issue in the case.

As a practical matter, that usually means:

  • Board certification by the Oregon Medical Board
  • Active participation in medical practice
  • Extensive prior experience in the area of medicine at issue (e.g. cardiology or plastic surgery)
  • Respected in their specialty (e.g. publication in medical journals, leadership in medical organizations)

Oregon focuses on the substance of an medical malpractice expert witness’s knowledge and experience rather than only considering their credentials. An expert witness doesn’t always have to be in the exact same specialty as a defendant (the professional being sued). However, if they are not, the methods, techniques, and practices must be generally similar so that the expert’s testimony will be relevant to the issue at hand.

How the Fraser Law Firm Selects an Expert Witness in a Medical Malpractice Case

Not all medical expert witnesses are created equal, and just because a professional may qualify to testify as an expert under the Oregon Evidence Code doesn’t mean that they are the best choice for the role. At the Fraser Firm, we understand the important role of an expert witness in a medical malpractice case, and we use the most respected, knowledgeable, and trustworthy experts. With our focus on medical malpractice and personal injury matters, we have developed relationships over the years with numerous specialists whose reputations are stellar and whose knowledge and testimony are persuasive.

While a medical malpractice expert witness’s knowledge of medicine is critical, it is also essential that they be able to clearly communicate that knowledge to a jury. Other witnesses testify to the facts; the expert witness in a medical malpractice case explains what those facts mean. For that reason, our firm uses experts who are not only experienced medical professionals, but clear and effective communicators. To learn more about the role of expert witnesses in medical malpractice cases, or how our firm would work with experts in your particular case, please contact the Fraser Law Firm to schedule a consultation.