After the lawyer’s fees, this can be your biggest cost. Except in unusual cases, you have to show the doctor committed malpractice; he does not have to show he did everything right. Remember the old boxing rule that you have to beat the champ to win the title; you cannot take it with a tie. The same rule applies to most malpractice cases. The doctor can act as his own expert. If you do not have an expert to contradict him, he will win.
Even if you have a strong case, you must have a qualified medical or dental expert. Defense lawyers will raise too many side issues, and create such a smokescreen, they will probably convince the jury. Furthermore, jurors tend to be suspicious of someone who cannot get a qualified medical or dental expert to support their case. You have to hire an expert to explain the technical side of your case and tell the court how the defendant committed malpractice. Plan on at least one medical or dental expert. If your case is complex, or you are suing more than one doctor, you may need multiple experts.
In a Mississippi case, the mother of a child with cerebral palsy was never satisfied with the doctors’ explanation that it is something that “just happens.” When the child was three, the mother went to a lawyer, but by that time, the medical records had been mislaid or lost by the hospital. The lawyer found a specialist in Pediatric Neurology, who examined the child and decided the problem was due to a brain injury at the time of birth. When the records were finally discovered, the lawyer had them reviewed by an expert in Obstetrics, who found indications the child had been injured at birth, but references to the injury had been partially edited out of the records. The experts were able to show: (a) the cerebral palsy was caused by a birth injury, and (b) there was evidence of a birth injury that could have caused it. The experts convinced the jury, which gave the child a large award.
In a Florida case, a man was admitted to a hospital ER after a motorcycle accident. Because he smelled of alcohol, the ER doctor thought he was drunk, did not bother to examine him, and sent him home. By morning, he was dead from a fractured skull the doctor missed. When the family filed a lawsuit, the hospital lawyers claimed the man would have died anyway, and the result would have been the same, even if there had not been any malpractice. Florida law requires you to produce a medical expert from the same medical specialty, as the doctor you are suing. The lawyer found a specialist in Emergency Medicine, who testified the ER doctor had committed malpractice by failing to examine an accident victim, and a Professor of Neurological Surgery, who testified he probably would have survived with proper treatment. Together, they won the case.
You can see from these cases you may need more than one expert. The average fee charged by medical and dental experts is $300.00 to $400.00 per hour, and between $3,000.00 and $6,000.00 per day to testify in court, plus travel expenses. If the trial is delayed, and the doctor has to come back to court the next day to testify, you will have to pay him for another day. It can be expensive.
JD.MD, Inc., has served the legal communities in the U.S. and Canada since 1978. Contact us at 800-225-JDMD (5363) to have your malpractice cases reviewed by our medical experts and dental experts.