Proper Use of Expert Opinions
Expert witnesses are critical in many professional malpractice cases. This is particularly true in the med-mal context where expert testimony may be necessary to help understand causation. More specifically, experts in medical malpractice cases are essential in helping the fact finder determine whether the medical professional’s actions (or inactions) were the cause of the alleged injury. Whether an expert succeeds in this task can be the difference between a win and a loss at trial and in some cases on a motion for summary judgment. Take for example the following scenario.
“Mother” gave birth to “Daughter” prematurely in the hospital so she was transported to the intensive care unit for monitoring. While there, a nurse employed by the hospital tripped over an equipment cord and dropped Daughter, causing her to allegedly fracture her skull. Mother alleged that Daughter was left on the floor for 13 minutes before she was discovered by “Physician.”
In addition to the hospital and the nurse, Mother sued Physician alleging that he was directly and vicariously liable due to the negligence of the nurse. Physician moved for summary judgment on the basis that Mother had failed to provide any evidence that he breached the applicable standard of care and that his breach caused the alleged injuries.
In response, Mother produced an affidavit from a neonatologist that stated the doctors and nurses taking care of Daughter “failed to use ordinary care”, “failed to use devices and techniques to prevent [Daughter] from falling on the floor”, and “all cords and other obstacles should have been removed from the area.” She also produced an unsworn report by a child neurologist, who stated “[i]t is clear that dropping an infant to the floor high enough to sustain a skull fracture places the infant at risk for subsequent neurologic sequelae. This also would represent a breach of safety outside of the standard of care expected for an infant in a neonatal nursery.”
The trial court granted the Physician’s motion. On appeal, the decision was affirmed. The appeals court found not even “a scintilla of evidence” that Physician breached the applicable standard of care. The court found that Mother’s neonatologist should have opined as to what policies and procedures would have satisfied the Physician’s duty. Additionally, Mother did not set forth any evidence that actually established that Physician failed to establish safety policies and procedures.
While the outcome above worked in favor of the medical professional it provides a good lesson on the use of experts. When using an expert in a malpractice case attorneys and other professionals need to ensure that the expert connects the dots. Clearly identifying each element of the claim and working with the expert to ensure that his opinions satisfy those elements can avoid a result such as the one above. It’s also important to notice when the other side’s expert has not rendered a sufficient opinion and raising it as a defense whenever possible.