Battle Of The Experts In Medical Malpractice Cases


In order to successfully win a medical malpractice case, the plaintiff’s attorney must prove that: there was a doctor-patient relationship; a duty was owed to the patient; the offending doctor deviated from accepted medical standards; the deviation injured the patient; the injuries gave rise to damages.

Experienced medical malpractice attorneys know that these basic elements must be proved at court and specifically so by the use of expert testimony.

Injured patients should not be afraid of experts.  Indeed, the duty of care owed to the patient and the deviation must be proved by an expert on the plaintiff’s side of the bar.  And naturally, the defendant will produce his or her own expert to prove that there was no deviation from accepted medical standards.

A decision made by the State of New York Supreme Court, Appellate Division Third Judicial Department made just a couple of weeks ago on July 10, 2014 will illustrate this issue.  The case is titled Rivera v. Albany Medical Center Hospital.

This case made it to the appellate division because the lower court refused to dismiss the complaint, so the defendant appealed to the higher court for a favorable decision.  The appellate court, however, upheld the lower court’s decision.

The background in brief is that the injured plaintiff had surgery and later claimed that it was performed negligently and that the procedure was not performed with his valid informed consent.

First and foremost, the court held that the defendant’s expert failed to provide testimony proving that the doctor did not deviate from proper care; nor did the expert show that the doctor did not injure the patient.

But there was also the informed consent issue.  Informed consent requires doctors to disclose the benefits, risks, and alternatives to proposed treatments.  Without getting such consent from the patient, the doctor should not perform the procedure.  If he or she does go ahead with the procedure, a medical malpractice action can be litigated based on the lack of informed consent if a similarly situated patient would not have elected for the procedure had informed consent been given.

The defense here provided expert testimony to prove that informed consent was given.  The court held such to be insufficient and even if it had been sufficient, the plaintiff’s contention verses the expert’s contention is a factual dispute to be decided upon by a jury.

As you see from this case, all sides will use experts and the patient should not be afraid because the defense expert may not provide sufficient testimony to contradict the patient.  Moreover, even if the defense expert does do such, the jury gets to weigh the credibility of each expert and decide the matter on the facts.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at