Why Does My New York Medical Malpractice Case Need An Expert And How Does It Work?


Medical malpractice occurs when a physician, providing a patient with treatment, falls below the standard of care that physician is held to and results in an injury or death of the plaintiff. In almost all New York medical malpractice cases, a medical expert is required to explain the medical standard of care and enhance each party’s respective arguments and rebut the opposing sides’ arguments. New York, like many other states, makes use of expert witnesses in medical malpractice suits.

The origin of such expert witnesses goes back to common law. The landmark case, Slater v. Baker, made the standard for physicians clear. In Slater, the court held that both physicians and surgeons “were to be judged by the ‘usage and law of surgeons . . . the rule of the profession as testified to by surgeons themselves.’” This idea of expert testimony moved from common law into the federal rules of evidence (FRE), as seen in FRE 702. According to FRE 702, “If scientific, technical, or other specialized knowledge will assist the trier of fact, to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” While expert testimony is tantamount to a mandatory requirement in medical malpractice cases, there are some situations in which a court will not require testimony of an expert witness. These very few cases are typically those in which negligence on behalf of the physician is overt.

These expert witnesses are essential in handling two important issues that arise in medical malpractice suits. The first issue relates to whether the physician followed industry standard of care for such professionals in the same field. The second issue pertains to whether the physician’s failure to follow that standard of care was, in fact, the cause of the patient’s injury.

Expert witnesses used to have judicial immunity in the courtroom. This immunity was dissolved in Brousseau v. Jarret. In Brousseau, the court held a patient is entitled to sue a physician acting as an expert witness who makes statements relating to the patient’s recovery and affecting their ability to collect from their insurance policy.

While courts may distribute punishment for expert abuses, professional associations are entitled to discipline expert witnesses. For example, if an association finds out that a physician has committed fraud under oath, that association may discipline that expert witness for that breach. These associations, however, must do so both in good faith, as well as not violating public policy in their discipline. The American Medical Association (AMA) actually encourages physicians to act as expert witnesses. The AMA wants its physicians to “participate in activities that contribute to the improvement of the community and the betterment of public health.”

If you or someone you know has experienced medical malpractice and is interested in bringing suit, our experienced attorneys are here to help. Our firm specialized in medical malpractice cases and will help you determine if you have a cause of action, if you are entitled to compensation, and help you get the damages you may be entitled to.

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 jfisher@fishermalpracticelaw.com.  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at www.protectingpatientrights.com.