The law requires that virtually all medical malpractice cases must be proven with medical expert testimony. The only exceptions are for those rare cases involving sponges or instruments which have been left inside of patients.
Although there is certainly a large market of out of town "hired guns" to testify, these type of experts usually do far more harm than good to the case. Thus, it is essential that an experienced medical malpractice attorney with access to the top, well-credentialed experts be retained.
Generally, the type of expert to be retained must be a physician who practices in the same specialty as the accused doctor. Most experienced malpractice lawyers prefer to retain a medical expert who has an academic, or teaching background and clinical or hands-on experience with patients.
After all, it is the expert's job to explain the medicine to the jury and why this particular doctor provided inadequate care under the circumstances. If the expert has a teaching background, then he is used to teaching students and others about medicine and is usually good at drawing powerful illustrations for the jury.
Experts with only teaching backgrounds will be subject to criticism at trial because of the lack of day to day experience "in the trenches." An expert who only practices medicine, but never teaches it may find it difficult to explain the difficult concepts of medicine to a jury. If the expert cannot explain the medicine in easy to understand terms to the jury, his resume is irrelevant.
Most physicians will not testify against other physicians in the same state in which they practice. Thus, most testifying experts are from out of state. However, actively practicing and teaching physicians are very busy with their own schedules and usually charge a small fortune to be involved in medical malpractice cases. It will also require the expenditure of more money to travel out of state for the defense to take the deposition of a testifying expert.
Many experienced medical malpractice attorneys will not agree to take a case until they have a qualified medical expert who is willing to come to court to testify that malpractice was committed. This is true even if a consulting expert has previously indicated that malpractice was involved in the patient's care. The reason for this rule is simple. Until a qualified medical expert is willing to provide sworn testimony in court, the case is not provable.
Many times consulting and testifying experts disagree about the merits of a case. Since the consulting expert either cannot or will not testify, the case cannot proceed until the ultimate testifying medical expert agrees that a case exists. The earlier in the process that a testifying medical expert can be retained, the better.
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