Our firm handles birth injury lawsuits all across the country. Each state has very specific rules regarding medical malpractice experts, particularly experts who testify about the standard of care. In this age of “tort reform,” failure to adhere to those requirements and the detailed rules regarding expert reports can cause dismissal of a case.
Medical Expert Requirements
In general, medical experts must be qualified to give testimony based on their knowledge, education, training or experience on a specific issue. In many cases, a judge may act as a gatekeeper for evidence, deciding whether it is competent evidence to be placed in front of the jury.
Many courts have rules about the qualifications of experts in medical malpractice cases. Those requirements typically fall into these categories:
- Practice requirements: some states require that experts devote a specified percentage of time to the actual practice of medicine, or to the teaching of medicine. The goal here is both to eliminate would-be experts who spend most of their time testifying in court cases, and to ensure that hired experts are actual practitioners who will be more likely to know what the standard of care is through current experience.
- Board certification: doctors must sometimes be board-certified in the same specialty as the defendant doctor, or board-certified in the relevant area of medicine over which a claim is made.
Locality Rule/National Standard of Practice
States differ on exactly how to define the standard of care. Some courts are even today struggling with the question of whether the standard of care is a national standard, a state standard, or even more locally a county or hospital standard. For patients, the question is whether they expect the same treatment from a doctor at a nationally-recognized hospital like the Mayo Clinic as from a local community hospital that no one has ever heard of.
To be sure, the resources of smaller hospitals are less advanced, and no one can fault them for that. But we find that in a world where doctors are trained according to the same standards, using the same books, taking the same tests and board certifications, and oftentimes far away from where they end up practicing, the standard should be a uniform national standard.
Some states, however, require that experts testify about the local standard, assuming that there might be a difference. Therefore, it is the lawyer’s job to make sure that birth injury experts can qualify for the court’s requirements, and that they know everything there is to know about the local standard of care where it is required.
Medical Expert Reports
State courts also have rules about what information must be disclosed during lawsuit discovery. Discovery is the process of disclosing information so that no party feels ambushed at trial. The goal is for a trial to be on the merits of the case, not on legal maneuvering.
Some states require that experts provide reports outlining their opinions. Because of tort reform, some states even require an initial expert report from a doctor or other health care provider to be filed with the lawsuit as evidence that the lawsuit has merit and is not frivolous. In some cases these are simple formalities; in other cases these reports must comply with complicated and technical rules to ensure that the lawsuit survives later motions to dismiss.
Medical Malpractice Lawyers
Medical malpractice lawsuits are complicated, and the state court rules for these cases are frequently changing in response to new legislation and precedential court rulings. It is important that any lawyer you hire be well versed in medical malpractice law—indeed, it should be the focus of their practice. The majority of your lawyer’s cases, if not 100%, should be medical malpractice. This will ensure that your lawyer is educated as to the most recent developments in medical malpractice law.
Our medical malpractice lawyers have litigated birth injury lawsuits across the nation. We have the expertise necessary to ensure that all expert requirements and reports are met, and that each case can be litigated on its merits as opposed to procedural technicalities. If you believe you have a birth injury malpractice lawsuit, contact us at (440) 252-4399 or send us an online request for more information.