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How important is an expert's opinion in malpractice claims?

No matter how intellectually stimulating, interesting or financially beneficial a physician finds serving as an expert witness, the physician should also be wary of the intense cross-examination that the medical professional's testimony will undergo in a medical malpractice case. It is no longer true that expert witnesses receive immunity from civil law based on their testimony. New case laws have redefined the legal responsibility that the litigating parties owe the judicial witnesses.

In lawsuits that involve medical malpractice cases, the responsibility of the medical practitioner toward the patient is usually understood by the creed of the medical profession. A credible medical professional is required to explain to the counsel what the defendant could have done and what should not have been done in those particular circumstances. That can then be used to determine if the defendant's behavior justified what resulted from that person not adhering to medical care standards. In that case, it will be considered necessary in medical malpractice cases to present the testimony of expert witnesses in court.

The need for a professional witness in a medical hearing can be traced back to English common law. The concept of standards of professional conduct was first established in the 1767 case of Slater vs. Baker and Stapleton. The trial centered on the ethics of two medical professionals, who refractured the leg of a patient and used an unconventional device with the hope of realigning the limb correctly. The patient pressed charges and the judicial testimony of a professional witness helped the patient win the case. It was concluded that the unconventional device used was not in keeping with contemporary medical standards.

There are, however, some clinical malpractice litigations that do not require a professional witness. For example, hearings in which carelessness is obvious and which a jury understands, such as amputation of the wrong limb or forgetting surgical material, like cotton inside the body.

Source: ncbi.nlm.nih.gov, "The Expert Witness in Medical Malpractice Litigation," B. Sonny Bal, Dec 4, 2008

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