Expert Witnesses and Medical Negligence Cases- Part 2

Expert Witnesses and Medical Negligence Cases- Part 2

In the first part of my series of posts on the subject of expert witnesses in medical malpractice case, I talked about the dangers of allowing so-called experts to interfere with the jury’s fact-finding role.  Juries are supposed to hear all of the relevant facts and make their decisions based on the facts that they believe are important, with as little interference as possible from outside influences.  We can and should trust our fellow citizens with this important task.  However, getting those facts to our community-representatives on the jury is a challenging task in a medical negligence case.

Let’s start right at the beginning. You don’t need a truck driver’s permission to sue a truck driver. You don’t need a stockbroker’s permission to sue a stockbroker. In the vast majority of cases, you don’t need the permission of somebody like the defendant to file a lawsuit.  In medical negligence cases, that is simply not true. In order to even file a case against a doctor you first need the permission of a doctor just like the defendant. Because similar provisions exist in Pennsylvania and Ohio, I’ll use West Virginia as an example.

When a West Virginia family has been victimized by the misconduct of a doctor, they often do not and cannot know all of the details of what happened because those details are controlled, to a large extent, by the doctors and the hospital that caused the harm in the first place. These families weren’t scrubbed in for the surgery that caused their loved-one’s death. The only thing they know about what happened during that surgery is what the doctors told them. Of course, one of the first steps in the case is to collect all of the medical records. Again, however, the facts that are contained in those records and the spin put on those facts are all controlled by the doctors and the hospital. Obviously, the family is already at a significant disadvantage. The key facts of the case have already been written by the people who caused the harm.

Beyond that, this family will now need the permission of somebody just like the defendant before they can even file suit. West Virginia Code §55-7B-6 relates to all medical negligence cases in West Virginia. It states that before ordinary citizens of West Virginia can even file a lawsuit, they need permission to do so from somebody just like the defendant. If a West Virginia citizen is killed by the malpractice of a vascular surgeon, that citizen will need the permission of a vascular surgeon to even file a case, in most instances. More than that, the expert has to state exactly what happened and how that conduct caused harm. The expert’s opinion has to be based on the records, and the expert has to specifically identify the records that he or she has reviewed. Now, there are many well-qualified experts out there willing to speak up for families who have been hurt, but they are still doctors who see things like doctors do. The problem is clear. Before a case even starts, facts written by the defendant have now been filtered through a doctor with the same job. Ordinary citizens are supposed to have the right to seek justice in the courts that they pay for.  In malpractice cases, that right is subject to the blessing of doctors. Through this mechanism, the scope of what the jury gets to hear has already narrowed. It gets worse, as I’ll discuss in my next post on the subject.