How Medical Expert Witnesses Determine if Standards of Care were Met


by Dr. Browning Wayman (Guest Contributor)
May 17, 2022


How to Become an Expert Witness

The medical expert witness is of utmost importance for both sides of a medical malpractice case, as both the plaintiff's and defendant's attorneys rely heavily on their expertise. Medical expert witnesses are often sought out from prestigious academic institutions. They are often considered to be thought leaders in their respective fields and may be authors of textbooks or cutting edge research. Despite the leading idea that acclaimed experts are the most qualified expert witnesses, the context of the case should play a significant role in who truly qualifies as an expert.

The 4 Elements to a Medical Malpractice Case

It is widely accepted that there are 4 elements to a medical malpractice case:

  1. Duty: The physician owed the patient a duty of care.
  2. Breach of Duty: The standard of care was violated.
  3. Injury: The patient sustained injury or damages.
  4. Causation: The substandard care or negligence was the direct cause of the injury or damages.

At the heart of every case, the primary question that the medical expert witness must answer is "Was the standard of care met?" The answer to this question is of utmost importance to the client, as it plays a significant role in the future of the case.

What Exactly is "Standard of Care"?

As a physician, this term is not something I learned about in medical school or residency. That's probably because it's not actually a medical term. It's a legal term. Its evolution and current definition can be traced to various influences and includes several cases such as Hall v. Hilbun (1985), McCourt v. Abernathy (1995), and Johnston v. St. Francis Medical Center (2001). A widely accepted current definition of "medical standard of care" is that which a minimally competent physician in the same field would do under similar circumstances.

Determining Whether the Standard of Care was Met

How do non-medical clients determine whether the standard of care was met? They ask their medical expert witness to apply their expertise to answer this question.

I'm an Emergency Medicine physician. I have practiced in almost every type of Emergency Department imaginable. I have worked at the academic tertiary referral hospital that served as the regional Level I Trauma Center, with access to consultants from every specialty imaginable and multiple Emergency Medicine physicians working at all times. I have worked in an academic Pediatric Emergency Department, with access to consultants from almost every pediatric specialty. I currently work in two busy, urban community Emergency Departments with consultants from many specialties on call, and sometimes another Emergency Medicine physician and one or two Nurse Practitioners. I also currently work in a single coverage rural Emergency Department that has one hospitalist for simple admissions, and the only consultant on call for the hospital is a general surgeon (with the exception of weekends, holidays, and regular vacation weeks).

Consider the following scenarios that every Emergency Medicine physician is likely to encounter over the course of his or her career.

  • Scenario 1: A motor vehicle accident on the highway involving multiple vehicles results in 7 patients with traumatic injuries.
  • Scenario 2: An elderly patient with a history of an abdominal aortic aneurysm presents with acute abdominal pain and hypotension.
  • Scenario 3: A morbidly obese patient who takes an ace-inhibitor presents with severe angioedema affecting the patient's lips and tongue.
  • Scenario 4: A young female who had a positive home pregnancy test presents with lethargy and hypotension.
  • Scenario 5: An infant presents with severe stridor.

So what exactly is the standard of care in each of these scenarios? It depends! Which Emergency Department did these patients present to?

An Expert Witness, also known as a Testifying Expert, is someone who utilizes their expertise to provide their opinion about a topic that requires clarification and understanding. They assist the attorneys in understanding and presenting the technical aspects of a case. The Expert Witness is most commonly utilized in court, but they can also be of use during litigation and arbitration.

For the sake of simplicity, let's compare the two practice sites that are on either end of the spectrum. Take a moment to think through each scenario individually and imagine that you are working at the academic tertiary referral hospital (Level I Trauma Center), with every resource imaginable at your fingertips. Consider what actions and consultants could be quickly deployed in an attempt to obtain the best possible outcome for your patients. What would a minimally competent physician in the same field do under similar circumstances? Your answers might reflect those of a board exam vignette.

Now, consider that you are working in the single coverage rural Emergency Department. It is the middle of the night on a weekend. You are the only physician awake in the county, let alone the hospital. Every hospital in your region of the state is on full diversion and not accepting transfers. The weather is bad, and EMS flight crews have been grounded. Once again, think through each scenario individually. What would a minimally competent physician in the same field do under similar circumstances? Your answers may differ significantly when compared to those from the first hospital.

The standard of care is not found by asking what should have happened under ideal circumstances. The standard of care is that which a minimally competent physician in the same field would do under similar circumstances. While one particular course of action may be considered substandard under one circumstance, it may be nothing short of a heroic effort by a highly competent and skilled physician under another circumstance. This reality is not something that is reflected in textbooks and medical literature, and it may not be understood by physicians who have not found themselves caring for patients under similar circumstances.

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