There are a lot of ways a person can suffer harm from medical malpractice. I have previously written that one good way to avoid a lot of potential medical malpractice complications is to avoid doctors and hospitals. After all, it is rather difficult to get hurt by a doctor or a hospital if you’re not there. But, I also know that a person can get hurt by over avoiding the medical establishment and not properly taking care of routine medical issues in a timely fashion. I have often said that a long sickness is a sure death. My conclusion is to utilize the medical system very prudently and check on everything.
If and when something does go wrong with medical care it might very well give rise to a medical malpractice lawsuit. In general, when person is harmed in the context of medical care then that person brings a suit against the doctor or hospital for Professional Medical Negligence. It is a requirement in nearly all fifty States as well as the Federal Court that any person who brings such an action must have a medical expert witness to support the claim. In most jurisdictions this breaks down generally into two steps.
In step 1 the medical expert must review the facts and records of the case and declare in a written opinion/report that there exists a meritorious cause of action and that the claim is not frivolous. This step, you might notice, makes medical malpractice lawsuits different than all others. In no other situation must anyone obtain any sort of expert witness to file and/or initiate a lawsuit. The reasoning behind this legal step is to protect doctors from being harassed responding to legal proceedings. The system is trying to insulate doctors to some extent because of the nature of their work. The main legal basis for proponents of this law who counter opposition arguments that this is illegal special legislation and/or an illegal transfer of judicial powers to the medical profession itself is that medical cases almost always require a medical expert witness in the proceedings and so this requirement is just being mover forward in time.
The law does not generally favor expert witnesses. The reason for this is that such witness is not really part of the case and can thus have biases and prejudices of their own. On the other hand the law does recognize the need for expert witnesses to explain to the jury the medical issues of the case where such topics are usually beyond the ken of the common man. After all, a juror is not trained in medicine and cannot be expected to understand everything that’s being explained. The only way to get those complex medical theories explained is
by having a medical expert tell the jury what did and didn’t happen and whether that was proper or not and why. The expert explains to the jury why the expert feels that the doctor / hospital did something wrong or not. Each side, the plaintiff (the injured party bringing suit) and the defendant (the doctor or hospital) gets to retain an expert and each side’s expert explains to the jury why one side or the other is right or wrong. The jury then decides.
Over many years I have almost never seen the plaintiff and defendant’s expert agree on what they’re telling the jury. Now think about how crazy that is. The legal system tells the public that it needs medical experts to explain medicine to them and yet the medical experts are saying two different things! How can two people explain something if they both don’t know it? The fact is that one is always lying for his team. So, if two physicians in the same field can’t agree, or one or both are lying, then how can we expect the jury to be guided by their testimony? Instead, what we’ve created is a system where two experts, who are not even part of the case, get paid big bucks to duke it out to determine who shall win.
It is no wonder there is always a contrary opinion from medical experts in court. It is amazing to me that this system isn’t addressed. The standard of care of medical practice is very well known in all but a few very complex cases and it makes no sense that in every single medical malpractice case that the two hired professionals never agree. Is the field of medicine that primitive still? Of course it isn’t. I feel that the system should perhaps train and certify all practicing physicians for rotating duty as a Court’s Expert. To eliminate the chance that one medical expert have too much say over a case maybe have three such experts present their opinions to the jury very succinctly. Then also have a Medical Judicial oversight Committee which reviews the findings and testimony of these Court’s Experts for honesty and veracity. This Committee would have the power to recommend severe sanctions to the State Medical Board upon a physician who doesn’t testify properly or truthfully. Society really has to look at cleaning this up.