Wrongful death cases often present complex causation issues. While difficult to hear, “the patient would have died anyway” is often asserted as a defense, depending on the circumstances and the jurisdiction. Proving that negligence was actually the cause of a patient’s death may require expert medical insight.
This is where the right medical expert witness plays a critical role.
Providing a realistic case assessment
When a potential case presents a particularly difficult causation issue, the right move may be to decline the representation entirely. As much as every plaintiff’s lawyer wants to help people in bad situations, sometimes, the best thing you can do is explain why their case isn’t winnable.
In those situations, talking to an experienced medical expert can make all the difference. First, the expert can give you their honest, unvarnished opinion as to whether the case can be proven by a reasonable degree of medical certainty. Second, the right expert can explain why the case is not viable, from a medical perspective, and give you the tools you need to explain that to the disappointed potential client – protecting your reputation and leaving them with at least some answers.
Navigating jurisdiction-specific doctrinal issues
The majority of U.S. jurisdictions recognize the “loss of chance doctrine” (LOCD) in medical malpractice cases. This means that the loss of a chance for a better outcome is compensable, even if you can’t prove over 50% causation. For example, if the patient would have had a 40% chance to live with proper treatment, but died after receiving negligent treatment, then in most states, the loss of the 40% chance to survive can still be compensated. However, that 40% chance has to be proven to a reasonable degree of medical certainty, and only a medical expert can do that.
In the minority of states that reject the LOCD, causation is all or nothing, so the stakes are higher. Again, you need compelling testimony from a highly qualified expert to prove to a jury that negligence was – or was not – the proximate cause of death.
Breaking down complex medicine for a lay audience
Establishing why a patient died, when that picture is complicated by pre-existing conditions, can get complex and highly technical. It’s no surprise that these cases often come down to a “battle of the experts,” where whichever side can explain the medicine in a more coherent and credible manner usually wins at trial. It’s not enough for a doctor to understand the medicine. The best expert witnesses know how to put their explanation in plain language without coming across as condescending, and how to withstand probing cross-examination from opposing counsel.
For nearly four decades, the team at Rieback Medical-Legal Consultants has been providing the best medical experts to serve the legal community. The experienced physicians and other medical professionals in our network are prepared to offer compelling testimony in depositions and, if necessary, at trial. Give us a call or contact us online to find your expert.