Sometimes it seems that medicine is to law like oil is to water. One of the challenging parts of medical malpractice legal work is translating medical and health related concepts into testimony that meets legal standards.
I can’t think of a better example of this than the area of causation. In any negligence case, including a medical malpractice claim, plaintiff has the burden of proving several elements. One of them is that the errors or mistakes of the defendant proximately caused harm to the patient.
Proximate causation is a rather complex concept that requires proof of two separate elements:
• The defendant’s substandard care was a cause in fact of the injury or harm to the patient. A cause in fact just means it’s an actual cause of the injury but that’s not enough to meet the legal standard for negligence . . .
• There also must be proof of foreseeability. This means that a person similarly situated to the defendant under the facts of this case would have reasonably foreseen that the patient could have been injured by the medical error or mistake.
Under the law, some medical mistakes just don’t matter. Near misses don’t cut it. There has to be a real discernible injury. When a patient was almost killed but recovered from the medical mistake with no injury or damages, there’s not a case.
When there’s a medical mistake that foreseeably caused a significant injury to the patient, you have all the ingredients of a potential medical malpractice case. Just like in the kitchen, though, it takes experience to put it all together.
Most states, including Texas, requires plaintiffs to produce medical and sometimes other types of experts (nurses, therapists, economists, etc.) to broad testimony to the jury about the key issues of the case. Under Texas law, expert testimony is required to establish the standard of care, how and by whom was violated, proximate causation, and damages.
The proximate causation component has to be supported by expert testimony from a qualified licensed physician. One of the most common traps that trip up some physician experts is providing conclusory opinions.
Just like it sounds, a conclusory opinion provides a conclusion without an explanation or basis. In its opinion Bustamonte v. Ponte, 529 S.W.3d 447, 462 (Tex. 2017), the Texas Supreme Court explained that an expert’s “testimony is conclusory if the witness simply states a conclusion with an explanation or factual substantiation.”
There are several ways that top-rated experienced Texas medical malpractice lawyers make sure that the medical experts that they retain provide testimony that meets the causation legal standard. Here are some the reasons the Texas courts have found medical expert opinions to be non-conclusory, meaning they satisfy the legal standard:
• Experience. When providing testimony, the physician expert should discuss his or her training and experience with the precise diagnosis and medical or surgical care at issue in the lawsuit. Additionally, instead of simply stating the standard of care, the expert should explain why a reasonably prudent doctor would follow the standard of care under circumstances similar to what happened in the case.
• Knowledge of applicable standards care. Physician experts should provide clear testimony that they have knowledge of the accepted standards of medical care for the diagnosis, care, or treatment of the condition at issue in the lawsuit. There are a myriad of ways that a physician could demonstrate this familiarity, including:
(1) What doctors of the same specialization do under similar circumstances. This can be observed through hospital or professional committee service.
(2) Peer reviewed medical and health studies, literature, and textbooks. Although this isn’t absolutely necessary, on-point literature is helpful before courts.
(3) Rules and regulations from the Texas Medical Board or Board of Nursing.
(4) Practice guidelines from professional associations. I have frequently used such materials from groups such as the American College of Radiologists and the American Society of Anesthesiologists.
(5) Accreditation standards from organizations such as The Joint Commission or DNV Healthcare. Many courts have concluded that these do not set the standard of care; however, they’re still helpful. Plus, in my experience as a former hospital administrator, they absolutely set a target on the standard of care for hospital leaders.
The take-home message for injured patients and lawyers who don’t routinely practice in the complex area of medical malpractice is that the best odds for a Texas plaintiff to meet the legal standards is to place their case in the hands of experienced, top-rated and rated Texas medical malpractice lawyer.
