Did Dr. Cutter commit malpractice? Wasn’t there a rule that should have governed Dr. Cutter’s decision to stop the operation or to proceed?
Unfortunately, medicine isn’t simple, and every situation presents a different set of problems. If doctors tried to fit every patient into a set of rules, lives would be lost. Therefore, medicine doesn’t have these hard and fast rules. Instead, in order to determine what should have happened during Mrs. Doe’s operation, the law requires us to rely upon experts witnesses. Expert witnesses in medical malpractice cases are usually specialists who have been been practicing for a significant time. They are the doctors who have “seen and done it all”.
THE EXPERT WITNESS
In our example, we would likely seek out a surgeon who specializes in liver cancer. For purposes of our example, let’s call our expert surgeon Dr. Wellby. Dr. Wellby has been a practicing surgeon for over 25 years. She has written textbook chapters on the practice of liver surgery. She has taught surgery to medical students and surgical residents in hospitals. She has successfully operated on large liver tumors, like the one Mrs. Doe had, many times.
We would ask Dr. Wellby to review the facts of Mrs. Doe’s case and analyze the situation based upon her training and experience. She would then decide if Dr. Cutter acted like a reasonable surgeon would have under the circumstances.
Notice that Dr. Wellby would not analyze the case against what she would have done for Mrs. Doe. What Dr. Wellby would have done is not the legal standard. Dr. Wellby may be the best surgeon in the world, and it may be because she does things a bit differently than other surgeons. However, she is only allowed to compare Dr. Cutter’s actions to those that her profession expects of the average reasonable surgeon.
Because everyone is entitled to his/her own opinion, different experts will have different opinions. Some surgeons, like Dr. Wellby, will opine the standard of care required Dr. Cutter to abort the operation, and discuss the new findings with Mrs. Doe once she was awake and stable. Expert surgeons hired by Dr. Cutter will most likely opine the standard of care allowed Dr. Cutter to proceed with the operation if, in his judgment, it was the correct thing to do. Both sides will usually have very good arguments for why their opinion is the right one.
So, which expert is correct? Was Dr. Cutter supposed to stop the operation? Was it “reasonable” for him to proceed? These questions will only be answered when the case goes to trial, and they will be answered by the jury.
A jury is a group of citizens from the local community who are asked to decide questions put to them by the parties in a lawsuit. They jury makes its decision based upon the evidence presented at the trial. In our example, if the jury, based on all of the evidence, believes Dr. Wellby, then Dr. Cutter committed malpractice and he is legally responsible for Mrs. Doe’s death. If the jury does not believe Dr. Wellby, then Dr. Cutter did not commit malpractice and he is not responsible for her death.
A GOOD LAWYER
As you can see, whether or not Dr. Cutter will be held accountable for Mrs. Doe’s death really comes down to a battle of opinions. Therefore, the Doe family’s chance of success is critically dependent upon the selection of her expert witness, and her lawyer’s ability to present the case to the jury clearly, concisely, and in a way that motivates the jury to hold Dr. Cutter accountable.