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Expert Testimony in Medical Malpractice Cases – Surgical Error

All civil lawsuits involving “negligence” require a plaintiff to show the same general facts: that a duty was owed, breached by improper conduct, and that the breach caused harm. In most cases the “breach” element of the claim is the main point of contention. This is just another way of asking: Did the defendant act unreasonably?

In many cases, the facts are such that a judge or jury can easily determine if unreasonable conduct took place. For example, in a car accident case, if one driver ran a red light or failed to stop at a stop sign, then they breached standards of care.

Medical malpractice cases share the same general elements. However, with professional negligence claims, like those against a doctor or other medical specialist, it is often harder to explain the “breach” element. That is because the ordinary juror or even judge, is not acutely familiar with what is or is not reasonable in a course of medical care. That is where experts come in. Expert witnesses are medical professionals who explain whether a defendant’s conduct was reasonable or not. A judge or jury is then only tasked with evaluating whether they believe the expert’s opinion–or evaluate between two different experts.

Robotic Hysterectomy Example
The Expert Institute shared a helpful general summary of a common medical malpractice lawsuit fact pattern and question posed to an expert. In the sample case, a woman underwent a hysterectomy. She had a previous surgery (a colectomy) which resulted in complications. As a result her OBGYN originally proposed traditional methods be used for her hysterectomy. The alternative–a laparoscopic surgery–may expose her to higher levels of complications. However, the OBGYN to which she was referred ended up performing the operation while using a robotic machine–known as Da Vinci. Unfortunately, during that procedure, the patient’s bowel was perforated. This led to severe pain, peritonitis, and sepsis.

In a subsequent medical malpractice trial, an expert witness was questioned about this chain of events. The expert was asked a critical question that went to the heart of potential negligence on the part of the OBGYN: “What are the complications of robotic surgery over traditional approaches?”

The expert explained how laparoscopic surgeries and robotic surgeries are both minimally invasive–which is a positive. But while laparoscopic surgeries usually require much training before use, surgeons with far less specific training on the device are conducting robotic surgeries. In addition, robotic surgeries, like those involving the Da Vinci, usually come with “increased risk of vaginal cuff dehiscence.” Most notably for this case, robotic surgeries are also known to present higher risks for those with previous abdominal surgeries. As a result, a traditional laparotomy would have been a safer surgical method.

As you can see in this case, the expert explained processes that revealed negligence in the choice of operation itself. This is interesting, because it does not even relate directly to the bowel perforation which ultimately resulted. In other words, when explaining reasonable conduct, negligence of a different form may be revealed separate from that which may seem most obvious by a quick reading of the facts of the case.

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