Rise in malpractice lawsuits brings deficit in available doctor expert witnesses
Don’t be surprised if soon there’s a supply chain shortage of doctor expert witnesses for medical malpractice lawsuits.
The scarcity would come from an upswing in demand coincidental to a decreasing supply of allowable experts under a decades-old standard set by the U.S. Supreme Court.
Expert witness demand rises with rise in malpractice verdicts
On the demand side of the equation, from 2013 to 2023, malpractice verdicts of $10 million or more rose by more than two-thirds (67.7%), according to data from reinsurance company TransRe as reported on Medscape.
More than half those verdicts were for $25 million or more. One recent example is the record $261 million verdict a Florida jury granted last year to a family that Johns Hopkins All Children’s Hospital in St. Petersburg accused of abusing their daughter, leading to the mother’s suicide.
In another 2023 example, a Pennsylvania jury awarded $183 million in damages against the Hospital of the University of Pennsylvania for a child who suffered cerebral palsy, allegedly from a delayed cesarean section.
And in New York, a jury rendered a $120 million verdict against Westchester Medical Center in a failure to timely diagnose and treat a stroke victim.
Accordingly, the demand for the best expert witnesses will likely swell along with burgeoning awards. Which brings us to the supply side.
Enter three decades of after-shocks from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). In Daubert, a mother alleged that a nausea medicine for morning sickness caused birth defects to her newborn.
Because the mother’s evidence was based on emerging research, the Daubert court in essence revised FRE (Federal Rules of Evidence) Rule 702, to include five clarifying factors, such as whether the pending expert testimony is justly supported by peer review, publication, and known error rate.
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The intent to bar “junk science” impacts supply of medical expert witnesses
The Court’s intent was to bar so-called “junk science” from testimony, notably in speculative, contingency-fee civil cases clogging the courts. But critics since have said the test unfairly handicaps individual plaintiffs and favors deep-pocket defendants such as pharmaceutical companies and medical device makers.
The upshot is that judges are thrust into the role of scientific arbiters, for which they generally lack the expertise. Additionally, critics say, in criminal cases, the standard favors prosecutors because judges are often veteran prosecutors and thus are more likely to admit prosecutorial than defense witnesses.
Harassment of doctor expert witnesses
Among other criticisms is the reality that attorneys may make a Daubert motion to the court solely as a witness harassment technique and delaying tactic. Moreover, a Daubert hearing incurs additional time and costs, unfairly saddling less affluent parties going up against well-healed adversaries and their large law firms.
It’s well accepted that medical malpractice cases generally boil down to a battle of the experts, typically scientists and physicians. As jury awards rise, the value – and expense to litigants – of the most distinguished and credible authorities are certain to follow.
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