Earlier this month, a federal appellate court issued a written opinion in a medical malpractice case, reversing the jury’s verdict in favor of the defendant and ordering the lower court to conduct a previously overlooked analysis. In the case, Hall v. Flannery, the court reversed the jury’s verdict based on the fact that the defendant’s expert witness did not possess the proper training and experience to offer expert testimony on the subject on which he testified.
The plaintiff’s 17-year-old child passed away three days after having a surgery to repair a skull injury she sustained as a child. The exact circumstances of the girl’s death were uncertain. However, the medical examiner determined that a seizure was the likely cause of death. After her daughter’s death, the plaintiff filed a medical malpractice lawsuit against the doctor who performed the surgery, claiming that her daughter should have been prescribed anti-seizure medication prior to being discharged from the hospital.
The defendant notified the court that several expert witnesses would testify on his behalf. In response to the designation of the defendant’s witnesses, the plaintiff filed a motion asking the court to limit the experts’ testimony. Specifically, the plaintiff wanted to prevent the experts from testifying as to the cause of death. The plaintiff claimed that the experts did not have sufficient qualifications to make that determination.
The court granted each of the plaintiff’s motions in part, but at trial, the experts were able to get in some testimony about the cause of death. The plaintiff failed to object to the testimony of two of the experts but did object to the third expert’s characterization of the plaintiff’s daughter’s death. The trial court admitted all contested testimony, and the jury returned a verdict in favor of the defense. The plaintiff appealed.
On appeal, the court noted initially that the two experts to whose testimony the plaintiff did not object at trial cannot be challenged on appeal. The court explained that issues that are not raised at trial cannot be asserted on appeal. Regarding the third expert, the appellate court agreed that a sufficient objection was made. Furthermore, the court held that the trial judge failed to adequately review the expert’s qualifications to determine if the witness should have been permitted to testify as an expert. Since the necessary analysis was not performed by the trial judge, the court remanded the case back to the lower court.
Have You Been a Victim of Medical Malpractice?
If you or a loved one has recently been a victim of what you believe to be medical malpractice, you may be entitled to monetary compensation. Expert witnesses – both for the plaintiff and for the defendant – are critical to a personal injury lawsuit and should be closely scrutinized. The skilled personal injury attorneys at the Maryland, Virginia, and Washington, D.C. law firm of Lebowitz & Mzhen, LLC have decades of experience helping their clients navigate the complexities of medical malpractice law and assisting them in obtaining qualified, reliable, and credible expert witnesses. Call 410-654-3600 today to set up a free consultation.
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Court Holds Plaintiff Does Not Need to Release Unused Expert Witness’ Report, Washington DC Injury Lawyer Blog, November 15, 2016
Trampoline Park’s Contract Mandating Arbitration Found to Be Unenforceable, Washington DC Injury Lawyer Blog, November 2, 2016