Legal Question in Medical Malpractice in California
Time of the essence. Expert Witnesses Required for Med Mal trial to go forward?
We no longer have our attorney in a med mal case. If the plaintiff goes to trial in pro per, and experts are not present for the plaintiff, can defense counsel move to end the trial on that basis and will they automatically be successful? Is there a CCP you can refer me to that specifies this?
Who is considered an expert in a med mal case? Could a health/medical writer qualify, as well as a doctor? Can studies be presented, which back up the case, without the author of the study being present?
Thanks much.
3 Answers from Attorneys
Re: Time of the essence. Expert Witnesses Required for Med Mal trial to go forwa
I don't know why you no longer have your attorney, but proceeding without one in a medical malpractice case all but assures that you will lose the case. The attorney for the defense (I spent 6 years exclusively trying medical malpractice cases for the defense) is skilled at cross-examination of experts, rules of evidence, the law regarding the liability of health care providers, jury selection for such cases, teaching a jury what it needs to know to evaluate conflicting testimony from experts, etc.
In answer to your question, you MUST have expert testimony to testify on issues of professional negligence and causation. As a practical matter ONLY someone with the same qualifications of the defendant or greater qualifications will do.
If you have a viable case, a qualified med mal lawyer will take over you case, even at this point. Attorney representation is purely on a contingency basis and is governed by statute.
If you want me to take a look at your case, call me as soon as possible. I check my messages during the holiday weekend and other weekends as well. Leave a message. Identify yourself as the person who posted this question, and I'll get right back to you.
Hope this was of some help.
Re: Time of the essence. Expert Witnesses Required for Med Mal trial to go forwa
99% of the time you will require expert testimony to avoid nonsuit at trial of a medical malpractice action. In fact, usually, defense counsel will file a motion for summary judgment to be heard prior to trial to determine if you have expert testimony in support of your case.
A medical "writer," without an M.D., will not be sufficiently qualified to provide expert testimony. "Studies" cannot be presented as expert testimony.
How much time is left before trial of the action? Also, why did your attorney substitute out of the case? If he/she was unable to locate an expert who would substantiate that the care and treatment provided was not within the standard of care, this may be a very good indication of your case. If you were to provide information concerning the trial date, why your attorney substituted out and what type of medical issues are involved, the attorneys on this board will be able to provide faster and more complete answers for you.
Re: Time of the essence. Expert Witnesses Required for Med Mal trial to go forwa
If the attorney makes a motion for summary judgment saying no malpractice and you have no expert to rebutt this unless this the rare case of malpractice that cannot happen without malpractice.
Bottom line: you need an expert and an attorney.
JOEL SELIK
www.4thelaw.com
800-894-2889
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