Expert Witness in Medical Malpractice Claim May Testify Even if Board Certification is Expired, Court Holds

In a recent case, a man filed a medical malpractice claim for an allegedly negligent surgery after the procedure left him with a fractured ankle. The man broke his ankle while repairing his truck and had to undergo surgery as a result. Soon afterward, the man underwent an additional surgery, allegedly because the initial surgery failed to properly attach the fractured pieces. The patient filed a claim against the initial surgeon, alleging that the surgeon negligently performed the surgery and the post-surgical care.

Under that state’s law, expert witnesses are required to be board-certified to provide testimony in a medical malpractice claim. The plaintiff sought to present an expert witness who was board-certified at the time of the alleged malpractice. However, the expert witness’ certification had since expired, and the defendant argued that an expert witness must be board-certified at the time he testifies to be qualified. That state’s supreme court found that a witness’ board certification is based on the board certification status at the time of the alleged malpractice rather than at the time of testimony. Therefore, the testimony was permissible.

Expert Testimony in Medical Malpractice Cases

Medical malpractice claims arise when a patient receives negligent medical care. In general, the plaintiff has to show that the provider failed to conform to an established standard of care by providing expert testimony. The use of expert testimony is required because jurors normally are not skilled in the practice of medicine, and it usually is not clear to a layperson whether or not the professional breached the standard of care. Notwithstanding this requirement, expert testimony may not be required if the negligent conduct or treatment is so obvious that even a layperson can recognize it.

In Illinois, for an expert witness to testify on an issue, the witness’s opinion and methodology must have “gained general acceptance” in its field. The Illinois Code of Civil Procedure provides four standards for a court to apply to determine whether an expert witness is qualified on the standard of care in a medical malpractice case. Generally, a court will consider:

• Whether a witness is board-certified or board-eligible in the same specialties as the defendant and is familiar with the issue and treatment;
• Whether the witness has devoted 75% of his time to practicing medicine, teaching, or conducting research in regard to the care and treatment at issue;
• Whether the witness is licensed in the same profession as the defendant; and
• If the witness is not a specialist, whether he is sufficiently familiar with the standard of care.

Have You Received Negligent Medical Care?

If you have been injured and believe you may have received negligent medical care, you may have a medical malpractice claim. In order to prevail in a medical malpractice claim, you will have to show that the medical provider breached the standard of care. If you are successful, you may be entitled to compensation for costs including medical bills, out-of-pocket costs, lost income, and pain and suffering. The Chicago surgical error lawyers at Moll Law Group are available to advise individuals who have suffered from medical malpractice, including surgical errors. Call us at 312-462-1700 or fill out our online form to request a free consultation.

See More Posts:

Boy Killed in Skateboarding Accident Barred from Compensation Because He Assumed the Risks of the Activity, Illinois Injury Lawyer Blog, July 1, 2016.

Court Finds Nursing Home Waived Its Right to Arbitration Despite Signed Arbitration Clause, Illinois Injury Lawyer Blog, June 13, 2016.

Court Dismisses Case After Failure to Pay Filing Fee Within Statute of Limitations, Illinois Injury Lawyer Blog