Woman Allowed to Present Expert from Mexico in U.S. Medical Malpractice Case

In a recent case in front of a state appellate court, a woman filed a medical malpractice lawsuit after she was treated for a condition known as thoracic outlet syndrome. The illness caused her extreme pain around her shoulder and in her arm and also caused her numbness, swelling, and weakness. As a result, she was treated by a doctor who performed a surgery to try to ease the pain by removing one of her ribs. However, the woman suffered severe symptoms after the surgery, including pain whenever she moved her arm and difficulty swallowing food. The woman then sued the doctor for malpractice.

The defendant presented an expert who said that the doctor performed the surgery correctly and provided proper post-operative care. The expert also said that the woman’s symptoms after the surgery were a result of her original illness. To rebut this, the woman presented her own expert, who was a doctor in Mexico. The doctor had examined her about one year before she sought treatment from the defendant. Her expert stated that the defendant had destabilized the woman’s right sternoclavicular joint during the surgery or had disrupted the ligaments that hold it in place.

The defendant objected to the plaintiff’s expert witness, arguing that he was not familiar with the “standard of care” in the United States. The trial court agreed and dismissed the case. However, a court of appeals found that her expert witness, who was licensed to practice medicine in Mexico, was qualified to give an opinion in this case. Importantly, the defendant doctor did not suggest that the standard of care in Mexico was different from the standard of care in the United States. In addition, the Mexican doctor had performed over 500 orthopedic surgeries and around 10 to 12 thoracic outlet syndrome surgeries. He also personally examined the woman before and after her surgery. Thus, the court found that he was qualified to give his opinion, and the jurors were free to give it as much weight as they determined was appropriate.

The Standard of Care in Medical Malpractice Claims

Like any negligence claim, a medical malpractice claim requires proof of duty, breach, causation, and damages. In a medical malpractice case, to show there was a duty and a breach of that duty, it requires considering the relevant “standard of care.” That is, what is expected of the doctor (or other health care professional) in that situation? To prove that a doctor was negligent, the doctor’s conduct must have fallen below the relevant standard of care. For example, simply showing that there was a bad outcome is not sufficient proof that the doctor was negligent. A plaintiff must show that the doctor’s conduct, as compared to other similar health care professionals, was inadequate. Generally, expert testimony is required to establish the standard of care and to show that the defendant’s conduct fell below that standard.

Normally, an expert must come from the same area of expertise as the defendant and must be familiar with the standard of care in that area. According to the Illinois Code of Civil Procedure, this means that an expert must demonstrate “a sufficient familiarity with the standard of care practiced” in Illinois. It is often called the “locality rule.” However, this can be relaxed in different circumstances, depending on the area and the issue at hand.

Have You Been Injured by a Health Care Professional?

If you have been injured by a doctor or another health care professional, you may be able to recover compensation through a medical malpractice claim. The Chicago attorneys at Moll Law Group can advise individuals who have suffered from a surgical error, a misdiagnosis, a birth injury, or another type of medical malpractice. Experts are often critical in a medical malpractice case, and you need to have someone representing you who knows how to adequately present your case. Call us at 312-462-1700 or contact us through our online form to set up a free consultation.

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Defendant Allowed to Reopen Case After Filing Response Seven Months Late, Illinois Injury Lawyer Blog, September 16, 2016.

Court Hold Adults Who Serve Alcohol to Minors May Be Liable for Related Injuries, Illinois Injury Lawyer Blog, August 9, 2016.