gavel and stethoscope table

The Role of Expert Peer Review in Medical Malpractice Suits

When both sides have an expert witness, expert peer review of testimony can offer a clearer, more authoritative picture.


Medical malpractice cases often hinge on expert witness testimony, which is used to assess, analyze and verify key issues and bring clarity to complex debates about surgical procedures, hospital protocol and relevant scientific research. Twenty-eight U.S. states list requirements for filing an affidavit or certificate of merit to move forward with a medical liability and malpractice claim. Thirty-two states have established minimum qualifications for expert witnesses. But how do you know measure the quality of this testimony, when the issues are so technical and arcane?

Perhaps you’re trying to assess the viability of a potential claim to determine whether it’s worth your firm’s time and resources to pursue. Or maybe you represent a hospital, doctor or pharmaceutical company defending a suit that you believe is spurious. In either case, you need some way to vet witnesses and their testimony. Enter expert peer review. Services like JuriLytics help lawyers like you find and vet witnesses, using respected authorities, such as editors of scientific journals, to ask the important questions before you put anyone on the stand.

Burden of Proof

In medical malpractice claims, the plaintiff bears the burden of proof and must convince the jury that at least 51% of the evidence provided favors his or her side. Since both sides almost always put forward their own respective expert witnesses, the real plausibility test comes into play during cross-examination of witnesses. Using the pre-trial deposition provided by both sides, attorneys must come prepared with research guiding their questions and counterpoints.

Standard of Care

In a medical malpractice case, one of the underlying questions is: Was the standard of care breached? And if so, was it due to medical errors or negligence? Although these questions seek a particular standard, an expert should also acknowledge alternative standards that would still be acceptable. In terms of proving medical errors or negligence, expert witnesses should emphasize that an unexpected or undesired result does not, on its own, indicate evidence of negligence or medical errors.

Daubert Standard

In the Supreme Court's 1993 ruling on Daubert v Merrell Dow Pharmaceuticals, the court established that judges should act as the "gatekeepers" to verify the relevance and reliability of the expert witness testimony. To live up to this role, trial judges can turn to peer reviews of the expert testimony, tests of the theory used, the known or potential error rate of the theory, and the theory's general acceptance in the corresponding scientific community. 

Since medical malpractice cases are so complex and heavily contested, attorneys often need help to vet testimony. We created the JuriLytics solution because many attorneys (and judges) have been worried about the quality of the science presented in courtrooms in medmal cases and other matters. When this science is inconsistent or inaccurate, judges and juries are more likely to struggle and hand out unfair or inappropriate verdicts. Through our tested expert peer review process, we help lawyers like you enjoy a competitive advantage in medical malpractice cases by improving the quality of testimony. Explore our site for more details, or call or email the team for a consultation

Comments (0)

    Leave a comment