Imagine you went through your doctor’s recommended surgery, which was supposed to make you feel better. Unfortunately, a few weeks later, you are diagnosed with new complications that have left you in pain and unable to work.
You suspect something went wrong in that initial surgery because of the surgeon’s mistake. You want to hold that surgeon and the medical center or hospital accountable, but then you hear that Virginia law requires a doctor to testify in medical malpractice cases.
Does that mean your own doctor—the one you think made a mistake—will need to testify? Or if not, how will you find a doctor willing to testify on your behalf?
At Shapiro, Washburn & Sharp, we’ve helped many clients manage this exact situation. Our firm has won verdicts and settlements that total more than $100 million, including a $1.6 million jury verdict in a Virginia Beach medical malpractice case.
It’s true that in Virginia, before your lawyer can even file a medical malpractice claim, they have to find another doctor (not involved in your care) who will be willing to review your circumstances and certify that your medical provider failed to meet the standard of care.
Finding that doctor can be tricky, but our team has the experience and resources to make it happen. We’ll explain more below about what Virginia law requires, how we find these medical experts, and why having the right one can make or break your case. If you or a loved one suffered from an injury because of medical malpractice, please call our Virginia Beach medical malpractice lawyers today at 833-997-1774 for a free consultation.
What Does Virginia Law Require in Medical Malpractice Cases?
Medical malpractice cases can be complicated, as they usually involve complicated medical facts that most regular people—including insurance adjusters, judges, and those serving on juries—don’t understand. That’s why the law requires expert medical testimony to provide weight behind the claim that a healthcare provider breached the accepted standard of care.
Under Virginia Code 8.01-20.1, before a lawyer in Virginia can even file a medical malpractice claim, they must obtain a written certification from an appropriately qualified healthcare provider. In that certification, the expert doctor must state that they believe, based on a review of the records, that your medical provider did not act in accordance with the standard of care, and that this failure likely caused your injuries. In other words, they’re saying in the certification that they believe your case has merit. Without this certification, the court can throw out your case.
“Standard of care” means the level of skill, judgment, and treatment that a reasonably competent healthcare provider of similar training would have provided in the same situation. It’s basically the benchmark against which a doctor’s actions are measured.
Let’s say that a patient comes into the emergency room complaining of chest pain. The standard of care may require the doctor to order certain tests, such as an EKG or blood work, to check for a potential heart attack. If another doctor with similar training and expertise in a similar situation would have ordered those tests and your doctor did not, that could be a breach of the standard of care.
Virginia law also requires this healthcare provider to have certain qualifications. They must have expert knowledge of their specialty field, possess a clinic in that field or a related field within a year of the alleged negligent act, and be familiar with the Virginia standard of care. These requirements help ensure that the expert witness has current, relevant experience in the medical field at issue.
Where Do You Find These Medical Experts?
Finding just the right doctor to certify your claim—and perhaps testify later in court—is often tricky. Most doctors don’t really want to testify against other doctors, especially if they are colleagues in the same hospital or local medical community. That’s where an experienced law firm can be really helpful.
At Shapiro, Washburn & Sharp, we maintain a network of trusted medical experts in many specialties both in and out of state. If we don’t already have a qualified doctor that we know in the field needed for your case, we know where to look. Sometimes, we find that the best experts come from outside of Virginia, as they may be more likely to conduct an unbiased review.
Finding a new medical expert involves careful research and vetting. We may review published research and medical literature related to the specific medical issue at hand to find compelling expert witnesses, or check medical databases and referral services.
We will review the doctor’s credentials, make sure they have real-world experience in the same field as the defendant doctor, and confirm that they understand how to explain complex medical concepts in clear, everyday language.
How Do Law Firms Use Medical Experts In Court?
Once we have identified the right medical expert, we will first have them sign a certification so we can proceed with your claim. That certification can be used not only to get the case rolling, but also when negotiating with the insurance companies. If the opposing insurance company believes our expert is credible and their report is strong, that may be enough to encourage settlement talks without additional testimony.
In more contested cases, however, particularly if the other side also has a strong medical expert, they may push to take your expert’s deposition before deciding whether to settle or go to trial. A deposition is sworn testimony taken before trial, and means that the expert doctor will need to present their conclusions to the defense team. At this point, your attorney may call on the same expert who certified the case, or on another one they feel would be more persuasive and convincing.
If your case goes all the way to trial, you may need medical experts to testify on your behalf. Their job is to walk the judge and jurors through what should have happened, what actually happened, and how that caused your injuries. It’s likely that the other side will also have an expert who will argue that the treating doctor did nothing wrong, so it’s critical that your expert has a stronger argument.
When it comes down to it, medical malpractice cases often turn into a battle of the experts. The side with the more credible, better-prepared, and more persuasive doctor (or doctors) will have a significant advantage. That’s why at Shapiro, Washburn & Sharp, we focus on finding not just a qualified doctor, but one who can explain the truth in plain terms.
How a Virginia Beach Medical Malpractice Attorney Can Help
Medical malpractice cases are some of the most challenging personal injury claims to win. Shapiro, Washburn & Sharp has been representing people hurt in medical malpractice and other accidents for decades, and we are rated as a “Best Law Firm” by U.S. News.
Our team brings extensive experience to every medical malpractice case we handle. If you believe you’ve been the victim of medical malpractice, contact us right away. We handle every aspect of expert witness coordination, as we did for our client who passed away because of a medical mistake. We helped negotiate a $1.3 million settlement on behalf of her beneficiaries.
We have several offices available for your convenience in Virginia Beach, Norfolk, Portsmouth, Suffolk, Hampton, and Chesapeake.
RELATED CONTENT
An experienced personal injury attorney with dual licensure in Virginia and North Carolina, Eric Washburn received a B.B.A. in Finance from James Madison University—initially worked in the information technology field before obtaining his law degree from Thomas M. Cooley Law School in Lansing, Michigan. Once an Assistant Commonwealth’s Attorney in Danville, Va., Eric has been recognized by Super Lawyers Magazine as a “Rising Star” Super Lawyer in Virginia since 2014.
