Expert Witnesses in Medical Malpractice Suits Subjected to Ethics Complaints
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Medical malpractice is defined as the "failure of a physician, hospital, or employee of a hospital, in rendering services, to use the reasonable care, skill or knowledge ordinarily used under similar circumstances." NRS 41A.009 (2009). To prove medical malpractice, a plaintiff must first establish the applicable standard of care and then must prove that the alleged conduct of the health care provider deviated from that standard and legally caused the injuries complained of. Fernandez v. Admirand, 108 Nev. 963, 843 P.2d 354 (1992). As a general rule, a plaintiff must use expert testimony to establish medical malpractice. Jain v. McFarland, 109 Nev. 465, 851 P.2d 450 (1993).
Despite the importance and accepted use of expert testimony in medical malpractice actions, there appears to be a growing trend of national medical associations creating ethics complaint procedures meant to scrutinize experts' testimony. An article in Lawyers USA reported that plaintiff's experts feel they are being singled out and the growing number of ethics complaints may have the "chilling effect" of reducing the number of experts willing to testify in malpractice cases. In response to ethics complaints, some medical experts are filing lawsuits alleging witness intimidation, defamation, and interference with business contracts. According to John Vail, the plaintiff's attorney in a recent defamation case, doctors receive very little money for testifying as an expert witness but could be subject to upwards of $50,000 in costs to defend an ethics complaint. Some doctors, such as Vail's client, Dr. Charles Yancey, are fighting back and are winning.