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In any medical malpractice action, the key issue is: Did the treating medical professional breach the standard of care, thereby causing an injury to the Plaintiff?  The only way to find out the answer to this question is to ask an attorney…who likely doesn't know the answer.  Attorneys are not doctors and, therefore, they do not know the standard of care in most medical situations.  There are, of course, extreme examples such as a physician amputating the wrong arm or leg; however, 99% of the time, the standard of care is unknown to both the client and attorney.  So why bother asking someone a question that they don’t know the answer to?  Because a medical malpractice attorney can find out the answer by seeking the expert opinion of the appropriate medical professionals.    

In Georgia, like most states, Courts require that a Plaintiff attach the affidavit of an expert to any claim for medical malpractice.  If a Plaintiff files a Complaint without the Affidavit, the case will be dismissed, even if it seems as obvious as the amputation example above.  Georgia law is very specific with regard to which medical professionals are fit to testify in any given case.  For example, a thoracic surgeon likely cannot testify in a case involving podiatry and vice versa.  If your attorney chooses an expert that is not fit to testify, your case will be dismissed.  Accordingly, it is very important to find the right attorney…who can, in turn, find the right expert.  

Choosing an expert can be the single most important task in any medical malpractice action.  First, the expert acts as a gatekeeper.  A good expert will be forthcoming with regard to whether a breach has occurred.  Most attorneys can probably pay for any opinion that they want; however, using an expert that will say whatever you want is not as good as it sounds.  You don’t want to spend the money to litigate a case that you will ultimately lose.  If you don’t have a case you can win, it is best to know up front and save yourself the time and expense of litigation.

Second, medical malpractice cases often end up as a “battle of the experts”.  Generally speaking, medical malpractice trials often boil down to whose expert is more believable to the jury.  Accordingly, you will want to have a very well-credentialed expert to testify in the event that your case goes to trial.  For this reason, it is often advisable to use an expert that both practices in the field and holds a teaching position.  All other things being equal, it is more likely that a jury will side with the Head of Podiatry at Duke than with Frank, the podiatrist with an office next door to Pizza Hut at the strip mall down the street.  

The right expert can be difficult to find, particularly for Plaintiffs because doctors are often reluctant to testify against another doctor.  Thus, if you think that you may have a medical malpractice claim, you need to ask a medical malpractice attorney sooner, rather than later…even though they don’t know the answer.