Don’t be surprised if soon there’s a supply chain shortage of expert witnesses for medical malpractice and other healthcare lawsuits.
The scarcity would come from an upswing in demand that coincides with a limited supply of allowable experts, who are constrained by a decades-old standard set by the U.S. Supreme Court.
On the demand side of the equation, from 2013 to 2023, malpractice verdicts of $10 million or more rose by more than two-thirds (67.7%), according to data from reinsurance company TransRe, as reported on Medscape.
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More than half those verdicts were for $25 million or more.
In a 2023 example, a Pennsylvania jury awarded $183 million in damages against the Hospital of the University of Pennsylvania for a child who suffered cerebral palsy, allegedly from a delayed cesarean section.
And in New York, a jury rendered a $120 million verdict against Westchester Medical Center in a failure to timely diagnose and treat a stroke victim.
Also from 2023 is the record $261 million verdict a Florida jury granted last year to a family accusing Johns Hopkins All Children’s Hospital in St. Petersburg of medical negligence and false imprisonment.
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Accordingly, the demand for the best expert witnesses will likely swell along with burgeoning awards. Which brings us to the supply side.
Enter three decades of after-shocks from Daubert v. Merrell Dow Pharmaceuticals, Inc. (1993). In Daubert, a mother alleged that a nausea medicine for morning sickness caused birth defects to her newborn.
Because the mother’s evidence was based on emerging research, the Daubert court in essence revised FRE (Federal Rules of Evidence) Rule 702, to include five clarifying factors, such as whether the pending expert testimony is justly supported by peer review, publication, and known error rate.
The Court’s intent was to bar so-called junk science from testimony, notably in speculative, contingency-fee civil cases clogging the courts. But critics have since decried the test as unfairly handicapping individual plaintiffs and favoring deep-pocket defendants such as pharmaceutical companies and medical device makers.
The upshot is that judges are thrust into the role of scientific arbiters, for which they generally lack the expertise. Additionally, critics say, in criminal cases, the standard favors prosecutors because judges are often veteran prosecutors and thus are more likely to admit prosecutorial than defense witnesses.
Among other criticisms is the reality that attorneys may make a Daubert motion to the court solely as a witness harassment technique and delaying tactic. Moreover, a Daubert hearing incurs additional time and costs, unfairly saddling less affluent parties going up against well-heeled adversaries and their large law firms.
It’s well accepted that healthcare lawsuits generally boil down to a battle of the experts, usually scientists and physicians. As jury awards rise, the value – and expense to litigants – of the most distinguished and credible authorities are certain to follow.
Editor’s Note: This article first appeared in the Healthcare Docket newsletter. Click here to subscribe and read the full newsletter.
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