Medical malpractice. Requirements Texas Courts Impose for an Expert in Medical Malpractice - Research Paper Example

? What Requirements Do Texas Courts Impose for Someone to Be an Expert in Medical Malpractice? Grade (5th, March. 2013) What Requirements Do Texas Courts Impose for Someone to Be an Expert in Medical Malpractice? Introduction Medical malpractice refers to the professional negligence to act or omit to act by a physician, where such acts or omissions fall below the required standards, leading to the death or injury of a patient (Baker, 2010). This discussion investigates the commitment of the Texas courts to improve the reliability of medical malpractice experts as sources of vital expert information in medical malpractice cases, with a view to understanding the required qualifications for such experts. Justification Cases involving medical malpractices are some of the most complex ones since the admissibility and the fact finding activities regarding a case are not based on a current occurrence but on a past occurrence that could have caused injury to the patient. This requires that a patient present an expert testimony, which must satisfy the court that the testimony will assist the court in its fact finding mission regarding the case, and that such opinion must be supported by the witness testimony if the case is to be held as valid (Jasper, 2010). This calls upon the experts in the medical malpractice cases to be fully qualified so that they can help the court establish the truth of the matter regarding the case since they are the most reliable source of expertise information in such cases. To enhance the capacity of the medical malpractice experts to help the court establish the truth regarding the failure of a physician to adhere to the required standards of care for patients, the State of Texas has provided certain qualifications, which the experts must meet. Definition of Terms Medical malpractice means professional negligence by a physician by way of action or omission that causes injury or death to a patient. Expert means someone widely recognized as a reliable source of technique or skill Review of Literature For an individual to qualify as an expert in a medical malpractice case, the individual must be knowledgeable and conversant with the procedures, methods and treatments applicable in the area where the physician, who is the defendant in the case, operates (Baker, 2010). This qualification is essential since it allows the expert opinion granted by the individual to be based on the acceptable standards, procedures and treatment methods, as there are different medical practices for different regions. If an expert who is not conversant with the medical standards and procedures of the area is enlisted to provide an expert opinion, he/she will most likely base the assessment of the procedures and treatment methods on the standards of the area he/she is conversant with, thus giving an expert opinion that might mislead the court since the same standards could not be applicable in the region in question (Jasper, 2010). Thus, the courts in Texas allow medical malpractices experts to issue a statement of opinion if they are familiar with the acceptable standards of operation in the region. A clear understanding of the acceptable operation standards in a region allows the expert to be guided in giving a fair and adequate opinion regarding the level of act or omission of the physician defendant, which translates to liability (Roach, 2006). The other qualification for an expert in the medical malpractice case is specialization in the defendant’s field (Roach, 2006). While there was a tendency of allowing experts to give an opinion regarding the knowledge they have in the standards of operations of a certain field, it is certainly not possible for an expert to give a fair, adequate and valid expert opinion if he/she has not specialized in the field of the defendant. Additionally, it would not be possible either to give an expert opinion that is credible if the medical malpractice expert has no experience in performing the operations and techniques in respect of which the physician defendant is alleged to have faulted (Baker, 2010). Therefore, the courts in Texas require that an expert in the medical malpractice should have specialized in the field of the physician defendant and also involved in undertaking the same operations and treatment – an aspect that places the individual in a better position to give an adequate and credible opinion. Experience is yet another requirement that medical malpractice experts are required to possess by the Texas courts. Having experience in the field and operations of the physician defendant is essential to ensure that the expert opinion given is not merely based on knowledge but on the hands-on practical experience of the individual testifying (Iyer, Levin, Shea, & Ashton, 2006). There is a difference between knowledge and experience. According to the Texas courts, knowledge places an individual in a position where he/she can judge a situation, but experience places the individual in a better position to be able to solve the issue through various ways that are applicable. Therefore, having the relevant experience is necessary since it places the medical malpractice expert at the same level as the physician defendant, thus allowing him/her to judge the occurrence based on practical applications, as opposed to mere ideas (Sage & Kersh, 2008). It is in the light of this that the courts have ruled that any individual who acts as an expert in medical malpractice cases in Texas must have sufficient knowledge of the standards of operations, treatments and procedure, as well as practical experience of engaging in the same or similar procedure (Baker, 2010). Active practice is yet another requirement that the courts in Texas have placed on individuals acting as experts in medical malpractice cases. Active practitioners are required to give an expert opinion before the court since they will be addressing an issue that they have been dealing with in their daily affairs (Jasper, 2010). This requirement is valid because while knowledge and experience place an individual in the position of fully understanding the patient situation relative to the medical attention granted by the physician, active and routine practicing is also essential since the procedures and techniques of operations keep changing, especially with the introduction of new technologies and equipment. This serves to ensure that an opinion given by an expert in a medical malpractice case is up to date and practically encompasses all the new standards and procedures of medical operation (Iyer, Levin, Shea, & Ashton, 2006). While an individual might have heard the relevant experience in the physician defendant field of specialization, he/she could have stayed for a longer period before practicing the operations, a period during which many changes could have occurred in the area of medical practice. Therefore, an active practitioner is required by the Texas courts to be an expert in a medical malpractice case since such individuals have the benefits of both routine hands-on experience and academic update in the field of specialization. The other requirement for the qualification of an expert in a medical malpractice case, according to the Texas courts, is that the expert should be of sound mind and well informed about the nature of the errors that occur in a certain field of medical specialization. Error conscious individuals are deemed to be in a position to give an adequately guided expert opinion since the individuals can manage to compare the nature of the error that was committed by the physician defendant, with the formal and acknowledged rates of error for the field of medical specialization (Iyer, Levin, Shea, & Ashton, 2006). This enables the individual acting as an expert in a medical malpractice case to distinguish between an act of negligence on the side of the physician defendant, and an occurrence of a normal error range, as acknowledged and formalized in the field of medical specialization and operations. Data Collection Data collection is done from various information resource materials while elaborating the requirements for an expert in a medical malpractice case, as provided for by the Texas courts. Qualitative data is collected to inform the quest for information into the requirements of the Texas courts, regarding medical malpractices experts. Conclusion In conclusion, the above requirements have been placed by the Texas courts to guide the provision of an adequately credible expert opinion since the courts highly depend on the expert opinion to derive the facts surrounding any medical malpractice case. Additionally, by raising the bar of expert qualifications higher, the courts guard against chances of delivering injustice to the parties involved in the case, since a credible and factual expert opinion works towards informing a just verdict. References Baker, T. (2010). The medical malpractice myth. Sydney, N. S. W.: RHYW. Iyer, P. W., Levin, B. J., Shea, M. A., & Ashton, K. (2006). Medical legal aspects of medical records. Tucson, AZ: Lawyers & Judges Pub. Co. Jasper, M. C. (2010).The law of medical malpractice (2nd ed.). Dobbs Ferry, N.Y.: Oceana Publications. Roach, W. H. (2006). Medical records and the law. Sudbury, Mass: Jones and Bartlett Publishers. Sage, W. M., & Kersh, R. (2008).Medical malpractice and the U.S. health care system. Cambridge, England: Cambridge University Press. Read More