Thursday, January 30, 2014


To comply with the applicable standard of care, a physician must exercise that degree of care, skill and learning that would be expected under similar circumstances of a reasonably prudent physician. 

In a medical malpractice case the court and jury learn what a reasonably prudent physician would do--that is what the standard of care is--by hearing testimony from expert witnesses--physicians.


Under normal circumstances, a medical malpractice case cannot be proven without the testimony of an expert witness.

One can wonder if a physician practicing in a small, remote community will find his care measured by expert witnesses from institutions like Mayo Clinic.  The answer is 'no'.  Roughly speaking, the physician is likely to be compared to other reasonably prudent physicians who are similar placed.

The important Shilkret case provides a thorough analysis of this issue and it can be found in an earlier post in this blog which is linked at Shilkret v. Annapolis.



In some cases expert testimony may not be required if the malpractice is so obvious that any reasonable lay person can recognize it without the aid of an expert.  The doctrine invoked in such cases is res ipsa loquitur or 'the thing speaks for itself;.

Here is a Washington State medical malpractice case that addresses res ipsa loquitur

Another post on this site goes into res ipsa loquitur in more detail.


Although the recent Zimmerman case in Florida was a criminal case the testimony of the medical experts was memorable.  

The State's (Prosecution) witness, Dr. Bao, gave a miserable performance on the stand.  His testimony in the first of three parts on You Tube can be seen here:  Testimony of Dr. Shiping Bao

The Defense witness, Dr. Di Maio, was superb:  Testimony of Dr. Vincent Di Maio  Dr. Di Maio was authoritative, communicated well to the jury, was not combative on cross examination, and could not be drawn into opinions on matters outside of his field.  He was interesting, convincing, and one wanted to listen to him.

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