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The Benefits & Dangers of Expert Witnesses

The customary care standard in medical malpractice litigation is generally established through the testimony of physicians who are considered experts in the field relating to the specific malpractice case.[1] In general, expert testimony must establish that it is more probable than not that the defendant’s act of negligence was responsible for the resulting harm.[2] In Daubert v. Merrell Dow Pharmaceuticals Inc., the Supreme Court determined that an expert must rely on more than just their opinion to define customary care standards.[3] The Court held that expert testimonies must satisfy two additional requirements: (1) the evidence presented must be shown to constitute scientific knowledge, and (2) the evidence must be relevant to the case in question.[4]


The role of expert witnesses in defining the customary care standard is controversial. The Supreme Court’s “scientific validity” directive creates a dangerous legal loophole in which expert witnesses may cite to any scientific evidence regardless of custom. Plaintiffs could make a submissible case based on an expert testimony explaining the alternative courses of treatment that were available and were not prescribed. Without explicit standards, the expert can choose any scientifically based treatment with a superior risk to benefit ratio and testify as to why the course chosen by the defendant was unreasonable.[5]