Witnesses in Medical Malpractice Trials

Witnesses in medical malpractice trials fall into several different categories, and they serve different purposes in the trial. In general, a ‘witness’ is a person who provides testimony under oath to establish the facts in a legal case. Witnesses in a civil lawsuit can include fact (or lay) witnesses and expert witnesses.

Fact Witnesses or Lay Witnesses

A lay person in a legal context is any person who does not have professional or specialized knowledge in a matter. Persons who have direct knowledge of the facts of the case, but whose role is not a professional one are known as “fact witnesses,” or “lay witnesses.” These witnesses have direct knowledge of the facts relevant to the case. They can testify about what they personally saw, heard, or experienced. Their ability to offer opinions may be limited, as those often are reserved for expert witness testimony.

Fact witnesses may include:

• Eyewitnesses
• Family members
• Friends
• Other non-experts testifying as to facts in a case

Eyewitnesses are people who witnessed firsthand the incident as it occurred, literally with their own eyes. Think of a person who observes a car accident occur from the side of the road. Fact witnesses can also include family members of the injured person who are familiar with the events in question because of their ongoing relationship.

Family members who are called as witnesses may be able to establish facts, such as the impact of an injury on the person in their activities of daily living. This can be important testimony to prove pain, suffering, or other non-economic damages. Similarly, friends can be lay or fact witnesses who can help to illustrate the impact of the injury on the injured person’s ability to maintain their lifestyle as it was before their injury.

Secondhand Information or Hearsay

Generally, witnesses are expected to provide firsthand information. This means the information offered is based on something the witness personally saw, heard or experienced.  Hearsay, which is secondhand information, is often not admissible in court. However, there are exceptions, and some types of hearsay may be allowed. These exceptions are complicated even for some lawyers to understand so having an experienced medical malpractice attorney, like Wallace Wason, PLLC, can help you to make sure that all admissible testimony is considered by the jury.

Expert Witnesses

Expert witnesses have a specific role in medical malpractice cases, including dental malpractice and wrongful death cases which originate with malpractice. In most cases. Virginia law requires that a qualified medical expert testify regarding the standard of care. Expert witnesses also testify about the injury and ongoing consequences of the medical neglect or malpractice. They can also help to establish the damages accounting by establishing the type of future care or equipment that may be required.

Treating Health Care Providers

Treating health care providers can be both fact witnesses and expert witnesses, even if they become part of the case by virtue of their treatment and are not independently retained by a medical malpractice attorney to come into a case.

For example, a doctor or nurse could testify to the facts that a patient was treated, they saw a bone sticking out of the skin in his leg, and he was screaming in pain. Those are all unquestionably facts, no opinions required. But, that same doctor may also testify to opinions that can only come from someone with expert knowledge, such as that what they saw was caused by a specific medical diagnosis comminuted displaced fracture of the tibia and that the injured person was unlikely to fully recover.

The courts often have difficulty separating out the line between treating health care fact and opinion testimony. Sometimes the significant evidence is the fact that an opinion was formed by the doctor. Figuring out how to present the strongest case is where having an experienced medical malpractice attorney, like Wallace Wason, PLLC, can help you to make sure that all of the best evidence is considered by the jury.

Role of Witnesses

• Witnesses provide testimony under oath, meaning they swear to tell the truth, the whole truth, and nothing but the truth.
• They present their first-hand, personal observations, experiences, or expert opinions to the court or jury.
• Witnesses may be called by either party involved in the lawsuit (plaintiff or defendant) to support their respective positions.
• Their testimony can help establish or dispute key facts, clarify events, and provide context for the issues in dispute.

Witness Credibility

Witness credibility is essential. Judges and juries assess the reliability and truthfulness of witnesses. Factors that affect credibility include consistency in their statements, demeanor on the witness stand, and any potential biases or interests they may have in the case.

Witnesses are Key

Because of the laws regarding medical malpractice cases in Virginia, very few medical malpractice cases can go forward without an expert medical witness. In most instances. an expert must first certify the case before it can be served, and then, during litigation, the expert witness must describe the specific medical issues of the malpractice case.