Most medical malpractice cases in West Virginia and elsewhere are won or lost on the issue of whether the defendant was negligent in treating the patient. This means that the defendant is accused of performing at a substandard level of care recognized for health care providers in the same specialty and under the same or similar circumstances. To win the medical malpractice case at trial or with a settlement prior to trial, the plaintiff must also show that he or she was injured directly and proximately by the negligence of the defendant.
How do the courts determine the applicable standard of care for the defendant health care provider under the circumstances? That critical task in the malpractice claim is performed by the medical expert. The expert must be qualified to testify on the subject matter at issue in the case.
There is a preliminary determination of the expert witness's qualifications. If the expert is declared qualified by the trial court, he or she will then testify before the jury. In cases that are settled prior to trial, the expert will have submitted one or more reports that are sent to the defendant's counsel for evaluation.
The defendant can compel the expert to testify in an oral deposition prior to trial. The strength of the pretrial testimony sometimes sets the stage for serious settlement talks between the respective attorneys. However, it is not only the plaintiff who presents expert testimony. The defense also recruits experts to counter the opinions of the plaintiff's expert.
Some observers may be surprised to see expert medical witnesses taking opposing views on the same issue. This tends to foster the idea that nothing is clear-cut and that each side had created its own version of reality. In fact, it is the jury's duty to hear all the expert testimony and decide which is the most believable and more likely to be true and accurate. This format for the presentation of expert witness testimony is applied generally in West Virginia and all other jurisdictions in a medical malpractice case.
Source: huffingtonpost.com, "What Can An Expert Say?", Darryl S. Welman, July 24, 2017