A medical expert must first be determined to be qualified to testify before they can give their opinions. A judge will determine whether or not their opinions are admissible. The medical expert must explain how they arrive at their opinion on how a doctors conduct has not been up to standard. This process is all done to make sure unqualified medical experts do not step into the court room and unreliable opinions are kept out of the court room. In order for a medical expert to give testimony they must be qualified, the testimony must be of assistance to the trier of fact and the expert’s testimony must be reliable.
“The medical expert has the task of testifying ‘as to how and why [she]/he arrives at an opinion that a defendant physician’s conduct has been substandard.’” The trial court is considered the gatekeeper to keep out unqualified experts and opinions that are speculative or not reliable. This ensures that both sides are given a fair trial with only reliable opinions from qualified experts.
Rule 11-702 NMRA sets out the three prerequisites for the admission of expert testimony: “(1) that the expert be qualified; (2) that the testimony be of assistance to the trier of fact; and (3) that the expert’s testimony be about scientific, technical, or other specialized knowledge with a reliable basis.”
The first inquiry looks at whether the expert is qualified based her or his training, skill, education, and experience. As discussed above, the expert must be a specialist in the subject matter or be qualified and competent to testify about the subject matter to qualify as an expert in a medical malpractice case.
The second inquiry is how the testimony will help the jury (or fact finder):
The ‘pertinent inquiry’ for determining whether expert testimony will assist the trier of fact under the second requirement must focus on the proof of reliability of the scientific technique or method upon which the expert testimony is premised. A court must determine whether the proffered expert testimony is sufficiently tied to the facts of the case that it will aid the jury in resolving the factual dispute. [T]he scientific methodology [must] ‘fit’ the facts of the case and thereby prove what it purports to prove. The inquiry is a flexible one and its focus must be solely on principles and methodology, not on the conclusions that they generate. As the United States Supreme Court emphasized, “it would be unreasonable to conclude that the subject of scientific testimony must be ‘known’ to a certainty; arguably, there are no certainties in science. Rather, “the scientific procedure which supports the testimony [must be] capable of supporting opinions based upon a reasonable probability rather than conjecture.
New Mexico’s courts consider five factors in considering the reliability of an expert’s testimony:
(1) whether a theory or technique can be (and has been) tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error in using a particular scientific technique and the existence and maintenance of standards controlling the technique’s operation; (4) whether the theory or technique has been generally accepted in the particular scientific field.
Additionally, New Mexico has a fifth factor “whether the scientific technique . . . is capable of supporting opinions based upon reasonable probability rather than conjecture.”
Further, in cases where the “expert testimony is based on knowledge, training, or experience of the witness the Daubert-Alberico factors do not apply.” “[W]hen testing the reliability of nonscientific expert testimony, rather than testing an expert’s scientific methodology as required under Daubert and Alberico, the court must evaluate a non-scientific expert’s personal knowledge and experience to determine whether the expert’s conclusions on a given subject may be trusted.”
The bottom line is it is critical to have a well-qualified medical expert who provides reliable opinions based on the facts of the case in your corner. If you want to make sure a well-qualified medical expert is on your side in your medical malpractice case give us a call. We will work with your case until a resolution is there and will make sure you are well represented. We can be reached at (505) 242-7200 Monday through Friday.
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