Is it required to have a medical expert to file a medical malpractice lawsuit?

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Is it required to have a medical expert to file a medical malpractice lawsuit?

My son was a premature twin who had surgery at 3 months old. The doctor put a feeding tube in through his stomach. He was later released and was doing well. The tube came out a month after the surgery and the PA-C reinserted it into the small intestine instead of the stomach. The next day he died, do to sepsis, according to the autopsy. Our attorney is now saying that she is having trouble finding a medical expert to agree that the doctor did something wrong. She is close to pulling out of the case. So now I wonder do we really have to have an expert on our side? What else can I do?

Asked on January 27, 2011 under Malpractice Law, Oklahoma

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

Yes, you really do need a medical expert for a malpractice lawsuit. It's generally an actual legal requirement--without one, your case will be dismissed. Moreover, there's no way to prove malpractice--or bad medical practice--without expert medical testimony.

If your lawyer can't find an expert who will agree that the doctor did something wrong, that means one of two things:

1) The lawyer is not very good, or at least not experienced at medical malpractice--there are many medical experts who regularly testify, and if she can't find one, she may not have the contacts or experience to do so.

2) It really wasn't malpractice, so the reason there are no experts who will testify that it was is that it wasn't.


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