Orthopedic expert witnesses- Everything that you should know

There’s a huge demand for expert witnesses as they are central to orthopedic malpractice cases. Their guidance, expert opinion, and testimony can help the jury to decide the final verdict of the case. Therefore, it is very important to choose these orthopedic experts very carefully. Attorneys cannot help you in getting your claims without the help of these experts. Now the question is- who is an orthopedic expert witness? To understand this and their role and significance in a medical malpractice case, you need to read this article.

Who are orthopedic witnesses?

They are surgeons who have knowledge and experience in different orthopedic problems and their diagnosis. The plaintiff cannot hire these witnesses and therefore, an attorney has to be retained through whom you can get in touch with an expert witness. A neutral opinion from a third party is crucial in malpractice claims. They can judge the facts of the case without being biased and influenced. As far as qualifications are concerned, note that all orthopedic surgeons are not expert witnesses but all expert witnesses are orthopedic surgeons. To sum up, orthopedic surgeons need to be board-certified in order to testify in these matters. They can comprehend the depth of injuries, the gravity of the case and can determine how the doctor under question is liable for the injuries to the patient. Frankly speaking, the expert witness can make or break your case. This is one of the reasons why it is crucial to choose the orthopedic expert witness carefully. The tips to choose an expert have been discussed later in this article.

Significance of an expert witness in orthopedic malpractice cases:

Orthopedic surgeons are often called upon to provide a medico-legal opinion in legal or administrative proceedings. Hence, these expert witnesses have to be readily available in the interest of the public. As an orthopedic expert witness, the surgeon should recognize his responsibilities and the importance of providing true and scientifically correct testimony. After all, it is a matter of providing justice to someone who has faced injuries due to unprofessional conduct. As per the AAOS Code of Medical Ethics and Professionalism for Orthopedic Surgeons, the expert witnesses should perform the following roles:

Impartial Testimony

Orthopedic surgeons are called upon by attorneys to offer testimony or depositions at the court. The testimony should be scientifically correct and it should be unbiased and neutral.

  • They shall not provide testimony for a case that is false or untrue.
  • All the opinion and case reviews offered by the expert witnesses need to be free from any biases and that it should be provided in a free and impartial manner.
  • They shall assess the medical condition and the care provided in accordance with the established standards at the place, time, and in the perspective of care delivered.
  • An orthopedic expert witness needs to prove why his or her opinion is correct in a particular case and on what basis he has made the findings.
  • All the medical records of the plaintiff should be accessed and reviewed before providing any opinion on the surgical or medical supervision of the patient.

Knowledge of the subject matter

Orthopedic surgeons are called upon by attorneys to offer testimony or depositions at the court. While carrying out this role, the expert witness needs to ensure that the testimony provided by the surgeon is scientifically correct and that the surgeon has the required skills and experience to testify on that subject matter.

  • An orthopedic expert witness needs to offer testimony and depositions only in cases in which he or she has knowledge of the medicines and clinical experience.
  • The surgeon should have the requisite knowledge on the established standard of care because he needs to prove that there was malpractice because of the unprofessional conduct of the defendant or because they have deviated from the established standard of care.
  • Lastly, they need to state the basis on which testimony is presented. In simple terms, they need to say if the opinion is based on their clinical evidence or personal experience.


It’s immoral on the part of the orthopedic expert witnesses to accept compensation that is conditional upon the final outcome of the lawsuit.

  • An orthopedic expert witness should not accept a fee that is subjected to the outcome of the case.
  • The compensation amount should be reasonable for the expert witness and it must be in tune with the time and effort needed for evaluating and testifying the case.

By now you must have understood the importance of expert witnesses and the things that they need to follow while performing the role of an expert witness. Apart from this, an expert witness has to prove four essential things to prove the negligence of the surgeon.

Important grounds that expert witnesses have to establish in orthopedic malpractice cases:

In order to prove the negligence of the surgeon, an attorney has to prove 4 essential things.  These grounds have to be proved in order to establish that the patient is injured and they have the right to seek compensation for the damages. Remember, this is one of the major roles played by an expert witness along with an attorney.

  • Duty of care– The first essential element to prove in a malpractice case is the duty of care. As per medical context, a patient is under the care of their doctor. In other words, the doctor needs to treat the patient in accordance with the established standards of care. They need to act professionally and with responsibility while treating the patient. The breach of duty of care will be established if the surgeon fails to treat the patient in accordance with this standard.
  • Breach of duty of care– To prove negligence, it is mandatory to establish that the surgeon had deviated from the established standards, causing a breach of duty of care, which ultimately harmed the patient in some way or the other. However, small errors or simple mistakes cannot be considered as a breach of duty of care. The gravity of the error needs to be a serious one. This is one of the areas where an orthopedic expert witness can help. They need to establish that the negligence caused by the surgeon is a serious one. This will also make the case strong.
  • Causation– In this, the attorneys have to prove that the patient has sustained injuries because of the negligence of the doctor. In other words, the patient has suffered injuries as a direct result of the breach of the surgeon.
  • Harm– This is actually the continuation of the third point. It means that harm has been caused to the patient because of the doctor’s actions. If the injury is not a direct result of the doctor’s breach, then it will not be considered medical malpractice.

As you can see from the above points, the role of expert witnesses is highly significant. Therefore, it becomes imperative for the attorney to carefully choose an expert witness.

Factors to consider before choosing an expert witness:

No matter whatever the area of specialization might be, an attorney at some point will need medico-legal guidance from an orthopedic expert witness. If you are looking for deposition services, then you’ll need to find an expert.

Choosing the right expert can be difficult especially when you have so many options to choose from. Every malpractice attorney knows that an expert witness should not only be certified to provide expert opinions but should also present the matter well on the witness box or at deposition during court trials. This crucial choice cannot just be decided on the CV of the potential orthopedic experts. In this context, you need to know which factors require consideration before making a choice.

Skills of persuasion

When it comes to choosing the right orthopedic witness, the degree or CV of the expert will not be sufficient. What is important to look at here is how professionally they simplify the complex matter of the case. The main reason for calling upon an expert witness is to simplify the complex elements of the case so that it is digestible to the solicitors as well as the decision-makers. There is a link between communication and persuasion in this regard. The experts should not only communicate the facts but they need to persuade the jurors as well. In simple terms, they should have the ability to convince the decision-makers that the facts they are presenting are correct. The deciding factor here will be how well they present the facts or communicate with the jury. For instance, someone who speaks on panels or has been a lecturer will be considered better in communicating with the jury. It is not always about how much the expert knows; it is about how they present their knowledge to the decision-makers or how well they have been able to convince that the other party was responsible for causing injuries to the patient.

Testifying skills

Another important thing to look for is the testifying experience of the expert witnesses. In this context, it is important to see how convincing their facts are. This point is basically a continuation of the previous point. Their testifying skills will matter because they have to convince the jury that there has been a malpractice case and the defendant party is responsible for the injuries of the plaintiff. The attorneys will check how successful they have been in providing testimony.

Two orthopedic expert witnesses can have the same practical knowledge and experience. So how will the attorney choose the witness in this regard? When two or more experts will have the same credentials, the attorney needs to identify the difference in their background which sets apart one expert from the other. Now that you know how these experts are chosen, you also need to understand how they work with the attorneys.

Cases and complications for which orthopedic experts may offer testimony:

An orthopedic expert witness may provide expert testimony, case reviews, and depositions in the following areas:

  • ACL knee surgery– This mainly happens with athletes. Malpractice cases can occur if the patient suffers from infection or if they are unable to return to sports.
  • Ankle surgery-Botched-up surgeries may give way to complications like pseudoaneurysms, which is one of the rare but life-threatening condition. Other side effects that could lead to malpractice include- joint infections, bleeding, blood clots, stiffness, etc.
  • Elbow surgery– Elbows are an important part of our body that allows movement of forearms with ease. While the surgery has higher success rates, there can be surgical complications for which you’ll need an expert witness. Some of the potential risks include- blood clots, nerve damage, infections, excessive bleeding, and much more.
  • Knee surgery-For knee injury and damages, the doctor might recommend knee arthroscopy. This surgery has multiple benefits as compared to the other surgical process. But patients might sustain injuries due to the negligence of the surgeon. Some of the potential risks are as follows- numbness in the surgery area, nerve damage, bleeding, infections, anesthesia allergies, blood clots, and artery damage.
  • Shoulder surgery-For shoulder malpractice cases, an expert witness will be needed for testifying the medical files. Most patients will recover from the surgery but like every other surgery, knee surgeries are associated with some kind of complications like- weakness in the shoulders, misdiagnosis, Chondrolysis, repairs don’t heal, frozen shoulder, infections, and bleeding.

If you have sustained any of the complications because of the negligence of the surgeon, you should immediately get in touch with an attorney. This legal representation is extremely important to get your compensation. Remember you cannot get your compensation amount if you try to do it on your own and the problem gets bigger if you don’t have knowledge on the legal matters. But with the help of an attorney and an orthopedic expert witness, you can not only win the case but also get the deserving amount.