When Are Medical Experts Necessary?

A medical expert is not absolutely necessary for every case, but how do you know when one is needed?  I was involved in a case last year where the plaintiff did not disclose any medical experts.  As a result, I moved for summary judgment arguing the plaintiff could not prove any damages.  The plaintiff opposed, claiming medical experts were unnecessary based upon an obviousness exception to medical causation requirements.

In Nevada, a medical expert is usually necessary.

In Nevada, “[g]enerally, because an injury is a subjective condition, an expert opinion is required to establish a causal connection between the incident and the injury”[1]  “It is well-settled law that in a personal injury action causation must be proven within a reasonable medical probability based upon competent medical testimony.  Mere possibility alone is insufficient.”[2]  Thus Nevada personal injury cases start with the presumption that an expert opinion is necessary for medical causation.  However, by using the word “generally,” the Supreme Court recognized there may be factual circumstances where medical expert testimony is unnecessary.

For instance, if a plaintiff fell and suffered broken bones that were not broken before the fall, medical expert testimony might not be necessary.  By analogy, this would be consistent with the Supreme Court’s rulings about the evidence required before future pain and suffering may be awarded.  Krause Inc. v. Little stated “when an injury or disability is subjective and not demonstrable to others (such as headaches), expert medical testimony is necessary before a jury may award future damages.”[3]  Prior decisions had concluded “a shoulder injury causing a demonstrably limited range of arm motion is an objective injury which does not require expert testimony before a jury awards damages for future pain and suffering.”[4] Krause continued that logic, holding “a broken bone is closer to the latter situation than the former, and accordingly a plaintiff need not present expert testimony before the district court instructs on future damages.”[5]

How can a party qualify for the obviousness exception?

This is a good question that I can only answer by saying it depends.  In my case the plaintiff did not qualify for the obviousness exception.  His opposition did not present admissible evidence establishing the nature of his injuries so as to evaluate if they require expert testimony to causally link them to his fall.  No medical records were presented.  His deposition testimony described injuries in only generic terms, nor was the plaintiff himself qualified to provide medical causation opinion testimony.  A plaintiff’s own, unqualified opinion that an injury occurred is insufficient to create a question of fact.  As Blackmon v. New Albertson’s, Inc. stated, “[o]ther than her own assertions that she was injured in the fall, Plaintiff has directed the Court to no evidence that even raises a question of fact.”[6]

How do other states handle it?

I’m not sure.  What I do know is Georgia law will not help a Nevada plaintiff.  The plaintiff in my case argued “courts around the country have recognized cases in which the temporal proximity between a tort an [sic] injury was sufficient to establish causation, without medical expert witness testimony.”  However, he cited just two decisions, both from Georgia.

The Supreme Court of Georgia explained its requirements for medical causation in Cowart v. Widener where it was asked “(1) whether expert evidence is required to establish causation in a simple negligence case where a medical question is involved; and (2) if so, what constitutes a ‘medical question’ so as to require such expert testimony.”[7]  It agreed “expert evidence typically is not required to prove causation in a simple negligence case.”[8]  “However, expert evidence is required where a ‘medical question’ involving truly specialized medical knowledge (rather than the sort of medical knowledge that is within common understanding and experience) is needed to establish a causal link between the defendant’s conduct and the plaintiff’s injury.”[9]

Georgia’s standard, that “expert evidence typically is not required to prove causation in a simple negligence case,”[10] conflicts directly with Nevada’s standard that “[g]enerally, because an injury is a subjective condition, an expert opinion is required to establish a causal connection between the incident and the injury”[11]  Georgia generally may not require medical expert testimony, but Nevada does.  Nevada is not alone in this requirement.  By way of example, California “law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.”[12]  In Delaware “[w]hen the plaintiff’s claim involves bodily injuries, the causal connection between the defendant’s alleged negligent conduct and the plaintiffs alleged injury must be proven by the direct testimony of a competent medical expert.”[13]  Massachusetts determined “[b]ecause understanding medical causation is beyond the knowledge of the ordinary layman proof of if it must rest upon expert medical testimony.”[14]

What happened?

Plaintiff needed medical expert testimony to prove causation, had none, and did not qualify for an exception, so summary judgment was entered.  How do you know if your specific case requires medical expert testimony?  It is likely a case specific evaluation.

[1] Grover C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 112 P.3d 1093, 1100 (2005).
[2] Layton v. Yankee Caithness Joint Venture, 774 F. Supp. 576, 579-80 (D. Nev. 1991).
[3] 117 Nev. 929, 938, 34 P.3d 566, 572 (2001).
[4] Id.
[5] Id.
[6] No. 2:10-cv-712, 2011 U.S. Dist. LEXIS 120682, 2011 WL 4958631 (D. Nev. Oct. 17, 2011).
[7] 697 S.E.2d 779, 781 (Ga. 2010).
[8] Id.
[9] Id.
[10] Id.
[11] Menditto, 121 Nev. 278, 112 P.3d 1093, 1100 (2005).
[12] Miranda v. Bomel Constr. Co., Inc., 187 Cal. App. 4th 1326, 1336 (2010).
[13] Roache v. Charney, 38 A.3d 281, 286 (Del. 2012).
[14] Case of Canavan, 733 N.E.2d 1042, 1051 (Mass. 2000).