South Carolina law governing medical malpractice lawsuits requires that the prospective plaintiff comply with certain prerequisites before the matter can go to litigation. One of these is to submit the dispute to a mediation conference. Another is to have the affidavit of an expert witness to go with the notice of intent to file a lawsuit. This expert witness requirement does not exist in lawsuits for ordinary negligence; the question this post covers is why it exists for medical malpractice.
The answer to this question lies within the medical malpractice statute, specifically in its definition of what constitutes medical malpractice: doing something that a reasonably prudent health care provider would not have done in similar circumstances. Put another way, in a typical case of negligence the standard of behavior against which the defendant’s conduct is considered is that of a “reasonable person.” Ordinarily, the jury can be trusted to understand what a reasonable person would do, but in the case of highly specialized professions such as medicine, the jury’s degree of knowledge cannot be said to be sufficient to know what a reasonable medical professional would or would not do in a specific situation.
To reduce the possibility that a medical malpractice lawsuit would be unmeritorious, the law imposes the requirement that the plaintiff find an expert witness in the field of medicine – preferably one in an area of practice similar to or the same as the defendant – who can attest that in his or her opinion, the defendant did not meet the standard of care of a reasonable medical professional.