Almost all medical malpractice cases depend on expert witnesses, usually physicians, to testify on behalf of the plaintiff to explain where a mistake was made. But a recent ruling in 2013 by the New Jersey State Supreme Court has set a standard that may make it harder for the injured party to prove fault.

The judges ruled unanimously that the expert witness needs to have the same credentials as the physician who stands accused of making an error. In this particular case, the emergency room doctor and an attending physician failed to prescribe a hyperbaric chamber for the patient, who suffered carbon monoxide inhalation poisoning in a workplace accident. Brain damage resulted that might have been prevented with the more intensive hyperbaric chamber treatment. But the court ruled against the plaintiff’s use of an expert witness whose subspecialty is hyperbaric medicine; instead, an emergency room doctor would have been better able to testify about the decisions and options in the ER, said the court.

This ruling does not negate all medical malpractice litigation. But it does potentially drive up the costs of retaining expert witnesses with very specific experience. What a medical expert must be able to establish for the plaintiff are the following:

• A standard of care is expected in all cases such as the plaintiff’s.
• That standard was not met — poor hygiene, incorrect or overlooked diagnoses, leaving a patient unattended at critical points, and errors in medication and surgical procedures all qualify as substandard care.
• That failure to meet standards directly contributed to injury or illness.
• The injury or illness incurred costs to the patient.

A skilled medical malpractice attorney can obtain medical records that then can be used to establish these points in a lawsuit. It is important to speak with a personal injury lawyer as soon as possible after a healthcare mistake is discovered in order to build a strong case.