Special Requirements for Medical Malpractice Expert Testimony

Previously, we discussed the fact certain states require affidavit of merit in medical malpractice cases. Similarly, many states have certain requirements[1] that must be met before a physician testifies as an expert witness in a medical malpractice case. The public policy arguments behind imposing requirements beyond those detailed in Rule of Evidence 702 include reducing testimony that is misleading, deceptive, or downright fraudulent. Apparently, the fear of the criminal and civil consequences of perjury are considered insufficient. However, those who regularly deal with medical opinion testimony can attest to the fact reasonable medical professionals can disagree on various points.

Selecting the appropriate expert in a given case depends in part on the facts of the case. However, in light of these additional requirements, expert selection must also take into consideration the requirements for the jurisdiction where the case will be filed.

Elements of a Medical Malpractice Claim

In order to establish a medical malpractice claim, a plaintiff must show the following:

1. A doctor-patient relationship, such that the doctor has a duty
2. A breach of the duty, typically by providing treatment in a manner that falls below the generally accepted standard of care; or failing to provide treatment at all
3. An injury that results from the breach of duty of care
4. Monetary damages

Areas of Litigation in Medical Malpractice Claims

Because there are several elements in a medical malpractice case, there are several different topics upon which an expert may opine. The experience of the expert will depend on where the alleged failure occurred. Possible failures could include the following:

1. Failure to recognize symptoms
2. Failure to order the necessary testing
3. Other failures related to diagnosis
4. Misdiagnosis
5. Misreading lab results, x-rays, or other test results
6. Improper prescriptions
7. Improper dose of prescription
8. Failure to take adequate patient history
9. Ignoring relevant facts related to patient history or current medications
10. Improper surgery, such as on the wrong organ or limb
11. Other surgical errors, such as leaving an item inside a patient improperly
12. Unnecessary surgery
13. Improper discharge from hospital
14. Improper follow-up or aftercare

Obviously, the expert needed for a case in which a physician failed to appreciate the lethal combination of current and new prescriptions will be different than the expert needed to evaluate an x-ray, even if both situations involve a breast cancer patient.

No Special Requirements

In certain states, there are no special requirements for experts in medical malpractice cases. Rather, states such as Nebraska rely on the rules of evidence alone. Specifically, those states rely on Rule 702, which deals with the testimony of experts generally.

Some Special Requirements

Licensed Physician

In some states, such as Mississippi, one must only be licensed as a doctor of medicine. This license may be held in Mississippi or in some other state. Other states, such as Rhode Island, allow expert testimony by persons “who by knowledge, skill, experience, training or education qualify as experts in the field of the alleged malpractice. . .” Given the potential for an expansive interpretation of “the field of the alleged malpractice,” a court may interpret the statute to include any licensed doctor, or, if the court is so inclined, narrow “the field” to only include a specific area of medicine.

Timing of Experience

Some states have requirements for the timing of the expert’s experience. In other words, experience, training, education, knowledge, and skill are not considered enough. Rather, this relevant experience must be within a certain time frame. Virginia, for example, requires the expert maintained “active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged act or omission.”

Same Specialty

Still other states require the expert practice in the same specialty as the defendant physician. Florida recently changed their laws to reflect this requirement. This may be one of the more restrictive requirements in medical malpractice testimony. More states are trending towards this requirement. The American Medical Association’s model legislation includes this requirement.

Exceptions to the Requirement for Expert Testimony

Presumptions of Negligence

Some states create a rebuttable presumption of negligence in certain instances. Nevada, for example, provides for the presumption of negligence in the following circumstances:

1. Where a foreign substance, other than medication or a prosthetic device, is unintentionally left in a body after surgery
2. Where an explosion or fire occurs during treatment under certain circumstances
3. Where a patient suffers burns caused by heat, radiation, or chemicals, during medical care
4. Where a part of the body not involved in treatment sustains injury
5. Where surgery is performed on the wrong patient or the wrong limb, organ, or part of a patient’s body

The presumption of negligence negates the requirement of expert testimony.

Waiver of Requirements

Tennessee waives the qualification requirements if the court determines an appropriate witness would not otherwise be available.

Other states permit waiver of expert requirements in other situations. For example, Pennsylvania recognizes sometimes a physician, such as a general practitioner, may treat a condition beyond their specialty or competence. Obviously, if a general practitioner goes beyond their specialty, having another general practitioner as the plaintiff’s expert may not be the best choice. Another general practitioner, for example, may know better than to treat illnesses or conditions beyond their specialty, and may be unwilling to testify about the appropriate standard of care, (beyond referring the patient to someone who has the correct qualifications). In these cases, an expert trained in the diagnosis and treatment of the condition at issue may testify. This is true, even though Pennsylvania’s general rule is the expert be in the same subspecialty as the defendant physician.

If You Need an Expert in a Medical Malpractice Case

If you need an expert in a medical malpractice case, you should take the time to review the relevant medical malpractice statutes to determine whether there are additional requirements above and beyond those for any other personal injury case. Practitioners are reminded there are requirements at or before the time of filing, as well as requirements for testifying experts in some jurisdictions.

[1] Ala. Code § 6-5-548(e); Alaska Stat. § 09.20.185; Az. Stat. § 12-2604; Ark. Code Ann. § 16-114-207(1); Cal. Evid. Code § 720 and Cal. Health & Safety Code § 1799.110(c); Colo. Rev. Stat. Ann. § 13-64-401 and Colo. Rev. Stat. §§ 13-20-601, 602; Conn. Gen. Stat. § 52-184c; Del. Code 18, § 6854 and Del. Code18, § 6853; Fla. Stat.§ 766.102(5) (a); Ga. Code § 24-7-702; Haw. Rev. Stat. § 626-1; Idaho Code § 6-1012 and 1013; 735 ILCS 5/8-2501; Iowa Code § 147.139; Kan. Stat. § 60-3412; La. Rev. Stat. § 9:2794; Md. Code Cts. & Jud. Proc. § 3-2A-02; Mich. Comp. Laws § 600.2169; Miss. Code. § 11-1-61; Mont. Code § 26-2-601; Nev. Rev. Stat. § 41A.100; N.M. Stat. § 41-5-23; N.C. R. Evid. § 8C-1,8C-1702; Ohio Rev. Code § 2743.43; Okla. Stat. 63, § 1-1708.1; R.I. Gen. Laws § 9-19-41; S.C. 15-79-125; Tenn. Code § 29-26-115; Tex. Civ. Prac. & Rem. Code § 74.401 – 403; Utah Code § 78B-3-423; Va. Code § 8.01-581.20; W. Va. Code § 55-7B-7.