Qualifying as an expert

Question: A patient alleges that an ophthalmologist was negligent in performing blepharoplasty. The surgical site became infected and left the patient with a disfigured eye. An infectious disease specialist was to testify as plaintiff’s expert, but the defense, relying on a state statute, objected that the expert-to-be had no specialized training in ophthalmology.

Correct statements about expert medical testimony include the following, except:

A. The federal Rules of Evidence require that an expert possess the relevant knowledge, skill, education, training, or experience.

B. Only a few states have enacted statutes specifying that an expert must be in the same or similar specialty as the defendant.

C. Advocates contend that such statutes reduce frivolous lawsuits by limiting expert shopping and the use of “hired guns.”

D. It is the sitting judge, not the jury, who interprets the statute and decides whether a witness qualifies as an expert.

E. In some cases, a nondoctor such as a nurse or pharmacist may be allowed to offer expert testimony against a doctor.

Answer: B. Lay testimony is usually insufficient to define the standard of care in a claim of medical malpractice, and “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw.1995]). Court rules of evidence dictate that the expert must possess the knowledge, skill, experience, training, or education for establishing that standard.

In coming to an opinion, the expert may rely on external evidence in the form of a book, treatise, or article; and although these sources represent hearsay evidence, they are admissible to enable the expert witness to form his/her opinion.

The facts of the multiple-choice question above are taken from a recent case (Edwards v. Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056 [Fla. 4th DCA 2013]), whose appeal is yet to be heard by the Florida Supreme Court. The plaintiff alleged that the surgical site was infected with nocardia during a lower-lid blepharoplasty, which caused her to undergo additional surgery with resulting disfigurement of the eye.

A lower court disqualified the plaintiff’s expert, an infectious disease specialist, based on a Florida statute stipulating that expert medical opinion can be offered only by one in the “same or similar specialty” (Section 766.102, Florida Statutes (2009)). In the words of the court, “Simply put, the infectious disease doctor is not an eye surgeon, nor is the ophthalmologist an infectious disease doctor.”

More than half of all the states have a medical-expert law, many with language comparable to the Florida statute. The idea behind such a statute, frequently enacted as part of a state’s tort reform, is to limit expert shopping and the use of hired guns and “junk science.”

Unsurprisingly, litigation abounds over the statutory language.

For example, a Maryland court ruled that a vascular surgeon was qualified to set the standard of care when an orthopedic surgeon’s alleged negligence caused a patient to lose a leg following knee surgery. The court found the two specialties to be “related,” because the orthopedic complication was vascular in origin.

In some jurisdictions without strict statutory requirements, doctors are more likely to be allowed to testify outside their specialty.

Instances of professionals of unlike specialties qualifying as experts include a nephrologist testifying against a urologist, an infectious disease specialist offering an expert opinion in a stroke case, a pharmacist testifying on the issue of a medication side effect, and a nurse on bedsores. Georgia requires only that an expert show significant familiarity with the area of practice in which the expert opinion is to be given. Still, in a sleep apnea case (Nathans v. Diamond, 654 S.E.2d 121 [Ga. 2007]), the court held that a pulmonologist was not qualified to testify on the standard of surgical care provided by an otolaryngologist.

Besides arguing over the statutory language, litigants have also raised questions of constitutionality. For example, Arizona’s statute ARS §12-2604 (A) requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state court of appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law (Seisinger v. Siebel, 203 P.3d 483 [Ariz. 2009]).

More recently, the same court upheld the constitutionality of the requirement that an expert share “the same specialty” as the treating physician, and disqualified an adult hematologist from serving as an expert because the defendant was a pediatric hematologist, not an adult hematologist (Baker v. University Physicians Healthcare, 296 P.3d 42 [Ariz. 2013]).

Another issue deals with the locality rule. In an Illinois case, the court accepted an out-of-state plaintiff expert based on his qualifications, competency, and familiarity with standards in the defendant’s community. The case dealt with the development of a rectovaginal fistula that complicated an episiotomy during delivery (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]).

The defense attempted to exclude the expert, alleging the lack of familiarity with the standards in the community (Rantoul, Ill.). However, the expert stated that he was familiar with the minimum standards of medical practice in relation to the diagnosis and treatment of rectovaginal fistulae, and those minimum standards were uniform throughout the country.

It is not necessary that the expert witness has the highest possible qualifications to testify about a particular matter. Still, in Domingo v. T.K. (289 F.3d 600 [9th Cir. 2002]), a federal court excluded the testimony of the plaintiff’s expert witness, because it lacked reliability. The plaintiff developed brain damage from fat embolism following hip surgery, and alleged that prolonged malleting of a hip prosthesis was the cause of the fat embolism syndrome (FES).

The court found that “there was no evidence of widespread acceptance of Dr. Harrington’s theory linking extended malleting to FES; indeed, no theory linking extensive malleting to FES had ever been published.” It also noted the lack of any objective source, peer review, clinical tests, establishment of an error rate or other evidence to show that Dr. Harrington followed a valid, scientific method in developing his theory.

Being disqualified as an expert is one thing, but a recent case goes further. In addition to dismissing an expert’s testimony, a state judge barred the expert from ever testifying in his courtroom after it was determined that the testimony was untruthful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected]

Question: A patient alleges that an ophthalmologist was negligent in performing blepharoplasty. The surgical site became infected and left the patient with a disfigured eye. An infectious disease specialist was to testify as plaintiff’s expert, but the defense, relying on a state statute, objected that the expert-to-be had no specialized training in ophthalmology.

Correct statements about expert medical testimony include the following, except:

A. The federal Rules of Evidence require that an expert possess the relevant knowledge, skill, education, training, or experience.

B. Only a few states have enacted statutes specifying that an expert must be in the same or similar specialty as the defendant.

C. Advocates contend that such statutes reduce frivolous lawsuits by limiting expert shopping and the use of “hired guns.”

D. It is the sitting judge, not the jury, who interprets the statute and decides whether a witness qualifies as an expert.

E. In some cases, a nondoctor such as a nurse or pharmacist may be allowed to offer expert testimony against a doctor.

Answer: B. Lay testimony is usually insufficient to define the standard of care in a claim of medical malpractice, and “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw.1995]). Court rules of evidence dictate that the expert must possess the knowledge, skill, experience, training, or education for establishing that standard.

In coming to an opinion, the expert may rely on external evidence in the form of a book, treatise, or article; and although these sources represent hearsay evidence, they are admissible to enable the expert witness to form his/her opinion.

The facts of the multiple-choice question above are taken from a recent case (Edwards v. Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056 [Fla. 4th DCA 2013]), whose appeal is yet to be heard by the Florida Supreme Court. The plaintiff alleged that the surgical site was infected with nocardia during a lower-lid blepharoplasty, which caused her to undergo additional surgery with resulting disfigurement of the eye.

A lower court disqualified the plaintiff’s expert, an infectious disease specialist, based on a Florida statute stipulating that expert medical opinion can be offered only by one in the “same or similar specialty” (Section 766.102, Florida Statutes (2009)). In the words of the court, “Simply put, the infectious disease doctor is not an eye surgeon, nor is the ophthalmologist an infectious disease doctor.”

More than half of all the states have a medical-expert law, many with language comparable to the Florida statute. The idea behind such a statute, frequently enacted as part of a state’s tort reform, is to limit expert shopping and the use of hired guns and “junk science.”

Unsurprisingly, litigation abounds over the statutory language.

For example, a Maryland court ruled that a vascular surgeon was qualified to set the standard of care when an orthopedic surgeon’s alleged negligence caused a patient to lose a leg following knee surgery. The court found the two specialties to be “related,” because the orthopedic complication was vascular in origin.

In some jurisdictions without strict statutory requirements, doctors are more likely to be allowed to testify outside their specialty.

Instances of professionals of unlike specialties qualifying as experts include a nephrologist testifying against a urologist, an infectious disease specialist offering an expert opinion in a stroke case, a pharmacist testifying on the issue of a medication side effect, and a nurse on bedsores. Georgia requires only that an expert show significant familiarity with the area of practice in which the expert opinion is to be given. Still, in a sleep apnea case (Nathans v. Diamond, 654 S.E.2d 121 [Ga. 2007]), the court held that a pulmonologist was not qualified to testify on the standard of surgical care provided by an otolaryngologist.

Besides arguing over the statutory language, litigants have also raised questions of constitutionality. For example, Arizona’s statute ARS §12-2604 (A) requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state court of appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law (Seisinger v. Siebel, 203 P.3d 483 [Ariz. 2009]).

More recently, the same court upheld the constitutionality of the requirement that an expert share “the same specialty” as the treating physician, and disqualified an adult hematologist from serving as an expert because the defendant was a pediatric hematologist, not an adult hematologist (Baker v. University Physicians Healthcare, 296 P.3d 42 [Ariz. 2013]).

Another issue deals with the locality rule. In an Illinois case, the court accepted an out-of-state plaintiff expert based on his qualifications, competency, and familiarity with standards in the defendant’s community. The case dealt with the development of a rectovaginal fistula that complicated an episiotomy during delivery (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]).

The defense attempted to exclude the expert, alleging the lack of familiarity with the standards in the community (Rantoul, Ill.). However, the expert stated that he was familiar with the minimum standards of medical practice in relation to the diagnosis and treatment of rectovaginal fistulae, and those minimum standards were uniform throughout the country.

It is not necessary that the expert witness has the highest possible qualifications to testify about a particular matter. Still, in Domingo v. T.K. (289 F.3d 600 [9th Cir. 2002]), a federal court excluded the testimony of the plaintiff’s expert witness, because it lacked reliability. The plaintiff developed brain damage from fat embolism following hip surgery, and alleged that prolonged malleting of a hip prosthesis was the cause of the fat embolism syndrome (FES).

The court found that “there was no evidence of widespread acceptance of Dr. Harrington’s theory linking extended malleting to FES; indeed, no theory linking extensive malleting to FES had ever been published.” It also noted the lack of any objective source, peer review, clinical tests, establishment of an error rate or other evidence to show that Dr. Harrington followed a valid, scientific method in developing his theory.

Being disqualified as an expert is one thing, but a recent case goes further. In addition to dismissing an expert’s testimony, a state judge barred the expert from ever testifying in his courtroom after it was determined that the testimony was untruthful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected]

Question: A patient alleges that an ophthalmologist was negligent in performing blepharoplasty. The surgical site became infected and left the patient with a disfigured eye. An infectious disease specialist was to testify as plaintiff’s expert, but the defense, relying on a state statute, objected that the expert-to-be had no specialized training in ophthalmology.

Correct statements about expert medical testimony include the following, except:

A. The federal Rules of Evidence require that an expert possess the relevant knowledge, skill, education, training, or experience.

B. Only a few states have enacted statutes specifying that an expert must be in the same or similar specialty as the defendant.

C. Advocates contend that such statutes reduce frivolous lawsuits by limiting expert shopping and the use of “hired guns.”

D. It is the sitting judge, not the jury, who interprets the statute and decides whether a witness qualifies as an expert.

E. In some cases, a nondoctor such as a nurse or pharmacist may be allowed to offer expert testimony against a doctor.

Answer: B. Lay testimony is usually insufficient to define the standard of care in a claim of medical malpractice, and “the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony” (Craft v. Peebles, 893 P.2d 138 [Haw.1995]). Court rules of evidence dictate that the expert must possess the knowledge, skill, experience, training, or education for establishing that standard.

In coming to an opinion, the expert may rely on external evidence in the form of a book, treatise, or article; and although these sources represent hearsay evidence, they are admissible to enable the expert witness to form his/her opinion.

The facts of the multiple-choice question above are taken from a recent case (Edwards v. Sunrise Ophthalmology ASC, LLC, 134 So. 3d 1056 [Fla. 4th DCA 2013]), whose appeal is yet to be heard by the Florida Supreme Court. The plaintiff alleged that the surgical site was infected with nocardia during a lower-lid blepharoplasty, which caused her to undergo additional surgery with resulting disfigurement of the eye.

A lower court disqualified the plaintiff’s expert, an infectious disease specialist, based on a Florida statute stipulating that expert medical opinion can be offered only by one in the “same or similar specialty” (Section 766.102, Florida Statutes (2009)). In the words of the court, “Simply put, the infectious disease doctor is not an eye surgeon, nor is the ophthalmologist an infectious disease doctor.”

More than half of all the states have a medical-expert law, many with language comparable to the Florida statute. The idea behind such a statute, frequently enacted as part of a state’s tort reform, is to limit expert shopping and the use of hired guns and “junk science.”

Unsurprisingly, litigation abounds over the statutory language.

For example, a Maryland court ruled that a vascular surgeon was qualified to set the standard of care when an orthopedic surgeon’s alleged negligence caused a patient to lose a leg following knee surgery. The court found the two specialties to be “related,” because the orthopedic complication was vascular in origin.

In some jurisdictions without strict statutory requirements, doctors are more likely to be allowed to testify outside their specialty.

Instances of professionals of unlike specialties qualifying as experts include a nephrologist testifying against a urologist, an infectious disease specialist offering an expert opinion in a stroke case, a pharmacist testifying on the issue of a medication side effect, and a nurse on bedsores. Georgia requires only that an expert show significant familiarity with the area of practice in which the expert opinion is to be given. Still, in a sleep apnea case (Nathans v. Diamond, 654 S.E.2d 121 [Ga. 2007]), the court held that a pulmonologist was not qualified to testify on the standard of surgical care provided by an otolaryngologist.

Besides arguing over the statutory language, litigants have also raised questions of constitutionality. For example, Arizona’s statute ARS §12-2604 (A) requires a medical expert to be a specialist who is actively practicing or teaching in that area of medicine. The state court of appeals held that this violated the separation of powers doctrine (conflicting with Arizona Rule of Evidence 702), but the Supreme Court of Arizona subsequently reversed and reinstated the law (Seisinger v. Siebel, 203 P.3d 483 [Ariz. 2009]).

More recently, the same court upheld the constitutionality of the requirement that an expert share “the same specialty” as the treating physician, and disqualified an adult hematologist from serving as an expert because the defendant was a pediatric hematologist, not an adult hematologist (Baker v. University Physicians Healthcare, 296 P.3d 42 [Ariz. 2013]).

Another issue deals with the locality rule. In an Illinois case, the court accepted an out-of-state plaintiff expert based on his qualifications, competency, and familiarity with standards in the defendant’s community. The case dealt with the development of a rectovaginal fistula that complicated an episiotomy during delivery (Purtill v. Hess, 489 N.E.2d 867 [Ill. 1986]).

The defense attempted to exclude the expert, alleging the lack of familiarity with the standards in the community (Rantoul, Ill.). However, the expert stated that he was familiar with the minimum standards of medical practice in relation to the diagnosis and treatment of rectovaginal fistulae, and those minimum standards were uniform throughout the country.

It is not necessary that the expert witness has the highest possible qualifications to testify about a particular matter. Still, in Domingo v. T.K. (289 F.3d 600 [9th Cir. 2002]), a federal court excluded the testimony of the plaintiff’s expert witness, because it lacked reliability. The plaintiff developed brain damage from fat embolism following hip surgery, and alleged that prolonged malleting of a hip prosthesis was the cause of the fat embolism syndrome (FES).

The court found that “there was no evidence of widespread acceptance of Dr. Harrington’s theory linking extended malleting to FES; indeed, no theory linking extensive malleting to FES had ever been published.” It also noted the lack of any objective source, peer review, clinical tests, establishment of an error rate or other evidence to show that Dr. Harrington followed a valid, scientific method in developing his theory.

Being disqualified as an expert is one thing, but a recent case goes further. In addition to dismissing an expert’s testimony, a state judge barred the expert from ever testifying in his courtroom after it was determined that the testimony was untruthful.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected]