Medical Malpractice Standards and Expert Witnesses

In order to bring a successful medical malpractice claim, the injured party must show that the treating health care professional departed from accepted standards of practice and that such actions or failure to act caused the patient's injury or death. As medical practice standards are set by members of the medical profession, courts rely on health care professionals (who are not connected to the lawsuit) to instruct the court and jury regarding relevant standards of medical care.

 

Rules for Qualifying Someone as an Expert Witness

Before a health care professional's opinion will be accepted as proper expert testimony, the party wishing to use the testimony must establish that the expert is, indeed, qualified to provide a professional opinion.  Although the rules and parameters regarding such qualifications vary by jurisdiction, one of two rules tend to be applicable in many jurisdictions: the School of Practice Rule and the Locality Rule. Since the law governing such issues is largely created by state statutory and common law, many jurisdictions that claim to apply these rules may actually apply modified versions that differ substantially from other jurisdictions claiming to apply the same rule.

 

The School of Practice Rule

Expert testimony is generally limited to an expert's special knowledge as a member of a relevant area of practice, i.e., osteopaths, homeopaths, chiropractors, etc.  Many states have statutes or case law allowing only certain types of health care professionals to provide expert testimony in connection with the area of practice with which they are familiar.  For instance, under this rule, a pediatrician will not likely be permitted to offer expert testimony with respect to a chiropractor's standard of care.

 

The following provides two instances in which the school of practice doctrine is addressed differently:

• The relevant Alabama statute states that if the health care provider under scrutiny for malpractice is not a specialist, the professional's conduct must be measured against a "similarly situated health care provider" who is "trained and experienced in the same discipline or school of practice."
  
  
• Until 2002, the applicable Florida statute used the phrase "school of practice" in defining the appropriate standard of care.  However, in a 2003 revision, the phrase was removed and alternative language was inserted to further emphasize the policy that only experts with similar practice and training should be considered "similar health care providers."

The Locality Rule

Under the Locality Rule, expert testimony is drawn from the local area in which the health care professional being sued practices.  Some jurisdictions have expanded this rule to apply to not only the same community, but to similarly situated communities.  Although many jurisdictions have abandoned the locality rule, some are beginning to once again apply it in support of tort reform (legislation enacted in response to the increase in health care costs and damages in malpractice claims).  The rationale is that in certain rural locations, health care professionals should not be expected to adhere to the same standard of care when there is a lack of access to the same medical instruments or personnel available in more densely populated locations.

 

The majority of jurisdictions have abandoned this Locality Rule where the actions of a specialist are under scrutiny.  In such cases, a national standard is generally applied.  Thus, in such jurisdictions, a health care professional in a rural community, who claims to be a specialist, would be required to adhere to the same standards as a specialist in an urban community.

 

Battle

of the Experts

Often in medical malpractice cases, the ultimate outcome of a case seems to hinge on a "battle of the experts."  This is a term to describe the reliance that is placed on expert testimony in such cases.  Broadly speaking, the testimony of a medical malpractice expert is often very persuasive, yet diametrically opposed to the medical expert testifying for the opposition. 

 

Attorneys may attempt to discredit the opposition's expert by demonstrating that the expert is biased.  This can occur if the attorney reveals to the jury, through questioning of the expert, that the expert has testified numerous times for opposing counsel on many different cases, suggesting that the expert is a "hired gun."  Another way to discredit an expert is to closely examine the expert's background.  This will be an effective strategy where the expert has a minimal amount of experience and training in the specific procedure which is the subject of the lawsuit.  It may also be effective where the expert has been subject to professional discipline such as a license suspension.