Maryland high court to consider expert witness rule

The case centers on what professional activities qualify physicians to testify as medical expert witnesses.

By Amy Lynn Sorrel — Posted Nov. 16, 2009

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Maryland's highest court will decide the scope of a state law setting minimum requirements for expert witnesses in medical liability cases -- a rule physicians say has been key to keeping unfounded lawsuits from clogging the courts.

At least 30 states have statutes regulating the qualifications of medical expert witnesses. For example, some require that the witness practice in the same specialty as the physician defendant or spend a certain amount of time actively practicing medicine.

Maryland lawmakers, as part of a 2004 tort reform package, prohibited the use of medical expert witnesses who devoted more than 20% of their professional time to reviewing and testifying in personal injury cases.

Now, in a potentially precedent-setting opinion, the Maryland Court of Appeals is expected to define what counts as the sort of professional activities that may make up the remainder of a physician's time to qualify as a medical expert.

"We want people who are truly practicing medicine to opine on the care given," said Gene M. Ransom III, CEO of MedChi, the Maryland State Medical Society, which filed a friend-of-the-court brief in the case. "Our concern is we should not allow our system to be manipulated by hired guns. ... You get these professional witnesses coming in, and they can unfairly alter the outcome of these cases."

But trial lawyers contend that an overly narrow ruling by the Court of Appeals would limit the pool of physician experts willing to testify against their colleagues. That would cut short legitimate cases, said Andrew G. Slutkin, the plaintiff attorney in the case.

"We shouldn't be defining professional services to be so contrary to what doctors do," he said.

The case stems from a 2008 appeals court decision allowing a retired French physician to testify in a case alleging that physicians from the University of Maryland Medical System were negligent in treating Rebecca M. Waldt for a brain aneurysm in 2002. After undergoing a procedure involving a neuroform stent, Waldt experienced complications that led to a stroke and left her with physical and mental impairments. The doctors denied any negligence, according to court papers.

In 2006, a trial judge disqualified interventional neuroradiologist Gerard Debrun, MD, as a potential plaintiff expert witness after finding he had not practiced or seen patients since he retired in 2001, and that most of his income came from being an expert witness.

While Dr. Debrun was involved in activities such as reading, writing and peer reviewing journal articles and observing procedures, the Baltimore City Circuit Court said those efforts were not directly related to patients or the practice of medicine. Nor did Dr. Debrun have experience with the neuroform stent involved in the case.

But the Court of Special Appeals reversed the decision, saying the trial court slighted the relevance of Dr. Debrun's activities to his professional expertise. "All were related to interventional radiology, his profession, and ... were not activities directly involved in testimony in personal injury cases," the court said.

The Court of Appeals, the state's high court, ruled Oct. 20 that the trial court properly excluded Dr. Debrun from testifying. In a rare move, however, justices -- without explanation -- withdrew the opinion, which no longer stands. As of this article's deadline, the court was reconsidering the case.

A way around the rules?

Doctors say the appeals court ruling, if left intact, essentially would nullify the expert witness statute by giving professional experts a road map for skirting it.

An expert "need not hold a medical license, engage in medical teaching or research, so long as he professes to be an avid reader. The possibilities for deceit are numerous," MedChi's brief states.

Moreover, any limitations imposed by the rule apply equally to both defendant and plaintiff experts, Ransom said. "And maybe it will encourage marginal cases to settle, which is a good thing."

An attorney for the University of Maryland Medical System did not return calls for comment.

Juries are capable of discerning how much weight to give an expert witness opinion, said David M. Kopstein, who authored a friend-of-the-court brief in the case on behalf of the Maryland Assn. for Justice, a trade group for trial lawyers.

But a ruling like that of the trial court creates arbitrary barriers for plaintiffs to get their cases to court, he said, adding that Dr. Debrun was excluded because, by the court's calculation, he spent 20.66% of his time on legal activities.

"If Dr. Debrun spent a couple more hours reading journal articles, then he passed the rule," Kopstein said. "If cases are won or lost based on that, it's a troubling notion."

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