Maryland high court validates rule setting minimum requirements for expert witnesses

Justices clarified the fact that doctors must be actively engaged in the medical profession to qualify as expert witnesses.

By Amy Lynn Sorrel — Posted Nov. 26, 2009

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Maryland's highest court upheld a tort reform measure requiring certain qualifications for expert witnesses in medical liability cases, a move physicians say will prevent plaintiffs from using so-called "hired guns" to bolster meritless lawsuits.

The 2004 law prohibits the use of medical expert witnesses who devote more than 20% of their professional time to testifying in personal injury cases.

In a Nov. 10 ruling, the Maryland Court of Appeals for the first time defined the type of professional activities that may make up the rest of a physicians' time to qualify as a medical expert witness. Those activities must involve active participation in the medical profession and contribute in some form to its advancement, justices said.

"This allows a qualified doctor to continue to utilize his or her expertise [to assist in medical liability cases], but prevents him or her from launching a second career as purely an expert witness," states the opinion in University of Maryland Medical System v. Waldt (link).

The high court noted that its interpretation fell in line with other states with similar restrictions on expert witnesses, pointing to decisions in Kansas, North Carolina and Ohio.

Justices reversed a 2008 appeals court ruling allowing a French interventional neuroradiologist, Dr. Gerard Debrun, to testify as a plaintiff expert witness, though he had not practiced or seen patients since retiring in 2001, and most of his income came from serving as an expert witness. Appellate judges found that a majority of Dr. Debrun's time was spent on other activities that were related to his field, including peer reviewing medical journals, reading, attending conferences and observing procedures.

The high court disagreed. While Dr. Debrun's peer review work qualified as a professional activity and contributed to the medical field, the remainder of his pursuits were undertaken for "personal or leisurely reasons" and did not involve his active participation, justices said.

MedChi, the Maryland State Medical Society, praised the decision, saying it will help keep the legal system fair. The organization filed a friend-of-the-court brief in the case.

Trial lawyers argued that patients will have more trouble finding qualified expert witnesses, undermining their chances of going to court.

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