Expert witness need not have same specialty as doctor defendant

A vascular surgeon is qualified to testify about whether an orthopedic surgeon breached the standard of care, the Maryland Court of Special Appeals has ruled. The appeals court said vascular and orthopedic practices sometimes overlap, making the specialties “related.”

The ruling deflates a state tort reform provision that requires expert witnesses to have the same or similar medical background as the doctor being sued, said Gene Ransom, CEO of MedChi, the Maryland State Medical Society.

“We don’t like the ruling, because it seems to weaken the tort reform that we passed, specifically, the expert witness requirement,” Ransom said. The provision “is important, because you really want to make sure you’re being held to the appropriate standard of care to determine if you’re negligent. You wouldn’t want the inappropriate person judging you for your acts.”

The ruling comes after a trial in which a jury found Elkton, Md.-based orthopedic surgeon Brian C. DeMuth, MD, liable for negligence. Walter Strong sued Dr. DeMuth in 2009. He claimed that the doctor failed to properly treat his leg after knee surgery, leading to amputation of the limb. Dr. DeMuth denied any wrongdoing.

Before trial, Strong identified two expert witnesses who planned to testify against Dr. DeMuth, one of whom was a vascular surgeon. Attorneys for Dr. DeMuth asked the court to prevent the surgeon from testifying because his background was not related to orthopedic medicine.

The court refused the request. During trial, vascular surgeon Jason Johanning, MD, testified that Dr. DeMuth did not preform proper postoperative management on Strong and failed to notice signs that his blood supply was being restricted. Had the blood flow issues been evaluated sooner, the leg could have been saved, Dr. Johanning testified.

A jury ruled in favor of Strong, awarding him about $1.7 million. The doctor appealed, arguing that the plaintiff violated Maryland’s expert witness requirements by allowing Dr. Johanning to testify.

Under the state’s 2005 tort reform law, an expert witness must be board certified in the same specialty or a related one to testify that a defendant departed from the standard of care. Dr. DeMuth said the certification process for orthopedic surgery and vascular surgery are regulated by different specialty boards, and certification in each specialty requires a different training regimen. Attorneys for Strong said the specialties were related.

In its June 6 opinion, the appellate court said state law does not define the meaning of “related,” and that courts must review the circumstances of each case. In the Strong case, the questions of negligence centered on postoperative treatment of possible vascular complications of orthopedic surgery, a subject in which Dr. Johanning was qualified to testify, the court said.

“Not all surgical specialties necessarily are associated or connected with respect to diagnosis and treatment of a particular patient. & We conclude, however, that in the context of the malpractice allegations in this case, the specialties of orthopedic surgery and vascular surgery overlap, so that the board certification specialties are ‘related’ within the meaning of [the law],” the court said.

Impact on expert witness testimony

The ruling reinforces the fact that expert witnesses in Maryland are not required to have the exact same background to testify, said Lou Close, Strong’s attorney.

“The way you read the statute and determine if the specialities are related is to look and see what the medical issues are in the case,” he said. “In our case, it was essentially a vascular issue, a blood flow issue. We weren’t asking the vascular surgeon to judge the standard of care of the knee surgery, but to [testify] on the postoperative care. Both [specialties] are called to manage patients in a postoperative setting.”

But the decision is contrary to the law’s intent, said Chad Joseph, Dr. DeMuth’s attorney. The purpose of the provision is to limit the number of expert witnesses who can testify in a medical liability case, he said.

“The court of appeals opinion renders the statute meaningless,” he said.

Dr. DeMuth is considering whether to ask the Court of Appeals of Maryland, the state’s highest court, to review the case. At this article’s deadline, a decision had not been made.

The ruling follows a defeat in May for South Carolina doctors concerning expert opinions. In that case, the South Carolina Supreme Court said an expert opinion issued before a lawsuit may proceed need not address how the alleged negligence caused injury. The report must assert only that the standard of care was breached.

Decisions in other states about expert witness requirements have been mixed. For example, the 5th District Court of Appeals in Texas in 2011 upheld the state’s certificate-of-merit requirement for medical liability cases. However, a 2010 decision by the Supreme Court of New Jersey provided more leeway for plaintiffs filing such expert witness reports. The court said plaintiffs who cannot find a doctor in the same speciality as the defendant physician are allowed to use other specialists.

The Maryland ruling could lead to more frivolous cases being filed against doctors, Joseph said.

“I think everyone agrees the system is better for everyone if we have qualified experts on both sides providing us with their expertise,” he said. “By broadening the pool of who can testify, you’ve increased the chances of a nonmeritorious case moving forward.”