Qualifications of medical expert witnesses come under fire

In the last five years, Gene Ransom III, CEO of MedChi, the Maryland State Medical Society, has noticed a significant push by plaintiff attorneys to challenge Maryland's expert witness requirements. The rules, enacted in 2004, say witnesses must have the same or a similar medical background as the physician being sued.

Although the challenges aren't surprising, Ransom is troubled by how Maryland judges have recently interpreted the provisions. In the past year, courts in three separate cases have ruled that: a vascular surgeon is qualified to testify on the standard of care of an orthopedic surgeon; a pharmacist can testify against a physician in an informed consent case; and a nephrologist is qualified to testify against a urologist.

“We definitely think the courts are attempting to create law,” Ransom said. “The Maryland General Assembly passed these laws, and the erosion of [those measures] is problematic. It's not appropriate to have physicians from different specialities looking at the same case and opining. Judges don't understand that just because somebody has an MD, they're not all the same.”

The Maryland cases highlight the varied stances state courts have taken on expert witness requirements. After significant legislation to adopt expert witness rules in the last 10 years, judges are reshaping who is qualified to take the stand against physicians.

Since 2012, at least 13 rulings in state courts have addressed what type of experts can testify in medical liability cases; seven of those decisions have been unfavorable to defendants. For example, the Michigan Court of Appeals in March ruled that a neurosurgeon was qualified to testify in a medical liability case against a vascular surgeon. In September 2012, a California appeals court allowed a nurse to contradict a physician expert witness on the cause of an injury.

Such rulings weaken expert witness protections and affect physician-defendants negatively, said Rob Francis, chief operating officer of the Doctors Company, a physician-owned medical liability insurer.

“Some courts have tended to water down same-specialty laws by liberalizing who might be considered to be in a 'same or similar' specialty in those states with the 'similar' allowance,” he said. “The liberalization of such requirements adds cost to the system by allowing more frivolous claims and allowing those claims to proceed through the litigation process.”

Yet other recent decisions appear to strengthen expert witness rules.

In April, the Supreme Court of New Jersey said an internist who specializes in critical care medicine and pulmonary diseases is not qualified to testify against an emergency physician. In that case, the Litigation Center of the American Medical Association and the State Medical Societies, along with the Medical Society of New Jersey, issued a brief in support of the physician defendants. Also in April, the Alabama Supreme Court ruled that an obstetrician-gynecologist is not qualified to testify on a family physician's standard of care.

How judges interpret expert witness requirements varies by state, said Todd W. Smyth, a South Carolina medical liability defense attorney and vice chair of the Defense Research Institute's Medical Liability Committee. DRI is a national trade association representing defense attorneys.

“It depends a lot on the state's particular rule,” he said. “Some of them have a very cut-and-dried rule, while some of them provide for more latitude. There's a lot of variation from state to state.”

Strict versus lax rules

More than 30 states have laws that set professional standards for expert witnesses in medical liability cases. About 24 of those states require expert witnesses to have the same or a similar medical background as the defendant physician. But rules differ on what “similar” qualifications mean.

In Arizona, for example, an expert witness must be licensed in the same profession as the defendant and maintain board certification in the same specialty as the defendant. He or she also must devote a majority of professional time to the active clinical practice or instruction of students in the same profession as the defendant for the year immediately preceding the occurrence giving rise to the lawsuit.

Connecticut's law, on the other hand, says that “any health care provider may testify as an expert if he or she is a similar health care provider or the court determines the expert possesses sufficient training, experience and knowledge as a result of practicing or teaching in a related field of medicine within the last five years.”

In May, Florida lawmakers approved the latest legislation on expert witnesses. The bill, which was headed to Gov. Rick Scott at this article's deadline, would require medical liability experts to have the same specialty.

Vague state laws complicated by complex medical cases can confuse judges attempting to decipher an expert's qualifications, said Louise B. Andrew, MD, a medical liability attorney and founder of MD Mentor, which provides litigation stress support services to physicians.

“Obviously, not all judges are medically sophisticated, and it's also possible that a judge can be taken in by” assertions that a witness is qualified, she said. “It's very possible for someone who is a skilled speaker — and, therefore, probably a 'good' expert witness — to convince a jury that they are the real experts. It's possible that judges are misled just like juries are misled.”

AMA model legislation states that doctors giving testimony should be trained and experienced in the same discipline as the defendant, or have specialty expertise in the disease process or procedure performed in the case, and that they be recognized by the American Board of Medical Societies or an equivalent board. They should be in active medical practice in the same discipline or school of practice as the defendant or have devoted a substantial portion of time teaching about the medical care at issue within five years of the alleged negligence, the legislation states.

Case law shapes decisions

In states where no expert witness requirements exist, judges have relied on prior case law to determine who is qualified to testify.

The two most common cases relied upon are Frye v. United States and Daubert v. Merrell Dow Pharmaceuticals. Both cases, while not medical liability suits, provide guidance to courts about what standards to use when deciding the credibility of expert witnesses. The Daubert ruling, decided by the U.S. Supreme Court in 1993, holds expert witnesses under stricter scrutiny than the Frye decision, legal experts said.

“Federal courts have long applied the Daubert standard, and, increasingly, the states that have yet to do so are moving in that direction,” said Darren McKinney, a spokesman for the American Tort Reform Assn. But “some outlier states persist in the more lax Frye standard.”

As long as weak requirements exist about who is qualified to testify, plaintiffs and their attorneys will continue to push judges to rule broadly on the issue, McKinney said.

“The plaintiffs' bar is going to do whatever it can to make it easier to bring a tort case,” he said. “Of course, the less exacting a state's standards, the easier it is to bring a potential meritless case and to continue to [pressure] defendants to settle.”