In medical negligence cases one problem with respect to experts surfaces frequently: cross-discipline testimony; whether an expert from one discipline may testify on the standard of care in another discipline. For instance, may an orthopedic surgeon testify against an E.R. doc on the issue of standard of care in a wrist fracture gone sour?

In most states, the answer is found in statutes whereas in other states the answer comes from an analysis of the evidence code. This article will present some perspective on this problem by beginning with the question, Who may qualify as an expert? Then, What is the permitted scope of the testimony? And finally, this discussion will return to cross-discipline testimony.

There are at least four reasons that this material is so important. An attorney may have (1) access to expert testimony from one discipline but not in another. (2) Experts are hard to find. The other reason is that the testimony which is sought may (3) not be forthcoming from an anticipated expert but another expert may “see the light.” Finally, medical negligence litigation is one area in law where disaster predictably strikes. An (4) expert becomes unavailable at the last minute and the trial lawyer needs a replacement. The attorney who is blind-sided by these evidentiary issues may find his case completely dismissed without an available remedy or, second worst, with a lengthy appeal.

Fed.R.Evid. 702

 

First, let us turn our attention to Fed.R.Evid. 702 which succinctly states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify [about that area or issue] … in the form of an opinion …

Notice that the Rule does not provide who may qualify as an expert witness, only that “a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify.” This leaves the decision of who may qualify in the hands of the trial court and, absent abuse of discretion, this decision will not be disturbed on appeal. The trial court’s decision to admit an expert witness is a big one. Let’s examine what contributes to the decision.

To Admit or Not to Admit; That is the Question

Two cases illustrate some of the important points here. In Ceaser v. Stiner,[1] following a rear-end collision and after a bench trial the trial court made an award and the defendant appealed on several points. The trial court excluded psychiatric testimony on the “effects of stress on the heart.”[2] The appellate court concluded that the trial court should have admitted this testimony and the objections should go to the “weight of the evidence rather than to its admissibility.”[3]

Further, the trial court did not permit a specialist in physical medicine and rehabilitation to testify on whether the patient would need surgery in the future.[4]

Physicians in physical medicine and rehabilitation are known as rehabilitation specialists and they do not perform surgery; to exclude this testimony was erroneous.

Here, the court concluded that the testimony of the PM&R physician also went to the effect or weight and not to the admissibility.

Huntoon v. TCI Cablevision of Colorado, Inc.,[5] illustrates the problem which arises when non-MD testimony is sought in a physical specialty. After a rear-end collision, plaintiff received a directed verdict on liability. The trial court then entered judgment on a jury verdict. The Supreme Court of Colorado held that a neuropsychologist is not per se unqualified to testify as expert on causation of organic brain injury and the trial court did not abuse its discretion in admitting causation testimony of the neuropsychologist proffered as expert by plaintiff.

Under Fed.R.Evid. 702 there is no requirement that a proffered expert witness hold a specific degree, training certificate, accreditation, or membership in professional organization in order to testify on a particular issue. The neuropsychologist testified that about the methodology employed by neuropsychologists[6] then gave his opinion on causation.

Here, the defendants objected since he was not a “medical doctor” and the opinion was one about “brain injury,” an area which defendant argued was a “physical manifestation.” The trial court sustained the objection on the basis of insufficient foundation. Plaintiff’s counsel then asked various questions which satisfied this defect and the doctor was allowed to give his opinion.[7]

This was a significant issue for all personal injury litigation in Colorado. The Colorado Supreme Court was concerned that the appellate court created a categorical exclusion of an entire profession, that neuropsychologists could not, as a matter of law,  express an opinion on organic brain dysfunction as opposed to cognitive defects.[8] To resolve this,  the high court concluded that a categorical exclusion was not proper and that “the propriety of such testimony is determined by using the same CRE 702 analysis applicable to all other experts.”[9]

There is a two-part analysis under Rule 702:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in  the form of an opinion or otherwise. Thus, a court must first determine whether the proffered expert testimony will be helpful to a trier of fact in the understanding of evidence or resolution of a fact at issue in the case. [citation omitted] A court must next review the qualifications of the witness, and determine whether a showing of “knowledge, skill, experience, training, or education” has been made sufficient to support testimony in the form of an expert opinion.  CRE 702. An expert opinion is helpful to the trier of fact if it embraces a relevant matter outside the understanding of the typical juror.  To a large extent, this aspect of CRE 702 involves an inquiry as to “whether the untrained [layperson] would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved.” [citation omitted]  A witness may be qualified by virtue of any one of the five factors specified in the rule.[10]

The court summed the credentials issue this way: “There is no requirement that a witness hold a specific degree, training certificate, accreditation, or membership in a professional organization, in order to testify on a particular issue.”[11]

Other courts have considered this important issue whether one discipline may testify in related fields. A case which represents the mirror image of the non-MD testifying on MD turf is the South Carolina case of Bellamy v. Payne.[12] The South Carolina appellate court held that an orthopedic surgeon does not have the necessary background to serve as an expert witness with respect to podiatric standards of care.

In this case, the patient sued two podiatrists and then used an orthopedic surgeon to testify on the crucial standard of care issues. While the qualification of an expert witness is within the sound discretion of the court[13] the appellate court would not upset the trial court’s discretion in the exclusion of this testimony.

The court reasoned this way:

[The orthopedist] … only kept up with podiatric literature on an annual basis, he had only seen twelve to fifteen patients treated by podiatrists in the last ten years, he had never attended a course given by podiatrists, he was not familiar with the standards of the American Academy of Ambulatory Foot Surgery or the American College of Podiatric Foot Surgeons, and he had never seen a podiatrist actually perform any foot surgery.  In brief, [the orthopedic surgeon] … failed to demonstrate to the satisfaction of the trial court his familiarity with the diagnostic, surgical, and treatment procedures employed by podiatrists.[14]

Presumably, had the orthopedist been more familiar with podiatry, with the standards of care, he would then have been admitted to testify. For instance, suppose the orthopedist would have taught podiatrists, given continuing medical education courses, or taught in a podiatric clinic or school, he would then know the standard of care and would have then been admitted as an expert witness to testify on the podiatric standards of care.

The bottom-line is that this cross-profession testimony remains a close call but what is vital is that there is sufficient foundation to lay the testimony. In Scales v. Swill,[15] a personal injury suit, the trial court ordered the plaintiff to submit to an independent medical examination and denied plaintiff’s motion to strike the examiner as a witness. The plaintiff objected to this IME since he had already been examined by a chiropractor and to submit to this examination required him to travel to an adjacent county for the examination. The appellate court would not disturb this decision since “[i]n light of the fact that orthopedic doctors and chiropractors are not synonymous in training or expertise.”[16] In this case the court readily distinguished the “pecking order” between orthopedic surgery and chiropractic.

In a medical malpractice case concerning the death of a child due to substandard emergency transportation, the plaintiff failed to find an expert witness who would support their case.[17] The plaintiff wanted to use non-physicians, a neonatal intensive care nurse and two witnesses knowledgeable about emergency medical services, to raise a jury question in response to a summary judgment. The trial court, in granting the defendant’s motion, would not permit the lay witnesses to testify on causation since that testimony would exceed their expertise. West Virginia code requires, in a medical negligence action, testimony “of one or more knowledgeable, competent expert witnesses ….”[18]

The Rule 702 interpretation stated that the non-MD witnesses could testify about emergency transport but NOT on the issue of causation. While it is within the discretion of the court to admit expert witnesses, nurses are not qualified to give opinions on medical matters. Citing another case, the West Virginia Supreme Court of Appeals stated: “Although a nurse may well be trained in the proper location to administer  injections, we are not persuaded that a nurse is qualified to opine as to nerve damage caused by an allegedly improper injection.”[19] The trial court “acted within its discretion in determining that the nurse and the two other witnesses disclosed by the appellants were not qualified upon those matters.”[20]

It should be noted that the court granted the plaintiff additional time to obtain a physician to testify and even upon entry of the summary judgment, the court stated that the plaintiff could file a motion to reconsider if they found an expert witness who would qualify but they never found an expert witness to support the case. Presumably, following this analysis, a chiropractor would not be permitted to testify in areas which are wholly medical; causation, for instance.

Dolen v. St. Mary’s Hospital of Huntington, Inc.[21] arose as a medical negligence case where the defendants obtained a summary judgment. The plaintiff alleged that an emergency room doctor and a radiologist negligently treated a patient who sustained a jaw fracture. The trial court ruled that an oral surgeon, not an MD,[22] was not qualified to offer such an opinion. However, the West Virginia Supreme Court of Appeals reversed the trial court.

Here, the expert witness was a dentist and an oral surgeon. The Court ruled that the oral surgeon was qualified by knowledge, skill, experience, training, or education; the elements of Rule 702. But there is no “best expert rule.”[23] In concluding that the trial court abused its discretion the Court reasoned this way:

[The oral surgeon] received a degree in dental surgery, a master’s degree in biological science with a concentration in oral surgery from the Mayo Graduate School of Medicine, and had practiced since at least 1984 in the fields of oral and maxillofacial surgery.  [He] … had been granted privileges to perform oral surgery at defendant … Hospital. [The oral surgeon] … testified in his deposition that he held himself out as an expert in the management of trauma to the jaw, that he had diagnosed over 600 broken jaws by panorex radiograph, and that the management of fractures in the jaw region were within the scope of his practice at [this] … hospital.  Furthermore, [the witness] …  testified that he had reviewed more than 30,000 panorex radiographs since leaving the Mayo Clinic. … [I]t is apparent that [the oral surgeon] …  (a) had substantial educational and experiential

qualifications relating to jaw fractures;  (b) that his field of expertise is relevant to the diagnosis by panorex radiograph and the treatment of fractures to the jaw;  and (c) this expertise will assist the trier of fact.  Second, this expertise relates to the expected testimony by  [the expert witness] …   that the defendants were negligent in their diagnosis and treatment of the plaintiff’s broken jaw.[24]

In a dissent opinion, Justice Maynard raised the slippery-slope concern:

Will we allow registered nurses to give expert testimony against physicians?  Because they have more knowledge than the general public about medical matters, they qualify as an expert witness under the majority opinion.  Can a chiropractor now testify against an orthopedic surgeon?  Chiropractors have greater knowledge and would apparently qualify as expert witnesses.  What about podiatrists?  What about emergency medical technicians?  What about allowing midwives, who are licensed in West Virginia, to testify against obstetricians?[25]

Although there is no “best expert witness” rule, no expert witness is worse than a cross-profession witness since without a witness support, the case will be dismissed. How close to the line may a lawyer tread, so to speak?

Restrictive Statutes: Florida and Virginia

Since Florida and Virginia are two states with restrictive statues their cases are instructive to review as examples.

Florida

In Meyer v. Caruso,[26] the trial court struck the testimony of the plaintiff’s only expert in a medical negligence case and then directed a verdict in favor of the defendant. Here, the appellate court reversed. The lessons are important. The expert witness was Barry Singer, MD who testified on the standard of care issues in the case concerning the failure to adequately diagnose and treat cancer. Both sides listed Dr. Singer as an expert witness!

At trial, the defendant tried to have Dr. Singer excluded merely on the basis that he was a “frequent flyer” in medical negligence cases as an expert witness.[27] This ambit was unsuccessful. The next tactic was to pursue the qualifications. In this regard, Florida has a very restrictive statute on the production of specialists in medical negligence litigation which states:

If the health care provider whose negligence is claimed to have created the cause of action is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself or herself out as a specialist, a similar health care provider’ is one who: 1. Is trained and experienced in the same specialty; and 2. Is certified by the appropriate American board in the same specialty.[28]

In this particular case, the defendant was an gynecology-oncology surgeon,[29] Dr. Singer was a Board Certified Hematologist and Oncologist.[30] In terms of meeting the requirements of the statute, was he a “similar health care provider?”

Dr. Singer …  had never been board certified in any area of surgery or obstetrics. No court has ever accepted him as an expert in gynecology, obstetrics or gynecologic oncology. … never having any continuing education in gynecology. He …  does not perform radical hysterectomies or …  surgery of any kind. … does not practice in follow up gynecological care. …  does not initially diagnose cervical cancer.… has not published in the field of cervical cancer.… [Does no] consider himself an expert in gynecological oncology because he is not board certified in that specific area.…  would not see surgical patients who have not yet developed metastatic disease. …  would not follow up a gynecological surgery patient through radiation.[31]

On the other hand, he was familiar with the standards for follow-up oncological care of cancer patients “who have undergone radical hysterectomies and radiation treatment. While he does not do pelvic exams, he does know what these oncology patients require in such follow up care. He emphasized that he was the Chairman of the Tumor Board at the hospital for 15 years and thus dealt with all kinds of cancers.”[32] Defendant presented numerous problems Dr. Singer had with prior statements made to other courts.[33]

Cutting through the chaff of Dr. Singer’s background issues and the “cottage industry” of expert witnesses[34] the appellate court noted the three requirements “concerning the admissibility of expert opinion evidence …  (1) that the opinion evidence be helpful to the trier of fact; (2) that the witness be qualified as an expert; and (3) that the opinion evidence can be applied to evidence offered at trial.”[35]

The policy of admitting this evidence is a “liberal policy” rather than an exclusionary one.[36] Further, Florida statute added a fourth test which would bar evidence which, although technically relevant, presents a danger of unfair prejudice which would outweigh its probative value.[37] Here, then, the appellate court determined that the trial court applied “erroneous legal principles” in its analysis and reversed.[38]

What court’s will seek are facts which show a unity in knowledge and in decision-making analyses not an absolute congruity of background, skills, training, or experience.[39]

Note that Board certifications are not dispositive[40] under the Florida statute 766.102 and there is NO requirement that that either side produce “identically credentialled practitioner[s].”[41]

Virginia

The Virginia Supreme Court case of Fairfax Hospital System, Inc. v. Curtis,[42] arose after the death of a neonate in the neonatal I.C.U..[43] The trial court excluded the testimony of the defendant’s witness, a professor of pediatrics and the director of a pediatric I.C.U. who had been active in practice up to within one year of the date of the occurrence. In Virginia, an expert witness who is “familiar with the statewide standard of care shall not have his testimony excluded” merely because he does not practice in Virginia.[44]

The Virginia requirement is that the expert witness shall be permitted to testify if he “demonstrates expert knowledge of the standards of the defendant’s specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant’s specialty or a related field of medicine within one year of the date of the alleged” occurrence.[45]

In Griffett v. Ryan,[46] a medical negligence case, the plaintiffs won but the court set aside the verdict. The case concerned the misdiagnosis and delay of lung cancer resulting in premature death. The defendants objected that the plaintiff’s expert witness was unqualified to render an opinion on causation. Here the Virginia Supreme Court disagreed with the trial court and reversed. This expert witness was licensed in D.C, Virginia, and in Maryland. He was Board Certified in internal medicine and taught at Georgetown University. In addition, he diagnosed patients who had cancer.[47] The defendant was a gastroenterologist. The field of care was that of internal medicine and, since both were internists, the witness was qualified under Va. Code Ann. § 8.01-581.20.[48]

The statute states, in relevant part:

Any physician who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of medicine in which he is qualified and certified. This presumption shall also apply to any physician who is licensed in some other state of the United States and meets the educational and examination requirements for licensure in Virginia.[49]

Noting the unity between a gastroenterologist who would diagnose cancer and an internist who would do the same, the Court concluded “We do not believe that the duty to review an x-ray contained in a patient’s medical record should vary between an internist and a gastroenterologist.”[50]

Once the plaintiff established that Dr. Muller was licensed to practice in Virginia and, therefore, entitled to the statutory presumption of possessing knowledge of the statewide standard of care in the field of medicine in which he is qualified, the burden shifted to the defendants to show that the standard of care imposed upon a gastroenterologist did not require that gastroenterologist to review chest x-rays in the patient’s hospital record.[51]

Henning v. Thomas[52] was a case where a woman sustained a permanent leg paralysis from injury to the peroneal nerve when she developed anterior compartment syndrome. She elicited testimony from an orthopedic surgeon who was then employed as the Medical Director for Aetna Life and Casualty Insurance Company.[53] The defense tried to exclude him on the basis that he did no know the Virginia standard of care but he testified that the medical case involved a national standard of care.[54]

The Virginia statute was changed after Bly v. Rhoads,[55] and Virginia enacted Va. Code Ann. § 8.01-581.20. Virginia adopted a statewide standard and rejected a national standard.[56] The expert witness must testify that he does have a familiarity with the Virginia standard: this is absolutely crucial. This familiarity must derive from study or experience or both.[57] The expert witness qualified in this case by stating that

… he attended meetings and seminars on the subject of knee surgery where various Virginia orthopedic surgeons were also present.… one of the professors of orthopedic surgery at the Medical College of Virginia had been one of his residents when [he] … was at Vanderbilt.  He …  subscribes to and reads the Journal of Bone and Joint Surgery, which he described as the standard reference journal for the specialty.  He said that there are no state medical specialty journals. … [A]s a professor, he taught orthopedic surgery to students who might start their practice in any state in the union and that, as far as he was aware, no state had any additional or special requirements as a prerequisite to practicing orthopedic surgery.[58]

Further, the witness had conferred with physicians in Virginia who agreed with his analysis in the case. The court admitted this expert witness’ testimony and this was sustained on appeal.

Just recently the Alabama Supreme Court decided a case which sends some shivers about the construction of some statutes. In Johnson v. Price,[59] the Alabama Supreme Court struck the testimony of an allopathic physician as an expert witness against the defendant, an osteopath under the 1996 amendment Ala.Code 1975 § 6-5-548(e) (1996). The court considered the very narrow, and excruciatingly vital issue: whether the statute requires that a health-care provider who testifies as to the standard of care for a “similarly situated health care provider” be certified by the very same board as the defendant health-care provider? The trial court ruled that the difference in certification was sufficient to prevent the expert witness from testifying. The defendant was certified by the American Osteopathic Board of Surgery and the expert witness was certified by the American Board of Surgery.[60]

Here, section 6-5-548(e) read:

The purpose of this section is to establish a relative standard of care for health care providers. A health care provider may  testify as an expert witness in any action for injury or damages against another health care provider based on a breach of the standard of care only if he or she is a ‘similarly situated health care provider’ as defined above. It is the intent of the Legislature that in the event the defendant health care provider is certified by an appropriate American board or in a particular specialty and is practicing that specialty at the time of the alleged breach of the standard of care, a health care provider may testify as an expert witness with respect to an alleged breach of the standard of care in any action for injury, damages or wrongful death against another health care provider only if he or she is certified by the same American board in the same specialty.[61]

The Court resisted judicial legislation and construed the statute according to its plain meaning, where

[w]ords used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect.[62]

Notice the phrase: “only if he or she is certified by the same American board in the same specialty.”[63]

These are clearly not the same organization. The fact that they may have the same purpose, that they may certify providers for the same procedures, or that they may require the same qualifications would be irrelevant. Section 6-5-548(e) plainly states that if the two providers are not certified by the same organization, then one cannot testify as to the standard of care applicable to the other. All questions of propriety, wisdom, necessity, utility, and expediency of legislation are exclusively for the Legislature and are questions with which this Court has no concern. This principle is embraced within the simple statement that the only question for this Court to decide is one of legislative power.[64]

Conclusion

It is not Board Certification in the same field nor even practicing in the same field which will automatically permit one expert to qualify as an expert witness in a case but rather the unity of “doing” that which is in question. It is clear that cross-professional testimony will not be permitted where one discipline does not engage in similar responsibilities or enter into the same professional analysis with respect to patient care. Courts will permit a non-surgical specialist to testify in areas of surgery where the issue is not surgery but rather the decision-making process leading up to surgery or in post-surgical skills. It is important for trial lawyers to anticipate these issues and to intimately know their respective state statutes.

For trial lawyers everywhere, the main opposition to most expert witness testimony is the lack of qualification, that the proponent’s expert witness is not sufficiently similar to the defendant. In some cases the defense will wait until the moment of trial, hoping to strain the plaintiff’s nerves and resources. In other cases, the defense will file a motion to exclude the testimony. If inexperienced in medical negligence litigation the wily and nimble trial lawyer may not “see it coming” but, if he knows the principles he may artfully and vigorously respond to the challenges.

Finally, beware of strict statutory constructions and have alternate witnesses available for trial if necessary. Do not anticipate that opposing counsel or a judge will “give you a break” when you most need it — she probably will not.

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