Physicians need to be aware that each state is unique in how it regulates medical expert witnesses, says Holly Miller, Esq., governmental affairs counsel for the Florida Medical Association.
"Most states have their own set of expert witness rules, which may not protect defendant physicians," says Miller.
For example, Florida law now requires that an expert witness in a medical malpractice suit be of the "same" specialty as a defendant physician. Before the law was passed in 2013, the requirement stated that experts needed to be in the "same or similar" specialty.
"Florida courts' interpretation of this 'or similar' designation was problematic," says Miller. "It led to plaintiffs' attorneys using this loophole to convince the courts to allow general surgeons to testify against neurologists and gastroenterologists to testify against hospitalists, and so on."
Physician specialties vary considerably in terms of education, training, and specific standards of care. "It is patently unfair to the defendant physician, and misleading to juries, to permit expert witnesses from one specialty to testify against a physician practicing in another specialty regarding the proper standard of care," argues Miller.
Courts sometimes make exceptions
While the general rule in many states is that the testifying expert has to be from the same specialty as the physician defendant, courts sometimes will make exceptions, says Thomas R. McLean, MD, JD, CEO of American Medical Litigation Support Services in Shawnee, KS.
McLean was an expert witness in a malpractice case involving a board-certified pediatric surgeon, and the opposing side argued that he should be disqualified because he was board-certified in general surgery. "In that particular case, the judge ruled that I could testify, since the case involved an issue of postoperative care which was common to both areas," he says.
It would have been difficult for the other side to find a board-certified pediatric surgeon to testify because of the scarcity of physicians in that particular subspecialty, he adds. In another case, an expert was allowed to testify despite not being licensed in Tennessee, thus circumventing a requirement for experts to be familiar with the practice of medicine in that state. The expert was allowed to testify because evidence showed he practiced in a rural setting very similar to that of the physician defendant.
While exceptions are made, says McLean, "you have to have a good argument for why there are special circumstances." (See related story, below, on other expert witness requirements.)
- B. Sonny Bal, MD, JD, MBA, Professor of Orthopaedic Surgery, University of Missouri School of Medicine, Columbia. Phone: (573) 882-6762. Fax: (573) 882-8200. Email: BalB@health.missouri.edu.
- Thomas R. McLean, MD, JD, American Medical Litigation Support Services, Shawnee, KS. Phone: (913) 526-5526. Email: firstname.lastname@example.org.