Courts Upholding Expert Witness Requirements
Trend is toward physician-witnesses being 'real' doctors
By Robert A. Bitterman, MD, JD, FACEP, Contributing Editor
Long ago, one of my mentors staunchly opined that "only a 'real doctor' should be allowed to testify that a 'real doctor' breached the standard of care." Two recent high-level court decisions upholding tort state reforms bring us closer to that reality, i.e., requiring the plaintiff's physician expert to actually practice medicine in order to testify in a medical malpractice lawsuit.
Arizona Supreme Court
In the case of Seisinger v. Siebel, the Arizona Supreme Court addressed whether the state's expert witness statute was constitutional.1 The Arizona legislature had enacted a statute requiring physician expert witnesses testifying on the issue of standard of care in medical malpractice claims to have devoted a majority of their professional time in the year before the case actively practicing or teaching in the same specialty as the defendant.2 The law also required the testifying expert to be board-certified in the same specialty as the defendant.2
The statute was determined to be unconstitutional by a lower Arizona appellate court because it conflicted with the judiciary's rules of evidence which provided that "a witness qualified as an expert by knowledge, skill, experience, training, or education" may provide testimony that "will assist the trier of fact to understand the evidence or to determine a fact in issue."3,4 It noted that Arizona courts applying this long-standing rule of evidence routinely allowed experts to render opinions in malpractice cases even if not practicing in the same specialty as the defendant and regardless of board certification status. Furthermore, the appellate court concluded the statute would disqualify experts who have the requisite knowledge and experience to judge a defendant physician's conduct. In the view of the appellate court, the expert's specialty or lack of board certification may affect the expert's credibility, but could not be used to entirely exclude the expert's testimony on the merits of the case.3
The Arizona Supreme Court agreed with the appellate court that the statute conflicted with its own court rules of evidence; however, it decided that the legislature had the power to change the substantive aspects of malpractice law. The court viewed the statute as governing the proof of the standard of care in medical malpractice cases, and that the legislature is empowered to set burdens of proof as a matter of substantive law. This, it held that a "valid statute specifying the burden of proof prevails over common law or court rules adopting a different standard."1,5
The Arizona statute was clearly designed to limit which physicians were qualified to express expert opinions. As one of the co-sponsors of the measure stated, "physicians do not want retired physicians to testify against them."6 The court held that the legislature had the power to address what it believed to be a serious substantive problem-the effects on public health of increased medical malpractice insurance rates and the reluctance of qualified physicians to practice in Arizona-by effectively increasing the plaintiff's burden of proof in medical malpractice actions.1
The court pointed out that if the legislature could exclude highly relevant evidence through peer-review laws or privilege statutes, such as the patient-physician privilege, then it could certainly limit the type of expert testimony allowed to be presented at trial.1 Similarly, if the courts allowed only physician expert witnesses to establish the requisite standard of care (excluding nurses or other health care professionals), then the legislature could determine which physicians were qualified to set that standard of care.1
Kansas Appellate Court
The case of Schlaikjer v. Kaplan challenged the constitutionality of a Kansas expert witness statute similar to that in Arizona.7 The Kansas statute requires experts who testify regarding the standard of care in medical malpractice actions to have devoted at least 50% of their professional time in the two years before the alleged malpractice to clinical practice in the same profession as the defendant.8
Kansas law, however, is different than the Arizona law in two respects: it does not require that the expert witness practice in the same medical specialty as the defendant, nor does it require the expert to be board certified if the defendant is board-certified.8,9
The court rejected the plaintiff's constitutional challenge on the basis that the expert witness requirement was rationally related to the legitimate goal of preventing professional witnesses from testifying in medical malpractice cases. The law did not prevent patients from seeking legal redress; it just regulated who could provide evidence on their behalf when suing for medical malpractice.7
Furthermore, the court concluded that any physician who offers an opinion regarding the standard of care in a medical malpractice case is an expert witness subject to the statute requiring active clinical practice. Thus, the court held that the state statutory requirement applies to treating physicians as well as the usual retained experts.7
Other States
A few other states also have passed some variation of the "actively practicing" rule for medical experts to prevent unqualified experts from testifying in medical malpractice cases. In Tennessee, for example, the physician expert must have practiced in the same specialty as the defendant at least some time in the year preceding the medical event in question.10 North Carolina has a similar requirement.11 In Texas, the expert must be "actively practicing medicine and rendering medical care services relevant to the claim . at the time the claim arose or at the time the testimony is given."12,13 Georgia requires "active practice . of his or her profession for at least three of the last five years."14 Georgia also, in keeping with the theme of the Arizona and Kansas cases, requires the expert to possess "actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given ."14
Federal Rules Pre-empt State Requirements
A state's expert witness rules do not apply, however, if the plaintiff can sue under federal law, specifically the Emergency Medical Treatment and Active Labor Act (EMTALA). EMTALA allows the plaintiffs to "obtain those damages available for personal injury under the law of the State in which the hospital is located ."15 However, the federal law contains a preemption clause, which states that EMTALA preempts any state or local law requirement that directly conflicts with one of its requirements.16 Therefore, the more stringent expert witness qualifications enacted by state legislatures will not apply to cases heard in federal court, where instead the more liberal federal expert witness rules apply.17 As a consequence, the board certification rule of Arizona (and Michigan which has a similar law);18 the "same specialty" rules of North Carolina, Tennessee, and Georgia; and the "actively practicing" rules of Kansas, Texas, North Carolina, and Tennessee and all other state expert witness qualifications are not applicable in EMTALA claims. Instead, the retired cardiologist from California can testify that the residency- trained, board-certified, actively-practicing emergency physician in Michigan negligently managed a multiple trauma patient in the ED.
Summary
It is right and just that physicians be judged by their peers who are doing exactly what they are doing on a day-to-day basis-actually practicing or teaching the profession of medicine-instead of performing as a professional witness. The legislatures appear to understand these issues more as time progresses, particularly in today's climate of "health care reform." Hospitals and physicians can only hope that the courts will uphold the tort reform efforts of the states, so in fact only a "real doctor" is allowed to testify against a "real doctor."
References
1. Seisinger v. Siebel, No. CV-08-0224-PR (Ariz. 2009).
2. A.R.S. § 12-2604(A).
3. Seisinger v. Siebel, 195 P.3d 200 (Ariz. Ct. App. 2008).
4. Arizona Rule of Evidence 702.
5. Seisinger v. Siebel, No. CV-08-0224-PR (Ariz. March 13, 2009) (quoting itself from the case of Valerie M. v. Ariz. Dept. of Econ. Sec. 198 P3d 1203 (Ariz. 2009); see also State v. Fletcher, 717 P2d 866 (Ariz. 1986)).
6. Hearing on Ariz. S.B. 1036 before the H. Comm. on Health, 47th Leg., 1st Reg. Sess. (Ariz. Mar. 23, 2005) (statement of Sen. Robert Cannell, co-sponsor of measure containing § 12-2604(A).)
7. Schlaikjer v. Kaplan, No. 98,932 (Kan. Ct. App. Dec. 5, 2008).
8. Kan. Stat. Ann. § 60-3412 (1994).
9. See Glassman v. Costello, 986 P2d 1050 (Kan. 1999).
10. Tenn. Code Ann. § 29-26-115(b) (2006).
11. N.C. Gen. Stat. § 1A-1, Rule 9(j). N.C. Gen. Stat. § 8C- 1, Rule 702(b)(1) (2006).
12. Tex. Civ. Prac. & Rem. Code Ann. § 74.401(c)(2).
13. Larson v. Downing, 197 SW3d 303 (Texas 2006).
14. Official Code Ga. Ann. 24-9-67.1(c) (2005).
15. 42 USC 1395dd(d)(2)(A).
16. 42 USC 1395dd(f).
17. Federal Rules of Evidence (F.R.E.), Rule 702.
18. MCL 600.2169(1)(a). See Halloran v Bhan, 683 NW2d 129 (Mich. 2004).
Long ago, one of my mentors staunchly opined that "only a 'real doctor' should be allowed to testify that a 'real doctor' breached the standard of care." Two recent high-level court decisions upholding tort state reforms bring us closer to that reality, i.e., requiring the plaintiff's physician expert to actually practice medicine in order to testify in a medical malpractice lawsuit.You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content