Qualifying the expert witness

W ilson v Pandey , No. CCB-09-01687, US Dist Ct (Md) 2011, is interesting in that it enlightens us about 1 aspect of a trial court judge’s duty to qualify an expert witness. Section 3-2A-02(c)(1) of the Maryland Code (many other states have similar laws) deals with a qualification for someone wishing to testify as an expert witness. It reads as follows.

In any action for damages filed under this subtitle, the healthcare provider is not liable for the payment of damages unless it is established that the care given by the healthcare provider is not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.

In this malpractice case, the defendant doctor’s attorney (DDA) was arguing that the testimony of the plaintiff’s expert witness (EXP) should not be allowed because he was not familiar with the standards of care relative to the small local community in which the alleged negligence took place. At the deposition of the plaintiff’s expert, the following testimony was given.

  • DDA: Now, Doctor, you are licensed, as you indicated, only to practice in the State of New York; correct?

  • EXP: Correct.

  • DDA: You are not familiar with the Cumberland, Maryland, medical community; correct?

  • EXP: There is no need to be.

  • DDA: You’ve not done any research on the Cumberland medical community; correct?

  • EXP: No. My knowledge is in urology and what’s considered appropriate care and what’s not.

  • DDA: You’ve not done anything to look at the demographics of the Western Maryland Health System; correct?

  • EXP: I don’t see that they have any relevance to medical urologic care.

  • DDA: You’ve not done anything to familiarize yourself with the Western Maryland Health System itself; correct?

  • EXP: I felt it was not necessary.

  • DDA: You’ve never practiced in the State of Maryland, true?

  • EXP: Well, you know the answer to that.

  • DDA: Well, am I correct that you’ve never practiced in the State of Maryland?

  • EXP: That’s correct.

  • DDA: Never had a license in the State of Maryland?

  • EXP: No, I have not.

  • DDA: You don’t have any colleagues located in Cumberland, Maryland; correct?

  • EXP: No, I don’t.

  • DDA: So you have no personal knowledge of the medical community as it exists in Cumberland, Maryland?

  • EXP: I don’t.

The plaintiff’s counsel (PC) saw where the defendant’s counsel was going; he was laying the groundwork to have the plaintiff’s expert disqualified because he was not familiar with the local community standards of practice. Laying his own groundwork to counter such an action, the plaintiff’s attorney asked his expert witness the following questions regarding the standard of care.

  • PC: The expression standard of care, what does that typically mean in a malpractice case like this?

  • EXP: The standard of care means that what most competent—I don’t mean most competent—the majority of competent urologists would do in a situation given a certain disease entity. What is the proper care for this condition? That is the standard of care.

The defendant’s attorney then countered with these follow-up questions.

  • DDA: Let me ask you, are you familiar with the expression of standard of care?

  • EXP: Yes, I am.

  • DDA: In urology, is there a national standard of care?

  • EXP: There certainly is.

  • DDA: Can you tell me what that is and how that would apply in New York vs Western Maryland?

  • EXP: Well, I have never heard that urology standards change based on the community. Where the urology is being delivered. So this is something new to me. And in conditions where, especially with cancer, there are criteria and standards of what is appropriate and what is not, and I can’t imagine that because a patient is in a smaller hospital in a more rural area that he or she should be not entitled or should not receive the level of care that a patient anywhere else in that state or in this country should get.

  • DDA: [Doctor, are you] familiar with the guideline for management of clinical T1 renal masses?

  • EXP: I am.

  • DDA: It’s published by the American Urological Association?

  • EXP: It is.

The implication derived from this portion of the testimony was that there is a national standard of care for the treatment of the plaintiff’s condition as opposed to a local standard.

In fashioning its ruling that the expert was indeed qualified to testify, the court looked at Rule 702 of the Federal Rules of Evidence. It states that an expert’s testimony is admissible as long as (1) “scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue,” (2) the witness is “qualified as an expert by knowledge, skill, experience, training, or education,” (3) “the testimony is based upon sufficient facts or data,” (4) “the testimony is the product of reliable principles and methods,” and (5) “the witness has applied the principles and methods reliably to the facts of the case.”

Given the testimony of the expert when applied to Rule 702, the court found that the plaintiff’s expert’s testimony satisfied the rule. The expert opined that “in his view, urology standards do not change based on the community where the medical service is delivered.” The expert also explained that there are “national criteria as to what is appropriate and that these do not vary from one locale to another.” He also stated the “reasons that led him to conclude that Dr. Pandey’s decisions were outside the standard of care.”

The district court noted that prior Maryland case law stated that “Whatever may have justified the strict locality rule fifty or a hundred years ago, it cannot be reconciled with the realities of medical practice today.” The rationale for that statement was the existence of a national accrediting system that has essentially standardized the curriculums of medical schools throughout the country. The district court continued to quote prior appellate-level case law in Maryland, stating the following.

Were we to adopt the standard tied to locality for specialists, we would clearly be ignoring the realities of medical life. As we have indicated, the various specialties have established uniform requirements for certification. . . . We agree . . . that justification for the locality rules no longer exists. The modern physician bears little resemblance to his predecessors. . . . In sum, the traditional locality rules no longer fit the present-day medical malpractice case. (cit. omit.)

The precedential cases from the Maryland appellate courts were the basis for the Maryland Supreme Court’s decision that a hybrid between the locality rule and a national standard was the preferred expression of what the law in Maryland should be, by stating the following.

[A] physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances. . . . Under this standard, advances in the profession, availability of facilities, specialization or general practice, proximity of specialists and special facilities, together with all other relevant considerations, are to be taken into account.

The court also elaborated that the same hybrid standard should apply to hospitals as well as physicians, by stating the following.

[A] hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances, based on national standards to which all hospitals seeking accreditation must conform. (cit. omit.)

Commentary

This case is a good example of a court’s response to some of the realities associated with contemporary medical practice. The court recognized that almost all medical care (and dental, too) should be governed by a national standard of care, especially for specialists, and that this view is becoming more common. The reality of it is that teeth don’t move differently if they are closer to or farther from the equator, the north or south poles, or any other geographic parameter you choose. They don’t move any differently if the patient does or does not drink fluoridated water, or whether the patient likes to eat Boston baked beans, shrimp and grits, Texas toast, or any ethnically and geographically based foods. The court recognized that, as far as specialists are concerned, there is only 1 standard of care, because the bottom line is that there is 1 level of standardized training for all of us.

Now it’s time for state legislatures and their boards of dentistry to catch up. If our training is nationally standardized, then there is no reason that a doctor’s license should not be portable. If a doctor can move teeth well enough to have a specialty license in state A, then he or she should be able to move to and practice this specialty in state B without having to take an examination in that state. In addition, some states require specialists to pass an examination in general dentistry, something that the doctor might not have done in 20+ years to practice in a specialty for which no examination is given. I know, it’s a state’s rights issue. Although I agree with the concept in principle, using that right to practice economic protectionism just seems to fly in face of rationality.

Turning back to the case at hand, if you choose to become an expert witness, for which side is irrelevant, it might behoove you to familiarize yourself, or at least to have the attorney with whom you have contracted to render the service familiarize himself or herself, with the peculiarities of a particular state’s statutes relating to whether you will qualify as an expert. I have provided services as an expert in about half a dozen states, and the qualifications for each were different.

The reality is that, whereas the politics might be different from state to state, orthodontics is the same.

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Apr 8, 2017 | Posted by in Orthodontics | Comments Off on Qualifying the expert witness
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