The “Common Knowledge” Exception to the Expert Requirement in Medical Malpractice Actions under FTCA Categorized as “Substantive”

By Alex Stein

All expert requirements for medical malpractice actions (including merit certificates and affidavits) are categorized as “substantive” rather than “procedural” under both Erie (in diversity suits) and the Federal Tort Claims Act (FTCA). See here and here. The Fifth Circuit recently ruled in connection with a medical malpractice suit filed under FTCA that the “common knowledge” exception to the expert testimony requirement is “substantive” as well. Bush v. United States — F.3d —- 2015 WL 5472491 (5th Cir. 2015) (hereinafter: Bush). State law (Virginia law, in Bush) consequently trumps the federal law of evidence and procedure. Read More

Medical Malpractice: The “Same Specialty” Requirement in Federal Courts

By Alex Stein

Medical malpractice suits reach federal courts through two channels: diversity and the Federal Tort Claims Act (FTCA). The FTCA framework was set up (inter alia) for suits against doctors working at veterans hospitals or another facility operated by the federal government. The diversity framework was designed for parties residing in different states. Under both frameworks, duty of care, negligence and all other substantive issues are determined by applicable state law. Federal law, on the other hand, controls every procedural and evidentiary issue. For FTCA, this rule was established in 28 U.S.C. § 2674; see, e.g., Gil v. Reed, 535 F.3d 551, 558 n.2 (7th Cir. 2008) (citing Arpin v. United States, 521 F.3d 769, 776 (7th Cir. 2008)). For diversity litigation, this rule was established by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

This rule is very clear. Far less clear, however, are the lines separating “substance” from “procedure.”

Many states have established the “same specialty” requirement for expert witnesses testifying about medical malpractice. Under this requirement, an expert witness must practice medicine in the same specialty as the defendant doctor. Failure to satisfy this requirement disqualifies the witness. Her testimony about the duty of care owed by the defendant to his patient becomes inadmissible. This requirement has led to fierce controversies that state courts have resolved in different ways: see here, here, here, here, and here.

How will it play out in a federal court? Read More