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

MISTAKE ≠ MALPRACTICE

By Alex Stein

Every lawyer with some experience in medical malpractice knows that a doctor’s mistake in diagnosing or treating a patient does not necessarily amount to negligence. Doctors sometimes make mistakes that are unavoidable or just reasonable, given the constraints under which they treat patients. For that reason, a patient would be ill-advised to sue her doctor on the mistake theory. Doing so could be a very serious mistake.

Valence v. Jefferson Parish Hosp. Dist. — So.3d —-, 2013 WL 5849724 (La. App. 5 Cir. 2013), provides a textbook illustration of that point. Read More