Tag: Expert

Disciplinary Proceedings Against Experts Testifying in Medical Malpractice Cases

astein 1 Comment

By Alex Stein

Witnesses have a general immunity against private suits in connection with their testimony (Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983)). Perjury prosecution is their only fear. For expert witnesses testifying about their opinions rather than empirical facts, perjury prosecution is not even a viable prospect. Doctors testifying as experts in malpractice suits filed against their professional peers, however, may face disciplinary proceedings in medical associations to which they affiliate. The consequences of those proceedings for doctors can be quite devastating. They include expulsion and loss of job opportunities. Moreover, a negative finding against a doctor can impeach her as an expert witness in a subsequent court proceeding, which will make lawyers reluctant to retain her as an expert in the first place.

Yet, the only protection that those doctors get from the law is basic due process. All they are entitled to as defendants before their professional disciplinary board is a notice about the complaints or charges and the right to be heard and present evidence. Worse yet, violation of this basic due process right does not entitle the doctor to void the negative disciplinary finding automatically.

The recent Fifth Circuit decision, Barrash v. American Ass’n of Neurological Surgeons, Inc., — F.3d —- (5th Cir. 2016), 2016 WL 374134, is a case in point. Read More

Medical Publications as Evidence

astein Leave a comment

By Alex Stein

Whether a medical publication – a book or an article – can be used in court as evidence for its truth is determined by the “learned treatise” exception to the hearsay rule. This exception provides that a court can admit into evidence an excerpt from a treatise or periodical when it “is called to the attention of an expert witness on cross-examination or relied on by the expert on direct examination” and when “the publication is established as a reliable authority by the expert’s admission or testimony, by another expert’s testimony, or by judicial notice.”  Federal Rule of Evidence 803(18) and its state equivalents.

The Supreme Judicial Court of Massachusetts has recently narrowed this exception.  Read More

MISTAKE ≠ MALPRACTICE

astein 3 Comments

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

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

astein Leave a comment

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

Medical Malpractice Law as a Triumph of Procedure Over Substance

astein Leave a comment

By Alex Stein

When Sir Henry Maine wrote (here, on page 389) that early substantive law was “secreted in the interstices of procedure,” he did not know that he was coining a long-lasting adage. Even less did he anticipate that this adage will aptly describe our today’s system of medical malpractice.

This system normally requires plaintiffs to accompany their suits with an affidavit or certificate of merit from an eligible medical expert. The expert must show that s/he practices medicine in the same field or specialty as the defendant doctor and is familiar with the standards, protocols and procedures followed by physicians working in that field or specialty (in some jurisdictions, the expert only needs to satisfy the familiarity condition). The expert also must identify the malpractice: the defendant’ deviation from one of those standards, protocols or procedures. Finally, the expert must certify that there is a reasonable medical possibility that the defendant’s malpractice has injured the plaintiff or aggravated her condition. When a plaintiff fails to submit an affidavit that satisfies this checklist requirement, the court must dismiss her suit. The checklist requirement thus creates a “safe harbor” for doctors who go by the rules and blocks away unmeritorious suits. For details, see here.

The Supreme Court of Idaho has recently taken the checklist requirement to its extreme. This unfortunate development took place in Hall v. Rocky Mountain Emergency Physicians,— P.3d —-, 2013 WL 4768310 (Idaho 2013). Read More