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Unlike standards for most non-professional skills like driving a car - where laws establish the rules of the road, and a lay juror is deemed capable of determining when they have been violated - the law generally delegates the setting of detailed professional standards to members of various professions. Medical practice (or malpractice) standards are drawn in large part from the customs and behavior of the members of the profession.

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The Expert Witness' Role

An expert witness must establish a standard for medical care and give an opinion on whether the defendant's conduct met this standard. The standard must at once be general to all practitioners and specific to the individual plaintiff's circumstances. Ideally, it should be supported by uncontroverted scholarly literature. While it need not prescribe a single course of action, it must either proscribe the defendant's conduct (for the plaintiff) or endorse the defendant's conduct as an acceptable alternative (for the defense).

These standards ignore the conflict between actual medical practice and legal expectations. The courts expect that medicine, as a learned, science-based discipline, will have articulated standards for practice. While recognizing the art in medicine, the law assumes that the science of medicine will be sufficiently formalized that the regions of art will be readily identifiable. Rather than face the core problem of inadequately defined practice standards, the courts allow experts to step into this void with standards tailored to serve the desired ends of the lawyer engaging the expert.

Schools of Practice

Obtaining expert testimony has always been the most difficult part of medical malpractice litigation. Historically, there have been two competing interests: members of a professional group did not want to testify against their colleagues, but they did want to run their competitors out of business. Allopathic physicians were happy to label homeopathic physicians as incompetent, and any physician would dispute the competence of a chiropractor. These rivalries led the courts to use the legal doctrines of the school of practice and the locality rule as the basis for qualifying a person as an expert witness.

The school of practice distinctions also predated modern medical training and certification. At one time medical practitioners were divided into chiropractors, homeopaths, allopaths, osteopaths, and several other schools based on different philosophical and psychological beliefs. Since state legislatures did not discriminate among these different schools of healing, judges were reluctant to allow litigation to be used to attack an approved school. Except for chiropractors, allopathic practices (and osteopaths using primarily allopathic methods) have driven out the other schools of medical practice. The courts retain the traditional school of practice rule when they refuse to allow physician experts to question chiropractic care or chiropractors to testify in cases with physician defendants.

The school of practice rule is now applied to the differentiation of physicians into self-designated specialties (self-designated because few state licensing boards recognize specialties or limit physicians' right to practice the specialties in which they have been trained). The relevance of the specialty qualifications of an expert witness depend on whether the case concerns procedures and expertise that are intrinsic to the specialty or general medical knowledge and techniques that are common to all physicians. This dichotomy is reflected in strategies for expert testimony. Whether the parties to the lawsuit will stress the specialty or general knowledge depends on the qualifications of the expert that each has retained.

The Locality Rule

The locality rule is the progenitor of the debates over the proper specialty qualifications for an expert witness. The locality rule evolved before the standardization of medical training and certification. During this period, there was a tremendous gulf between the skills and abilities of university-trained physicians and the graduates of the unregulated diploma mills. In many parts of the country, parochialism and necessity combined to create the rule that a physician's competence would be determined by comparison with the other physicians in the community, or at least in similar neighboring communities. The strictest form of the locality rule required the expert to be from the same or a similar community. This made it nearly impossible for injured patients to find experts to support their cases, effectively preventing most medical malpractice litigation.

The underpinnings of the locality rule are diametrically opposed to contemporary specialty training and certification. There is no longer a justification for a rule that shelters substandard medical decision making on the sole excuse that it is the norm for a given community. Many states have explicitly abolished the locality rule for physicians who hold themselves out as certified specialists. Unfortunately, the locality rule is being reinvigorated in some states as a tort reform measure. This resurgence is driven by the problem of access to care and facilities in rural areas.

Proponents of the locality rule often confuse access to facilities with physician competence. A national standard of care implies that the rural physician will have the same training and exercise the same level of judgment and diligence as an urban practitioner. It does not require that the rural physician have the same medical facilities available. If the community does not have facilities for an emergency cesarean section, the physician cannot be found negligent for failing to do this surgery within the 15 minutes that might be the standard in a well-equipped urban hospital.

Under a national standard, however, the physician must inform the patient of the limitations of the available facilities and recommend prompt transfer if indicated. This allows patients to balance the convenience of local care against the risks of inadequate facilities. The protection of a national standard is especially important as rural hospitals attempt to market or retain lucrative medical services that their facilities are not properly equipped to handle.

Qualifying an Expert

The attorney offering the testimony of an expert witness must follow certain legal formalisms to have the expert's testimony accepted in court. The attorney must first establish that the witness has the proper medical qualifications. When the witness is presented, the opposing counsel may ask to stipulate that the witness is qualified. This is done when the witness is clearly qualified and opposing counsel would prefer that the jury not dwell on the witness's background. If the defense does not stipulate to the witness's qualifications, the expert witness must describe his or her background, practice, or academic experience and any other training or experience that is relevant to the case. Most important, the expert must assert familiarity with the treatment of patients with the plaintiff's complaint by physicians similarly situated to the defendant.

The attorney offering the expert witness will tailor the testimony to the expert's qualifications. If the expert is a general practitioner testifying against a specialist, the testimony will be heavily weighted toward establishing that any competent physician would have avoided the defendant's error. If the expert is a specialist testifying against a general practitioner, the expert will be questioned whether the general practitioner had a duty to refer the patient to a more skilled physician.

If both the expert and the defendant are specialists, the jury must be convinced that the defendant delivered substandard care, as opposed to making a well-reasoned but incorrect judgment. The plaintiff's expert will try to explain the plaintiff's medical condition and the standard of care question in simple terms. This allows the jurors to convince themselves that there was no acceptable excuse for the defendant's failure to render the care described by the plaintiff's expert.

An alternative tactic is to attack the defendant's qualifications to treat the plaintiff's condition. This may be done with either a same-specialty expert or, preferably, an expert from a different and more appropriate specialty. The best situation for this approach is when the patient's condition is usually managed by a different specialty: for example, a surgeon defending his supervision of a certified registered nurse anesthetist against damning testimony by an anesthesiologist. The hope is to force the defendant to abandon his posture of special knowledge. If the plaintiff is successful in establishing the defendant's lack of special knowledge, then the defendant must contend that the treatment of plaintiff's condition was a matter of general medical knowledge. Even if the plaintiff is not wholly successful, he will still force the defendant to expend credibility on refuting the allegation that he was unqualified to manage the patient's condition.

Problems with Expert Witnesses

The testimony of expert witnesses is inevitably theater. Jurors have no alternative but to judge the testimony of expert witnesses on the personal credibility of the witness. Positive factors such as academic degrees, specialty board certification, and publications influence credibility. So do factors such as physical appearance, race, gender, command of English, and personality. For an expert witness, the foremost qualifications are effective presentation and teaching ability. The expert must educate the jury in the technical matter at hand, just as he or she might educate an undergraduate physiology class. The objective is to convince the jurors that they understand the technical issues. Once there is a perception of understanding, the expert can convince them that they are making an independent decision that his or her testimony is correct rather than just agreeing with him or her.

The problem is that an untutored audience may not be able to separate a well-told tale from the truth. When the testimony involves areas that do not have consensus standards of practice, it is not unusual for the jury to be told separate, mutually exclusive tales by each party in the litigation. The absence of standards also makes it difficult to identify impartial third parties to act as scientific referees. If physicians cannot agree on common standards of practice, there can be no agreement on persons to testify as to standards of practice. This is reflected in proposals by defendant groups to limit who may testify as an expert witness. These proposals all involve requiring that the expert witnesses have the same training and practice habits as the defendant. While ostensibly aimed at nonpracticing professional witnesses, they also eliminate medical school professors and persons who do not practice full-time private medicine. Since the defendant also must put on expert testimony, the impact of these proposals may be as severe on defense witnesses for physicians involved in innovative treatments as for plaintiffs' witnesses with alternative practice styles.

* The above material was excerpted, modified or otherwise prepared by the 'Lectric Law Library from a work © by The Medical & Public Health Law Site at https://plague.law.umkc.edu

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