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September 15, 2017

Experts in Medical Malpractice Cases

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Experts are critical in medical malpractice litigation. Without one, in most cases you can’t reach the jury. Therefore, you can expect defense counsel to make every effort to disqualify your expert.

    This article is intended to provide a checklist of sorts to make sure your experts (and the defendant’s experts) satisfy the applicable legal requirements to testify.

    1.    Make Sure Your Expert is Qualified.

    There are two basic rules that govern the admissibility of expert testimony in a medical negligence case: Mont. Code. Ann. §26-1-602 and Mont. R. Evid. 702. Make sure your expert satisfies both.

    a.    Mont. Code. Ann. §26-1-602

    This statute has three parts. I’ll address them each in turn.

         i.      Subsection the First.

    Subsection 1 of Mont. Code. Ann. § 26-2-601 states:

(1) A person may not testify as an expert witness on issues relating to negligence and standards of care and practice in an action on a malpractice claim . . . unless the person:

    (a) is licensed as a health care provider in at least one state and routinely treats or has routinely treated within the previous 5 years the diagnosis or condition or provides the type of treatment that is the subject matter of the malpractice claim or is or was within the previous 5 years an instructor of students in an accredited health professional school or accredited residency or clinical research program relating to the diagnosis or condition or the type of treatment that is the subject matter of the malpractice claim... Mont. Code Ann. § 26-2-601(1)(a).

    The statute isn’t unclear, but it is a little cumbersome. So, I’ll break it down and hopefully that is helpful.

    The first requirement of subsection (1)(a) requires that your expert be licensed to practice medicine in at least one state. This is easy. Just make sure they are licensed.

    Subsection (1)(a) then requires that the witness has done one of the following within the previous five years:

         1) “routinely” treated the diagnosis or condition that is the subject matter of the malpractice claim; or

         2) provided the type of treatment that is the subject matter of the malpractice claim; or

         3) taught students about the diagnosis, treatment or condition at issue in a classroom or residency context.

    The first thing to consider is: When does the five year time period start counting back from? From the time of the malpractice? From the time the testimony is disclosed? From the time of trial? A medical negligence case, like any complicated case, can certainly linger so it is conceivable that your expert may be qualified at the time you disclose your expert, however by the time of trial she is not.

    We don’t have a clear answer to this question. However, since the statute reads like a rule of evidence, be prepared for an argument (or to argue) that the statute requires the witness to satisfy the statute’s requirement at the time of trial testimony.  

    Second, your witness must have experience treating or teaching students about either the treatment at issue or the condition at issue. Our Supreme Court provided a comprehensive analysis regarding what this means in Beehler v. Eastern Radiological Associates, P.C., 2012 MT 260, 31, 367 Mont. 21, 289 P.3d 131. In Beehler, Katherine Beehler-Goodson died after contracting bacterial spinal meningitis following a myelogram. The physician that performed the myelogram was an interventional radiologist. The radiologist failed to wear a mask during the procedure, which violated the standard of care.

    Our expert in Beehler was not a radiologist. Instead, we hired an infectious disease physician named Dr. Patrick Joseph. Despite the fact that Dr. Joseph did not actually perform myelograms, Dr. Joseph was qualified to offer standard of care opinions regarding the appropriate infection prevention measures that must be taken during a myelogram in order to prevent bacterial meningitis.

    The Court found that Dr. Joseph was qualified because he had previously investigated the problem of bacterial meningitis following myelograms. He was familiar with infection prevention protocols, including the wearing of a surgical mask, when conducting a myelogram. Dr. Joseph had even developed protocols regarding infection prevention during a myelogram that required wearing mask – and these protocols were applicable to radiologists or whomever was performing a myelogram.

    However, in order to satisfy Mont. Code Ann. § 26-2-601, Dr. Joseph had to satisfy one of the three disjunctive requirements in Subsection 1(a). While Dr. Joseph didn’t perform myelograms, he did routinely treat bacterial meningitis, which ultimately led to Katherine’s death. Beehler, ¶ 25. Therefore, the subsection (1)(a) was satisfied.

    The first subsection does not stop there, however. Mont. Code Ann. § 26-1-602(1)(b) requires the testifying expert to be thoroughly familiar with the standards of care as they relate to the omission that is the subject matter of the litigation:

    (1)          A person may not testify as an expert witness on issues relating to negligence and standards of care and practice in an action on a malpractice claim . . . unless the person:

    (b) shows by competent evidence that, as a result of education, training, knowledge, and experience in the evaluation, diagnosis, or treatment of the disease or injury that is the subject matter of the malpractice claim against the health care provider, the person is thoroughly familiar with the standards of care and practice as they related to the act or omission that is the subject matter of the malpractice claim on the date of the incident upon which the malpractice claim is based. Mont. Code Ann. § 26-2-601(1)(b) (emphasis added).

    To satisfy this subsection, the expert must testify about their familiarity with the standards of care that relate to the specific negligence alleged. The specific issue in Beehler was whether the physician performing a myelogram should wear a mask. Although Dr. Joseph didn’t perform the procedure at issue, he was intimately familiar with the requirement that masks be worn. The Court held:
Moreover, Dr. Joseph is board certified in infection prevention, investigates and treats nosocomial infections, has investigated post-myelogram meningitis infections, and has developed infection control procedures that require radiologists to wear masks during myelograms. Recognizing that the wearing of a mask during the myelogram is the “act or omission that is the subject matter of the malpractice claim,” it is clear that Dr. Joseph satisfied Subsection 1(b). Beehler, ¶ 25.

    Challenges involving subsection 1(b) most commonly arise when you are using an expert for more than one purpose. For example, you may have been lucky enough to have elicited favorable testimony from a treating physician who you then designate as a hybrid expert. Although your hybrid expert may not share the exact specialty (more to come regarding this in the discussion of subsection the third) as the defendant physician, she may be familiar with the standards of care that apply in your case. For example in a case involving the failure to timely diagnose and treat a stroke, a neurologist will be knowledgeable regarding many of the standards applicable to the emergency department physician and generally can provide favorable testimony for your case, though you will need to survive a challenge to her testimony under this subsection.

    You also may decide to use a single expert for both causation and liability. There are risks and benefits to doing so. As benefits, your costs will be lower and you need not fret the possibility of inconsistent testimony. However, if you use a single expert to carry this load, she may not have the identical specialty as the defendant doctor, i.e. Dr. Joseph in Beehler who opined regarding both standard of care and causation. If you decide to use an expert with a different specialty than the defendant for liability purposes, be sure that your expert is familiar with the standards of care and you are comfortable that the jury will not hold the defendant to a different standard of care than that advocated by your otherwise qualified expert.

    The take-away is to maintain the focus of your case on the act or omission – not the specialty of the defendant. In Beehler, the focus was the failure to utilize standard infection prevention measures. It doesn’t matter who performs the myelogram; everyone needs to follow standard infection prevention measures.

         ii.      Subsection the Second.

    This part is easy. Mont. Code Ann. § 26-1-602(2) states:

         (2) If the malpractice claim involves treatment that is recommended or provided by a physician as defined in 37-3-102, a person may not testify as an expert witness with respect to issues of negligence or standards of care and practice concerning the treatment unless the person is also a physician. Mont. Code Ann. § 26-1-602(2)

    If you allege that a doctor is negligent, make sure you have expert testimony from another doctor. Enough said about this.

        iii.     Subsection the Third.

    Mont. Code Ann. § 26-1-602(3) states:

    A person qualified as an expert in one medical specialty or subspecialty is not qualified to testify with respect to a malpractice claim against a health care provider in another medical specialty or subspecialty unless there is a showing that the standards of care and practice in the two specialty or subspecialty fields are substantially similar. This subsection (3) does not apply if the subject matter of the malpractice claim against the health care provider is unrelated to the relevant specialty or subspecialty. Mont. Code Ann. § 26-1-602(3).

        This subsection requires that you hire an interventional radiologist as an expert if you have a case against an interventional radiologist. However, for reasons alluded to above, this subsection has broad exceptions.

    In Beehler, this subsection did not apply because the subject matter of the claim (infection prevention) was not unique to radiology or any other specialty. Dr. Joseph had experience in promulgating the expectations for infection control that were applicable to any physician performing myelograms, even though Dr. Joseph did not perform myelograms himself. Beehler, ¶ 27. The case was not about radiology. It was about infection prevention.

    So, what is your case about? Do you allege that an orthopedic surgeon breached the standard of care by using an outdated surgical technique? You better have an orthopedic surgeon to testify. However, is your case about the failure to adequately monitor that patient in the post-operative period? Your best expert may not be a surgeon. Surgeons perform surgeries, but do not necessarily set monitoring standards. Find out who does. If you talk with a potential expert, ask them if they would defer to any other specialties regarding the subject matter of your litigation. In Beehler, the defendants’ expert radiologists both testified that they don’t set standards for infection prevention and would defer to an infectious disease physician regarding whether they should wear a mask.

         b.    Mont. R. Evid. 702

    As with any expert, in the medical negligence context your expert must be qualified under Montana Rule of Evidence 702. Mont. R. Evid. 702 states:

    If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. Mont. R. Evid. 702.

    An expert satisfies Rule 702 in a medical malpractice case if the witness possesses “knowledge, skill, experience, training, or education to testify as to the diagnosis and treatment in question,” even if the witness does not hold the same board certification or practice as the defendant. Glover v. Ballhagen, 232 Mont. 427, 430, 756 P.2d 1166, 1168 (1988).

    An expert’s reliability is tested in three ways under Mont. R. Evid. 702: (1) whether the expert field is reliable, (2) whether the expert is qualified, and (3) whether the qualified expert reliably applied the reliable field to the facts. Harris v. Hanson, 2009 MT 13, ¶ 349 Mont. 29, 201 P.3d 151. The first two prongs are to be decided by the Court. Id. The third prong is always decided by the jury. Id.

    Most of the motion in limine challenges that we see typically fall under this third prong. The defendant may not cite the three part test (cited from Hanson above). You should, and be sure to be sure to argue that the question of whether a qualified expert reliably applied the principles of that reliable field to the facts of the case is for the finder of fact after vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof. State v. Clifford, 2005 MT 219, ¶ 28, 328 Mont. 300, 121 P.3d 489 (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 596 (1993)). Then show the brief to your expert and be glad you got a glimpse of the possible trial cross-examination.

         c.    Challenging Mont. Code. Ann. §26-1-602

    It is possible that an expert may be excludable pursuant to Mont. Code Ann. § 26-1-602, but satisfy Mont. R. Evid. 702. If you fear this result, you should challenge the constitutionality of Mont. Code Ann. § 26-1-602.

    The best challenge I can think of is separation of powers, but there could be others. This challenge was effective in Arkansas. See Broussard v. St. Edward Mercy Health System, Inc., 386 S.W.3d 385, 390 (Ark. 2012). The Broussard case involved a similar statute limiting testimony by experts in medical malpractice cases. In essence, the statute precluded one medical specialty from testifying against another. The Arkansas Supreme Court found that the statute was unconstitutional because the statute “adds requirements to Rule [of Evidence] 702, attempts to dictate procedure and invades the province of the judiciary’s authority to set and control procedure. As such, it violates the separation-of-powers doctrine […] and the inherent authority of the courts to protect the integrity of proceedings and the rights of the litigants.” Broussard, 386 S.W.3d at 390.

         d.    Questions to Ask Your Own Expert in Deposition.

    Mont. Code Ann. § 26-2-601 requires that your expert show that she is qualified “by competent evidence.” Therefore, consider asking your own expert some questions during deposition. At a minimum, make sure you include this information in your expert disclosure. I recommend asking your own questions for a couple of reasons.

    First, if you go in with a clear plan you won’t be forced later on to cull through the transcript of a six hour deposition taken by the defense lawyer to find testimony demonstrating that your expert is qualified in response to a motion in limine or motion for summary judgment. This is a waste of time when you could have asked a few questions at the deposition so they are easy to find in the transcript and then slap them into your response brief.

    Second, if the defense lawyer didn’t elicit testimony necessary for your response brief, asking questions during the deposition is cheaper and easier than soliciting an affidavit. You don’t want to pay your expert to stand in line at a bank waiting to notarize something.

    Therefore, even though there is probably a plane to catch, at the end of the deposition consider asking your expert the following questions:

    ·  Are you a physician?

    ·  Are you licensed?

    ·  [At least one of the following questions:]

         o   Within the last five years, have you routinely diagnosed [the condition at issue]?

         o   Within the last five years, have you routinely treated [the condition at issue]?

         o   Within the last five years, have you routinely provided the type of treatment that is the subject of this claim?

         o   Within the last five years, have you taught students or residents about the [diagnosis/treatment at issue]?

    ·  As a result of your education, training, knowledge, and experience in the evaluation, diagnosis, or treatment of [the disease or injury that is the subject matter of the malpractice claim], are you thoroughly familiar with the standards of care and practice as they related to the standard of care that was violated by [Defendant Doctor] on [Date of Incident]?

    ·  [At least one of the following questions:]

         o   Are the standards of care that apply to your specialty similar to the standard of care that apply to [Defendant Doctor’s] specialty when it comes to [diagnosing/treating the condition at issue]?

         o   Is the standard of care that was breached in this case specific to [the Defendant Doctor’s] specialty or subspecialty?

    Dress them up or down however you wish, but consider doing something like this. Also, believe it or not, by using these really basic questions in a deposition of a defendant’s expert, I discovered that an expert witness had never diagnosed or treated the condition at issue in a case.

    2.    Don’t Forget About the Treating Physician!

    The defendant is an expert, and if she intends to give opinions at the trial that do not exist in the medical records, those opinions should be disclosed. You may also want to explore whether the defendant physician is even qualified to give such opinions pursuant to Mont. Code. Ann. § 26-1-602.

    You may find that the treating physician is not qualified pursuant to the statute, therefore she should not be able to give opinions at the trial. You also may get helpful admissions regarding whether the applicable standard of care is uniquely applicable to the defendant doctor’s specialty, or whether the standard is utilized by other specialists. If you ask these questions before the expert witness disclosure, you very well may expand the specialties that may opine at the trial.

    I hope this information is helpful. Best of luck.