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The Expert Witness in Medical Liability Cases
Published online by Cambridge University Press: 01 January 2021
Extract
This article presents an overview of the role of the medical expert witness in litigation involving issues of medical liability or malpractice in order to introduce the potential physician expert witness to some of the major problems and situations that may arise.
The expert medical witness is needed among other reasons, to define the standard of medical care required in the Physician/patient relationship which is frequently the crucial element in a professional liability case. The plaintiff. in order to prevail in his law suit, must show, among other components, (1) what the required standard of care was in his case, (2) that the defendant failed to meet that standard, and (3)th at this failure was the cause of the injury alleged.
The standard of care required of a physician is commonly defined as adherance to “the skill and learning commonly possessed by a member of the profession in good standing.”
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References
Prosser, W., The Law of Torts §32 at 162 (4th ed. 1971 [hereinafter cited as Prosser].Google Scholar
People v. Rissman, 316 P.2d 60, 69–70 (Cal. 1957). Also see State v. Schifsky, 69 N.W.2d. 89, 93 (Minn. 1955); Cal. Civ. Proc. Code §1878 (West 1955).Google Scholar
See generally, 31 Am. Jur. 2d §§14–15 at 507–10; 7 Wigmore, Wigmore on Evidence § 1924 (3d ed. 1940); Fisch, , Lay Opinions in New York, Cornell L. Q. 32 (1951).Google Scholar
See, e.g., Fed. R. Evid. 701 (If a witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are: (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue).Google Scholar
E.g., State v. Rondeau, 553 P.2d 688, 698 (N.M. 1976); Pavios v. Albuquerque Nat'l Bank, 487 P.2d 187, 189–90 (N. M. 1971).Google Scholar
Holder, , Physician's Duty to Testify, The Best of Law and Medicine 70/73 (1974); Comment, The Physician's Testimony—Hearsay Evidence or Expert Opinion; A Question of Professional Competence, 53 Txt. L. Rev. 296 (1975) [hereinafter cited as Physician's Testimony].Google Scholar
Hodge v. Duley, 323 A.2d 607, 611 (Md. 1974); Penn Fruit Co. v. Clark, 259 A.2d 512, 515 (Md. 1969).Google Scholar
Beahm v. Shortall, 368 A.2d 1005, 1009 (Md. 1977) (physician who examines patient, not for purpose of medical treatment, but to qualify as expert witness, may testify as to his medical conclusions).Google Scholar
McCormick, , see note 4 supra, 31–32.Google Scholar
McCormick, , see note 4 supra, 36–37.Google Scholar
Note, Evidence: The Hypothetical Question in the Examination of Expert Witnesses, 28 Okla L. Rev. 650, 650–51 (1975).Google Scholar
Fed. R. Evid. 705 (also provides that expert may be required to disclose underlying facts or data upon cross-examination).Google Scholar
Smith, Henley, , Opinion Evidence: An Analysis of the New Federal Rules and Current Washington Law, 11 Gonzaga L. Rev. 692, 696–99 (1976); Physician's Testimony, see note 8 supra, at 316–18.Google Scholar
See generally, Annot., 46 A.L.R. 3d 275, 279 (1972).Google Scholar
See Crawford v. Rogers, 406 P.2d 189, 192 (Alaska 1965) (criterion in determining whether one qualifies as expert witness is whether or not jury can receive “appreciable help from this particular person on this particular subject”).Google Scholar
See, e.g., Allen v. St. Louis Public Service Co., 285 S.W.2d 663, 668 (Mo. 1956) (testimony that doctor was resident physician at hospital allows court to presume qualifications to express expert opinion testimony); Kelly v. Carroll, 219 P.2d 79, 85 (Wash. 1950) (doctors with unlimited licenses competent to give expert testimony). See generally, Annot., 54 A.L.R. 860 (1928).Google Scholar
Klimklewicz v. Karnick, 372 P.2d 736, 740 (Colo. 1962) (general rule, that physician is entitled to have his treatment tested by principles of the school of medicine to which he belongs, applied to practitioners of schools of homeopathy, allopathy, osteopathy, chiropractic, and Christian Science healing); Kramer, C., Medical Malpractice 9 (4th ed. 1976) [hereinafter cited as Kramer].Google Scholar
Kelly v. Carroll, 219 P.2d 79, 85 (Wash.), cert. denied, 340 U.S. 892 (1950) (drug healer held to medical standard for failing to recognize ailment); Nelson v. Harrington, 40 N.W. 228, 231–32 (Wis. 1888) (defendant, a “clair-voyant physician,” who did not belong to any existing school of medicine and who held himself out as competent to treat human disease, held to standard of physicians in general).Google Scholar
Janssen v. Mulder, 205 N.W. 159, 161 (Mich. 1925) (proof that defendant chiropractor failed to exercise requisite skill and care must be made by one engaged in treatment by similar method).Google Scholar
Wheatley v. Heideman, 102 N.W.2d 343, 350 (Iowa 1960) (osteopath required to observe standards and methods of practice of osteopaths under similar circumstances rather than standards of other schools); Witt v. Reed, 289 P. 291, 293–94 (Okla. 1930) (chiropractic physician held to standards of those in same neighborhood and in the same line of practice).Google Scholar
See Sagall, , Courtroom Qualification of Medical Witnesses, Trial 59 (June–July 1970).Google Scholar
E.g., Caron v. Pratt, 336 A.2d 856, 859 (Maine 1975) (within discretion of trial court to exclude as incompetent testimony of general practitioner or internist who was personally unfamiliar with surgical procedure); McCormick, , see note 4 supra, at 30.Google Scholar
Steinberg v. Indemnity Ins. Co. of N. America, 364 F.2d 266, 273 (5th Cir. 1966) (although specialist must generally be judged by others practicing same specialty, a non-specialist doctor may give expert opinion testimony if he has “actual knowledge of the particular procedure attacked as negligent”).Google Scholar
Peterson v. Carter, 182 F. Supp. 393, 395 (W.D. Wis. 1960) (internist lacked necessary knowledge and experience of thyroid surgery to qualify as expert witness); DiFilippo v. Preston, 173 A.2d 333, 338 (Del. 1961) (inability of witness to testify as to standards required of surgeon performing thyroidectomies sufficient to disqualify him as expert).Google Scholar
Carbonneau v. Lachance, 29 N.E.2d 696, 697 (Mass. 1940) (within discretion of trial judge to determine whether witness was sufficiently versed in osteomyelitis to warrant qualification as expert witness).Google Scholar
Swanson v. Chatterton, 160 N.W.2d 662, 667 (Minn. 1968) (witness not qualified to render opinion since he failed to show that he had had the opportunity and means of acquiring the special knowledge or experience essential to giving authoritative answers to questions posed to him).Google Scholar
E.g., Harris v. Smith, 372 F.2d 806, 813–14 (8th Cir. 1967) (proffered testimony of medical doctor not incompetent because he was not specialist in particular school of medicine; rather, weight to be given such testimony is within discretion of trier of fact).Google Scholar
E.g., Peters v. Gelb, 314 A.2d 901, 904 (Del. 1973). (Lack of recent familiarity with vasectomy technique indicated that surgeon was not a competent expert; rejected contention that lack of “current expertise” should go to weight given proffered testimony).Google Scholar
E.g., Hawkins v. Schofman, 204 So. 2d 336, 338–39 (Fla. Dist. Ct. App. 1967) (quoting the Florida Supreme Court, held that medical expert may qualify by “study without practice, or by practice without study”).Google Scholar
E.g., Okla Stat Ann. tit. 12, §383 (West) (1976).Google Scholar
McDermott v. Manhattan Eye, Ear & Throat Hosp., 203 N.E.2d 469, 474 (N.Y. 1964) (defendant in malpractice suit has no inherent right to remain silent or to answer only questions that will have no adverse effect on his case); Louisell, D. Williams, H., Medical Malpractice 7.06, 11.19, 10.11 (1973).Google Scholar
See Holland v. Stacey, 496 P.2d 1180, 1184 (Okla. 1972) (where “friendly” cross-examination was permitted, court found no reversible error); Kan. Civ. Pro. Stat. Ann. §60–243(b); Fed. R. Civ. P. 12.Google Scholar
See McCormick, , see note 4 supra, at 52–53.Google Scholar
Jacobson, Slawkowski, , The Defendant-Doctor as Plaintiff's Expert: A Reappraisal of the “Modern” Rule, 27 Fed'n Ins. Couns. Q. 245 (1977).Google Scholar
See, e.g., Estate of May v. Zorman, 487 P.2d 270, 272 (Wash. Ct. App. 1971) (adverse-party-witness rule assists in securing competent medical testimony); Martin, Medical Malpractice, 33 Ins. Couns. J. 269 (1966).Google Scholar
14 Williston, S., Williston on Contracts §1716 (3d ed. Jaeger, W., 1972) [hereinafter cited as Williston]; Bomar, , The Compensation of Expert Witnesses, 2 L. Cont. Prob. 510 (1935).Google Scholar
Williston, , see note 38 supra, §1716 at 879–80; ABA Code of Professional Responsibility, DR 7–109(c) (attorney shall not pay, offer to pay, or acquiesce in compensation to witness on contingent basis). Also see, Person v. Association of the Bar of City of New York, 554 F.2d 534, 537–38 (2d Cir. 1977) (legislatively adopted rule, similar to DR 7–109 (c), did not affect fundamental right or create suspect classification, and had sufficient rational basis to withstand due process and equal protection challenges).Google Scholar
For a discussion for this technique, see Kramer, , see note 19 supra, at 95; Bergen, , Medical Books as Evidence, The Best of Law and Medicine 70/73 at 281 (1974).Google Scholar
E.g., Ruth v. Fenchel, 121 A.2d 373, 376 (N.J. 1956) (where expert witness admits that treatise is authoritative, text may be used to cross-examine him on aspects of testimony which are at variance with text).Google Scholar
Graham, , Discovery of Experts Under Rule 26(b) of the Federal Rules of Civil Procedure, 1976 U. Ill L.F. 895 (part 1) and 1977 U. Ill L.F. 169 (part 2); Fed. R. Evid. 804 (b)(1).Google Scholar
See Holder, , Physician's Duty to Testify, The Best of Law and Medicine 70/73 at 277 (1974).Google Scholar