What comes to your mind when a legislature says that expert witnesses must be in the same or related specialty as the defendant? Seems straightforward.
If an orthopaedic surgeon is being sued, an orthopaedic surgeon is the proper specialty to testify about the standard of care for an orthopaedic surgeon. And, if a psychiatrist is being sued – a psychiatrist.
A Maryland Court of Special Appeals struggled with this axiom.
In Strong v. DeMuth, a patient sued his orthopaedic surgeon. He claimed Dr. DeMuth failed to make a timely diagnosis after his knee surgery- ultimately leading to an amputation. Strong’s attorney selected as the plaintiff’s expert, Dr. Johanning, a vascular surgeon. This selection deviated from a Maryland statute mandating experts must be in the same or related specialty as the person being sued.
The word “related” gave the court its opening to eviscerate the legislature’s intent.
The court concluded that, in this case, the questions surrounding negligence focused on post-operative management of possible vascular complications of orthopaedic surgery, a subject a vascular surgeon was qualified to opine on.
The court continued:
Not all surgical specialties necessarily are associated or connected with respect to diagnosis and treatment of a particular patient. … We conclude, however, that in the context of the malpractice allegations in this case, the specialties of orthopedic surgery and vascular surgery overlap, so that the board certification specialties are ‘related’ within the meaning of [the law].
So, the court concluded a vascular surgeon was sufficiently related to an orthopaedic surgeon in terms of some aspects of care. I’ll need to remember that next time I refer a patient for a hip replacement.
These novel judicial interpretations are nothing new. Medical Justice has been tracking these creative translations for over a decade. How do you combat it? Easy. Medical Justice makes available a template for elective patients to sign prior to treatment. It states that if there is a legitimate dispute, each side will use as experts only those who are Board-certified in the same specialty as the doctor and a member in good standing of the professional society as the doctor, that professional society being _____.
If you’re a Medical Justice member and you are not using this template, now may be the time to start. If you’re not a member, call us for more information. An ounce of prevention is worth a pound of cure.
You’re providing your constituents with a one sided, incomplete analysis. instead, you should be doing them a service by explaining why there is an overlap. There are postoperative evaluations that are clearly involved with evaluating the vascular integrity of the leg after orthopedic surgery which the orthopedic surgeon is responsible for evaluating either by house staff or nursing or both. The fact that a vascular surgeon is called to explain the departures from accepted practice and causation doesn’t change the fact that vascular exams have to be performed. Medicine is not practiced in a vacuum – there is always some overlap between specialties.
You’re missing a bit here. There was an orthopaedic surgeon as a plaintiff’s witness as well as a vascular surgeon. Since this was a vascular accident, that really isn’t so far out of the norm. Bad cases make bad law, and this was a bad case that never should have gone to trial. So by trying to avoid any outlay, they got a much worse result…
Kathy:
Let me explain how using experts from the same specialty helps YOUR client, the plaintiff (see, I can be balanced). If you choose an expert from the same specialty, there is no litigating that issue. If you use an expert from another specialty, this issue might be litigated. In this case, it went all the way up to the state’s highest court. Now that that issue is settled for this case (and for this case only), it goes back down to the trial court to be decided. The operation occurred in 2007. It’s now 2012. When will this case be decided? Who knows?
Assume the plaintiff wins quickly (and the case is not appealed). What a waste of time. Plus, the extra expenses generated by the appeal will be debited fromn the patient’s account. Can we at least agree on that?
Wouldn’t it be simpler to select an orthopaedic surgeon to render judgment on an orthopaedic surgeon? There are over 20,000 practicing orthopods.
And, remember, choosing the expert in the same specialty only applies to standard of care. Want to use a vascular surgeon to opine on causation, go right ahead.
There’s a reason states crafted statutes on same specialty for determining standard of care. The slippery slope. I fully agree that a vascular surgeon is competent to address a post-op vascular issue in an orthopaedic case. But, the primary issue related to standard of care is– did an orthopaedic surgeon follow the standard of care (either making the diagnosis, calling a vascular surgeon in time, etc). For this, the law typically mandates – pick an orthopd.
If this case were decided the other way, and the judge refused to allow a new expert to replace the vascular surgeon, and the case was otherwise win-able – would you not agree that choice could be grounds for legal malpractice?
Keeping it simple benefits both sides – and that’s balanced.
Question to “Medical Justice”
Dr. Segal, you stated that you have a patient sign a form prior to treatrment requiring the same specialty (as well as other details), should a dispute arise.
I can understand the intention of having a patient sign such a form. But it has always been my understanding that such signed forms are never “binding.”
Plaintiff’s counsel usually state that the patient signed the form under “duress” and that such forms remove their Constitutional rights.
In short, the forms are usually “vacated” by the Courts even before they go to trial. A possible advantage to using pre-signed agreement forms is that they might push a patient toward a settlement, but count for nothing if plaintiff’s counsel see a strong case that favors the plaintiff.
Please correct me if I’m wrong. I’m sure this is a question you are frequently asked.
Michael M. Rosenblatt, DPM
Dr. Rosenblatt:
Thanks for your note. The agreements have stood the test of time – a decade. They are fully enforceable.
It is true that duress may be a valid defense against enforcement of a contract. But, a patient entering into an agreement with a doctor for elective treatment – when he/she has meaningful choice and time to deliberate – that would rarely, if ever, satisfy the criteria for duress.
Take arbitration agreements. Arbitration agreements do far more to change the legal system’s method of resolving disputes than the agreement referenced above (to select the expert’s specialty and society membership). Agreeing to arbitration waives the right to a jury trial and no judge is involved. Agreements to arbitrate are a far greater intrusion into the traditional judicial system than the agreement to define experts. Arbitration agreements have been found to be generally enforceable – as have the much “less intrusive“ expert agreements.
That said, you do not want to ask for a signature when the patient is in extremis. If the patient is in the ER with grey matter peeking through exposed bone; obviously that is not the time to make the request. Those facts would qualify as duress- neutering any agreement.
But for elective treatment, duress is generally not a viable defense.
Jeff Segal