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.