Almost every medical malpractice claimant must present expert testimony by qualified medical experts. The testimony may relate to the standard of care and whether the defendant complied with it, or it may relate to causation, i.e., did the medical negligence cause the injury?
It has always been difficult for plaintiffs to obtain good expert testimony, in part because of the natural tendency of doctors to not want to testify against another doctor. In some specialty fields, like endovascular brain surgery, the difficulty is compounded by the fact that only a small number of doctors are qualified in that field and most of them know each other or have contact with each other through medical meetings and forums.
In recent years, there has been a concerted effort to make it even harder to find qualified experts. National medical groups, such as those involved with obstetrics, neurosurgery, and orthopedic surgery, have developed “rules” which are meant to provide guidance for their members who testify as experts. The rules, of course, make it even more onerous and risky for a doctor who agrees to testify for a plaintiff. The national neurosurgery group, for example, has publicly chastised and even kicked out several neurosurgeons who testified for plaintiffs against a neurosurgeon.
In one case, the neurosurgeon sued the organization and won reinstatement. In some other cases, national medical groups have taken the position that testimony by one of its members constitutes the “practice of medicine” in the state in which the testimony is given. Since most medical malpractice attorneys often utilize out-of-state experts, this would mean the expert would have to seek admission to practice in the state where the case is tried. This would be such an onerous burden few experts would agree to be an expert in other state.
In another case, the national orthopedic group has a lengthy “contract” it asks its members to sign before agreeing to testify, and among other requirements the physician must pledge to review all medical records that may arguably be relevant. Since some claimants have lengthy medical histories spanning decades of care, this burden could add many hours to the expert’s review, and cost many thousands of additional dollars for the plaintiff’s attorney.
Despite all of these burdens and obstacles, it is a tribute to the medical profession that there are physicians who feel they have an obligation to patients to help identify malpractice or negligence and to come forward to testify on behalf of the injured patient. Without that willingness, the courthouse door would be shut to many claimants who have meritorious claims.
