You are a lawyer looking for an expert in a medical malpractice case in Maryland. You find one you think is perfect. She has strong opinions, a great reputation, and will be able to communicate well with the jury. You have just one problem. Although your expert is intimately familiar with the care/procedure at issue, she is board certified in a different practice area. (I would like to dedicate this paragraph to basketball analyst Hubie Brooks, who virtually invented this talking in the second person style.)
Malpractice lawyers deal with this type of quandary all the time and often feel compelled to err on the side of caution and find an expert in the exact same specialty as the doctor suspected of malpractice. You err on this side because you just know that the defense lawyers on the other side are sure to bring a motion to dismiss your case. Best case scenario, you have a hassle on your hands. Worst case scenario, you run into the wrong judge who dismisses your case.
This scenario played itself out in a medical malpractice suit filed in U.S. District Court in Greenbelt. Defendants’ malpractice lawyers sought to dismiss Plaintiffs’ malpractice lawsuit against three of the four defendants because Plaintiffs’ certifying expert is a pediatrician and not an emergency room doctor or an internist (there was also a pediatrician defendant who, of course, had no basis to join in the dismissal).
The Defendants’ argued that having a pediatrician was the exact purpose of the statue in the first place, to heel “hired gun experts from freely roaming outside of their chosen fields, and opining on standards of care that they cannot possibly address, based on the scope of their training and certifications.”
(Hired gun experts. Funny hearing that from defendants’ malpractice lawyers. Of course, the experts defendants’ attorney retained are not hired gun experts. They are just great doctors and great humanitarians, who, like Derek Jeter, would play for free. The hundreds of thousands of dollars they make testifying is a mere byproduct of their good work.)
Anyway, the solution to this question involves interpreting language from the Maryland statute that lays out what is required from a certifying expert. Is the expert in a “related field of health care” as the medical care at issue in the case?
U.S. District Court Judge Alexander Williams, Jr.’s opinion identified four questions that should be asked in determining whether the expert is in a “related field”: (1) What is the procedure or procedures at the source of the claim?; (2) Is the procedure common to the two specialties?; (3) What experience does the purported expert doctor have with this specific procedure?; and, (4) is the standard of care applicable to the procedure common to both?
Judge Williams gleaned this test in part from a Virginia state court opinion that analyzed similar statutory language. This test is not binding in a Maryland court but it will be very persuasive in the future.
Applying this standard to this case, Judge Williams denied defendants’ motion to dismiss, finding that the issue in this case – examining a child that is sick – is performed by pediatricians, internists and ER doctors alike.
You can read the full opinion here.