Could a well-intentioned expert witness statute make things worse?

by • May 1, 2009 • UncategorizedComments Off on Could a well-intentioned expert witness statute make things worse?1994

© 2009 The Medical-Legal News


By Rose Clifford, RN, LNCC, editor

Does a state law mandating that an expert witness in a medical malpractice case, who is testifying against or on behalf of a specialist, have to be a specialist in the same field, too? Can a state law make an evidence rule (usually within the domain of the courts) concerning expert witnesses more restrictive yet not invade the domain of the judicial branch? And can that added burden of finding the right witness be interpreted as a substantive element of the tort of medical malpractice, like duty, breach, causation and damage?
In Arizona, the answer is yes.
The Arizona Supreme Court recently upheld a state statute (A.R.S. § 12-2604(A)) that essentially says that expert witnesses have to be similarly situated based on credentials and categories of professions, more so than on the “good science” rationale that is more modernly thought to be the better requirement when interpreting federal Rule 702 and state rules that are similarly-worded. The case was Seisinger v. Siebel, 2009 WL 634714 (Ariz.).
While many states do not follow the U.S. Supreme Court’s holding in Daubert and its guidelines on how to apply Rule 702 flexibly, and are free to do so, the Arizona court took a rigid black-and-white approach to its Rule 702 and reasoned that the state’s tight restriction on who can be an expert in a medical malpractice case 1) was a matter of substantive law, not procedural, 2) was designed to increase the burden of production, and thus the kind of proof, on the plaintiff so as to bring better witnesses to trial, thus creating more fairness for defendant doctors, and 3) would ensure that the correct standards of care were applied once the right kind of experts were admitted.
However, a hard and fast bright line rule on admitting expert witnesses arguably could backfire, as exceptions could exist, and make it much harder to locate “good” expert witnesses in many circumstances, creating a disservice to patients and even the plaintiff and defendant doctors.

It is hard enough to find experts, and such a rule as Arizona’s makes it harder. Consider: 1) The burden of proof is not necessarily increased for the plaintiff, which was the intent of the rule (so as to reduce the number medical malpractice suits), but more the burden of finding the messenger of the evidence (which could even force parties to come to court less prepared); 2) What if the customs and standards of a profession are themselves negligent or out of date? 3) What if the pool of specialists is very small? 4) What if the small pool of specialists “collude” to prevent colleagues from testifying? 5) ; What about conflicting case law? 6) What happens when only an “outsider” to the standards of care might be best able to offer guidance? 7) What about experts who believe the standards are inadequate or need to be changed, like with the “best practices” concept? 8) What about the emerging trend of holding medical malpractice defendants to the reasonableness standard (found in regular negligence cases) instead of the custom practices standard?

The statute, case and holding
In the case, a plaintiff’s expert had been disqualified at the trial court level, and the plaintiff challenged the state statute, on separation of powers grounds, that had tossed out her expert.
The statute in question in Arizona “requires an expert witness in a medical malpractice case to be in the same specialty or claimed specialty or be board certified in the same specialty (if the party claims to be board certified), as the party testified for or against.” The statute also requires the expert to have been clinically active in the field in the last year or alternatively to be in a teaching role in the field. The statute applies to medical malpractice expert witnesses who speak to the “standards of practice or care.” (Oral argument case summary).
The state supreme court said the law was constitutional, based on the legislature’s intent to make a “substantive” rule about litigation in the judicial branch as opposed to a “procedural” one. Courts usually have exclusive power to control their own procedural rules. Substantive rulemaking falls to lawmakers. The court struggled with defining what is substantive versus what is procedural in “close cases,” but ultimately felt the statute was one of substance, not procedure: The “legislature is empowered to set burdens of proof as a matter of substantive law” and also, “Rule 702 [Arizona’s] does not involve a ‘core’ judicial function.”
The court noted that, just as a legislature can change the elements (substantive components, like duty, breach, cause and damage) of a tort, it can similarly enact an evidentiary statute as a constructive element of the tort: “[The statute] is substantive in much the same sense.”
The supreme court said: “The common law requirement reflected a policy decision by the courts that the plaintiff’s substantive burden of production could only be met by a particular kind of evidence. The court concluded by saying, “We therefore conclude that insofar as [the statute] specifies the kind of expert testimony necessary to establish medical malpractice, it is substantive in nature and does not offend the separation of powers doctrine.”
A lower appeals court had ruled otherwise, noting that the statute “‘was unconstitutional because it violates the separation of powers provision of the Arizona Constitution’ by setting ‘stricter limits than Rule 702 on qualifications for an expert witness in medical malpractice cases and thus is in direct conflict with Rule 702,’” (Oral argument case summary).
While the supreme court did note that the statute was in conflict with its Rule 702, it reasoned that a supplementary role to a court rule was permissible, also.
The high court also was deferential to the legislature’s reasons for wanting to add a new “constructive element” to medical malpractice — noting the legislature had weighed the societal issues surrounding medical malpractice litigation: “Although we maintain plenary power over procedural rules, we do not believe that power precludes the legislature from addressing what it believes to be a serious substantive problem — the effects on public health of increased medical malpractice insurance rates and the reluctance of qualified physicians to practice here — by effectively increasing the plaintiff’s burden of production in medical malpractice actions.”

Does such a statute actually improve the science in court, or simply constrain finding good experts? The court has said the legislature has changed the burden of proof on a party, which a legislature can do, but did it really? It would seem that the statute increases the burden of finding the right messenger for the proof, not the proof itself.
A concurring judge, in holding only, wanted no part of the majority’s rationale that the statute was some new constructive element of the tort of medical malpractice.
He noted: “But there remains an analytical distinction… between a statute setting forth the quantum of proof necessary to support a cause of action and a statute specifying what potential witnesses may be used in doing so. Indeed, [the statute] not so much purports to address the level of proof as the form that proof must take. For example, an experienced but recently retired physician with all of the same academic qualifications and practical experience as the defendant physician might well be able to provide a very high level of proof for the plaintiff on the question of the standard of care but would still be disqualified from doing so by [the statute].”

Case law is in conflict
Much case law has held that experts do not have to be admitted by profession, but by science and knowledge. In a Nevada case, that state’s high court reasoned that an ER doctor who was familiar with giving injections was qualified to testify as an expert about a nurse’s standard in giving injections, even where the doctor was not a nurse. It was all about “actual knowledge.” (Nicolaus Staccato v. Valley Hospital, 170 P.3d 503, 506 (Nev. 2007). Nurses have even been allowed to jump the fence and testify to medical causation, traditionally a domain of physicians, in bed sore cases. In one such case the sciences at issue aligned within the nurse’s professional judgment. (Gaines v. Comanche County Medical Hosp., 143 P.3d 203 (Okla. 2006)). One appeals court, when referring to a court holding mandating that medical experts’ qualifications be based on a licensure-to-licensure basis, called the rule “draconian.” (Tapp v. Owensboro Medical Health System, Inc., 2009 WL 961113, 4 (Ky. App)). And of course, the U.S. Supreme Court’s Daubert case did not mandate rigid credential-based formality for experts, but “good science,” when interpreting the federal Rule 702. A Duke Law Review article noted that: “The effect [of Daubert] is that medical malpractice no longer rests on what physicians do, but instead assesses whether a physician acted in accordance with valid science and good medicine.”
While courts certainly can follow precedent as they see fit, peer-to-peer based testimonial statute like Arizona’s would appear to fly in the face of the progressive trend of litigating on good science.

Getting at the truth
Were the Arizona legislature and the court thinking too narrowly? In many medical cases the best expert may not be perfectly aligned by credentials.
The Arizona court devoted all of its opinion to discussing breaches in the standard of care, but did not address the tricky issue of causation outside of standards, particularly in omission-based cases, or cases where a standard is just plain wrong, and reasoned that, mostly based on case law, only a medical specialist should speak to another specialist’s breach in the standard of care.
It is a safe and comfortable rule, but potentially crippling.
As to causation, a plaintiff has to show that his injury was causally related to the defendant’s failure to adhere to a standard. In omission cases, or cases where a standard may not exist or be fully vetted, “this may be challenging, since acts of omission are not mechanistically linked to effects in the way that acts of commission are.” (Mello).
Such a conundrum came before Arizona itself in Kuckuck v. Burchfield, CV 2001-0575 (2007). In this appeals case, the plaintiff had surgery by an orthopedic surgeon and developed a staph infection afterward. The plaintiff had a second surgery to remove “foreign bodies.” The plaintiff was put on massive doses of Gentamicin, an antibiotic, for about three weeks. He developed nausea, dizziness, weakness, and imbalance. The plaintiff was later diagnosed with Gentamicin-induced renal failure and ototoxicity, the latter specifically causing bilateral vestibular loss/dysfunction (hearing loss or vertigo).
The plaintiff brought in two experts to deal with the infection issue and its subsequent complications. The defendant doctor won a summary judgment at the trial level arguing 1) one of the plaintiff’s experts (Stratton) was precluded because he was not in the same field of practice as himself and 2) the other expert (Palmer) could not address causation. The appeals court struck them down: “…Dr. Stratton, a board-certified internal medicine/ infectious disease specialist, and Dr. Palmer, a board-eligible internist with a doctoral degree in pharmacology. Neither physician has any cognizable training or clinical experience in orthopedic surgery and, as discussed below, neither is qualified to opine on the standard of care applicable to orthopedic surgeons.”
Was the issue really a breach in orthopedic surgery?
While the statute, created in 2005, did not apply to this case, as the case was filed before 2005, the court noted the statute and found it persuasive.
The court did not allow Palmer or Stratton to testify, reasoning that they were not orthopedic surgeons, but infection or pharmacology experts. Aside from the fact that infections and drugs to treat them were largely what this case was about, the court suggested indirectly that the ideal witness would be an orthopedic surgeon with a hefty knowledge of infectious diseases. And would this knowledge have to be specific to Gentamicin, too?
I doubt such an expert exists.
What if the plaintiff had found and called an orthopedic surgeon expert to testify? The orthopedic surgeon witness might have likely said, “I’m not an expert in pathogens or infections.”
An epidemiologist (disease sources expert) might be a good candidate for an expert witness in a case like this, but could be barred on a strict specialist-to-specialist admission formula.
As another example, what if a car wreck patient were operated on by a surgeon, who was acting within the standard of care, but then the patient later died? An expert in forensic pathology, like a medical examiner, might be more qualified than another surgeon to decide the cause of death. An ME’s testimony could better dig at the truth. Would Arizona’s statute, and other state statutes like it, allow for such a witness?
A concurring judge in the case noted that “it is indisputably a core function of the judicial branch to create an impartial and efficient process for presenting reliable evidence in a courtroom,” and further said, “Any statute which prevents the judicial body from ascertaining the [true] facts [in the case before it]…is ineffective.”
Shifting legal standards of care
Traditionally in medical malpractice cases, courts have been reluctant to force new higher levels of professional standards onto a medical specialty through judicial activism, though this tradition may be changing.
In most areas of tort law, the negligence standard is a test of whether a defendant deviated from a reasonable person’s conduct, as defined by a jury. In medical malpractice, however, “negligence traditionally has been defined as a failure to conform to the standard of care that would customarily be expected of a physician in the same specialty practicing in a similar community.” (Mello, Martinez v. Lewis). This is considered the “custom” standard.
State statutes like Arizona’s, and court holdings like that in Seisinger, arguably embrace the custom standard.
The custom standard is coming under fire, however. An article written for the LeapFrog Group noted: “Eleven states and the District of Columbia have now explicitly abandoned the custom standard and adopted a reasonableness test, and an additional nine have endorsed a reasonableness test without specifically addressing the role of custom. The drift away from customary standards is particularly evident in three areas: adoption of new technology, the evidentiary role played by clinical practice guidelines, and expansions in the doctrine of informed consent.” (Mello).
Also, these states often allow “clinical” or “best practice” guidelines into evidence in connection with expert testimony about the standard of care without requiring a showing of custom. (Mello).
It is reasonable to assume, then, that someone without a myopic view of present standards might be needed to impress upon a court the need to change the scope of medical standards. This person may not be a similarly situated medical colleague who only speaks to current standards and customs.
Surely it is not debatable that litigation has been the impetus for much change in standards over the years, whether a pleasant experience or not. As the famous Judge Hand once observed: “A whole calling may have unduly lagged in the adoption of new and available devices… Courts must in the end say what is required. There are precautions so imperative that even their universal disregard will not excuse their omission.” In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932).
Other concerns as to custom-based intra-field testimony exist. As noted in the Duke article, there may be no customs in a world where various options exist for the same problem. (Hines).
Also, custom itself may be negligent. Witnesses “within” a field may be biased, and lastly, customary practice (and logically the custom-based testimony that would follow) allows an inefficient medical system to remain at odds with emerging evidence-based medicine. (Hines).
A current real-life example speaks volumes: Pulmonary embolisms kill 300,000 people per year and are considered the “most common cause of preventable hospital deaths.” (Robznieks). Several medical groups have endorsed preventative measures (giving the blood thinners warfarin and heparin) to treat pulmonary embolisms and deep vein thromboses (known as VTEs), as a measure to stop the VTEs. The CMS has given its endorsement, which makes giving the drugs almost mandatory, yet some orthopedic surgeons are in a tizzy about the measure because they believe that 1) in many situations the drugs are not needed, 2) the drugs may lead to bleeding, 3) aspirin and compression devices may work fine, 4) the measures are not based on sufficient research and 5) too much influence from the makers of the drugs is at play. (Robznieks).
Regardless of who is right, the point is that both old standards and even new ones can be suspect or wrong, or at least subject to debate. So, in a scientifically cutting edge case, could a plaintiff be without a remedy, or a defendant without a defense?
And in what I find to be strained logic on standards of care, the Arizona court reasons, while citing another court: “In other words, under the statutory scheme, the standard of care is that which is testified to by an expert qualified under the statute.” So, a legislature can decide who an expert will be and then, what the expert testifies to, becomes the standard? This cannot be.
The court seems to believe that by controlling who becomes an expert, one can improve the standards. To wit: “…it is difficult to see why the legislature cannot require a heightened level of proof of the standard of care.” A legislature can and maybe it should, but can heightened proof be achieved by gatekeeping witnesses in such a fashion? Should we allow pragmatically-selected witnesses to set standards on a case-by-case basis? Such closely-aligned-by-credentials witnesses might even lower the standard of care. The court rejects a noncredential-based approach to admitting witnesses when it says: “Our decisions requiring expert physician testimony do not turn on a case-by-case examination of the training or qualifications of any individual expert.” Yes, it does sound like a lot of hard work, but under the court’s preferred expert-witness-first approach, would not standards be set on a case-by-case basis? Which is worse? Vetting witnesses on a case-by-case basis is harder for a judge, but letting in witnesses solely on credentials may be hard on society by impeding the advancement of standards.
A statute similar to Arizona’s, then, simply may not be in the best interest of medical advancement, as any trial-bred progress to the medical community (which might have to come from outside a given medical field) is unlikely to emerge under such a rule.

Finding them
I have another more basic concern, as a person who locates expert witnesses for clients — the pool is quite limited. An Arizona-type statute might even shut the door on finding an expert in a highly specialized field if 1) the field is just too numerically tiny or 2) the members of the small group collude to never testify against members of their specialty.
Indeed, the Arizona high court said of the statute: “It is designed to limit which physicians are qualified to express expert opinions.”
Perhaps keeping out “bad” experts is a noble goal, but limits based on credentials can shut out “good” ones, too.

Alas, the facts… 
More understandable as to the reason for the outcome perhaps, the plaintiff in this case chose a less than stellar expert witness. A better “poster child” and set of facts for challenging the constitutionality of a law might have been in order.
Plaintiff Seisinger filed a medical malpractice suit against anesthesiologist Dr. Siebel after he gave a spinal epidural to Seisinger for her labor. Seisinger’s attorney picked a Dr. Aldrete as an expert to testify that Seisinger had contracted arachnoiditis, a painful neurological condition of the lower extremities, as a result of the epidural and later blood patches performed by Siebel.
Though Aldrete was an anesthesiologist, he was a retired anesthesiologist, “had not practiced in that field since 1999 and did not have hospital privileges…. He had been suspended from practice for 90 days in Ohio, had surrendered his certificate to practice in Ohio, and had been reprimanded in Florida. At the time of trial, his practice was exclusively in the area of pain management and arachnoiditis, not anesthesiology. Though Dr. Aldrete had no specialized training in interpreting spinal X-rays, he had diagnosed arachnoiditis in the plaintiff from her MRI, allegedly without examining the plaintiff, having her X-rays reviewed by a radiologist or neuroradiologist or speaking to any of her treating providers. He was the only person who had diagnosed [the] plaintiff with arachnoiditis and the medications he recommended for her were allegedly not effective.”
I would not have chosen this witness for an attorney — he does not evoke sympathy. Although granted Aldrete does not possess “like” clinical practices, which the Arizona statute seeks to prevent, he has skeletons in his closet and — most importantly — has not done the proper “good science” homework in diagnosis or research, either. Two expert-admission criteria were at play here, one of a clinical fit, and another of a scientific fit, and both fail. That is, the science “baby” has been thrown out with the “clinical-fit” bath water. Had Aldrete been free of a tainted history and loaded up with great science, a different outcome might have been possible. Sadly Aldrete, mismatched clinically, also brought in weak science, which plays right into the hands of supporters of this type of statute.

In the end, the court probably made the right decision on this case’s facts, but may have complicated the securing of good witnesses in future cases where valid science-based exceptions exist. Jurisdictions that impress hard and fast restrictive rules on admitting experts risk impeding justice in an attempt to further it. •

Note: All emphases by italics are those of the author.

• Hines, Nicole, “Why Technology Provides Compelling Reasons to Apply a Daubert Analysis to The Legal Standard of Care in Medical Malpractice Cases,” Duke L. & Tech. Rev., 0018, 2006.
• Mello, Michelle M., Studdert, David M., Brennan, Troyen A, “The Leapfrog Group: Ready to Jump From Marketplace to Courtroom?” Health Affairs 22(2):46-59, 2003; viewarticle/451075_2; viewed March 27, 2009.
• Martinez v. Lewis, 942 P.2d 1219, 1221-23 (Colo. App. 1996)
• Robeznieks, Andis, “Stop the bleeding? Orthopedic surgeons split on merit of CMS VTE goals,” Modern Healthcare, March 30, 2009, pg. 32.

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