|
From the March 20,
2006 North Carolina Lawyers Weekly.
Familiarity Breeds Success: Strategies For
Bullet-Proofing The Medical Expert In Malpractice Cases
By Mark R. McGrath
Familiarity may breed contempt, but it can also
serve as a touchstone for success when it comes to qualifying
expert witnesses in medical malpractice cases.
In Wiggins v. Piver, 276 N.C. 134, 171
S.E.2d 393 (1970), the North Carolina supreme court rejected the
"locality rule" in favor of the "same or similar communities"
standard. Following Wiggins, the North Carolina General
Assembly codified the same or similar communities standard in
N.C. Gen. Stat. Sect. 90-21.12.
In recent years the same or similar communities
standard has morphed into something neither the
Wiggins court nor the General
Assembly could have imagined. Emboldened by a series of
Byzantine appellate decisions, some trial judges are
increasingly inclined to exclude the testimony of any medical
expert who cannot articulate specific demographic points of
similarity between the community where she practices and the
community where the malpractice occurred. Experts who have the
temerity to testify at trial that a national or uniform standard
of practice governs a given procedure, however elementary it
might be, can expect to take an early flight home.
As described in earlier articles, maneuvering
within this uncertain environment can be perilous business for
plaintiffs' attorneys. Because defense lawyers can generally
count on a friendly pool of country club chums from which to
recruit experts for their clients, defense experts rarely
confront the kind of traps that separate experts for the
plaintiff from the courthouse door. As a result, because
plaintiffs generally have to look beyond the defendant's medical
community to find experts, injured patients bear a
disproportionate share of the perils that attend application of
this bastardized standard.
As long as this
subtle variety of tort reform continues to be legislated from
the bench, no attorney can completely insulate himself from
danger. There are, however, a number of strategies that can help
minimize the risk posed by this recent trend.
Three Ways To Demonstrate Familiarity
The North Carolina courts have recognized three
foundational bases by which an expert witness can demonstrate
sufficient familiarity with the community at issue to satisfy
N.C. Gen. Stat. Sect. 90-21.12 and testify as an expert witness
at trial. See the dissent in Henry v. Southeastern
08- GYN, 145 N.C. App. 208, 214-215, 550 S.E.2d 245,
249-250, affirmed, 354 N.C. 570, 557 S.E.2d 530 (2001).
. Expert
practices in same community as defendant.
First, experts who
have actually practiced in the subject community, or who have
some other basis for demonstrating first-hand personal knowledge
of the standards of practice prevailing in that community, are
qualified to testify as experts in malpractice cases. If you
believe that finding a physician in the defendant's community
who is willing to testify against him is a reasonable prospect,
you might want to consider another line of work. For those who
wish to proceed, consider this method of satisfying Sect.
90-21.12 deader than the rule in Shelley's Case.
. Expert
practices in similar community.
Expert witnesses can
also satisfy the foundational requirements of N.C. Gen. Stat.
Sect. 90-21.12 by demonstrating that they are familiar with the
standards of practice in communities that are similar to the
subject community. See Dickens v. Everhart, 284
N.C. 95, 199 S.E.2d 440 (1973); Simons v. Georgiade,
55 N.C. App. 483, 286 S.E.2d 596, petition denied,
305 N.C. 587, 292 S.E.2d 571 (1982) (physician qualified to
testify where he trained in communities similar to Durham);
Leatherwood v. Ehlinger, 151 N.C. App. 15, 564 S.E.2d
883 (2002), rev. denied, 357 N.C. 164, 580 S.E.2d 368
(2003) (expert permitted to testify where he had practiced in
communities in South Carolina, Alabama and Mississippi that were
similar to the subject community).
Unfortunately,
similarity, like beauty, resides in the eye of the beholder. As
previously reported, when medical experts testify that two
communities are medically similar, some trial courts are
requiring those experts to support their conclusions with
specific demographic evidence. For example, if an expert from
Wilmington were to testify at trial that Wilmington and Durham
are similar communities, and that this similarity allowed her to
evaluate care rendered by a defendant in Durham, some judges
would require the expert to identify specific demographic points
of similarity between the two communities, such as similarities
in population, economy, industrial base or financial resources.
The degree of
scrutiny given to claims of similarity will invariably be the
product of your judicial draw. Judges who interpret the
evidentiary rules liberally are not likely to reject experts who
forget how many acres of arable land in Johnston County are
under cultivation for tobacco. On the other hand, some judges
are always going to cast a wary eye toward out-of-state experts.
After all, why should a doctor who doesn't know liver mush from
cirrhosis be allowed to testify in a North Carolina courtroom?
Because the "proving
two communities are similar" avenue of qualifying experts is so
vulnerable to vagaries of judicial temperament, lawyers would be
well-advised to steer clear of this option whenever possible. We
all have our nightmares, and mine would be having to watch an
Ivy League trained uber-surgeon straining to explain why Boston
and Charlotte are demographically "similar" communities. With
the wrong judge on the bench, this exercise could become the
legal analogue of watching Willie Mays take his last pathetic
swings for the New York Mets in 1973.
. The expert
has acquainted and familiarized himself with the standards of
practice in the community at issue.
Experts from outside
the community are competent to testify when they demonstrate an
acquired familiarity with the standards of practice prevailing
in the community at issue. More specifically, experts from
outside the subject community are qualified to testify when they
make reasonable efforts prior to trial to acquaint or
familiarize themselves with the standards of practice in the
community at issue.
For example, in
Coffman v. Roberson, 153 N.C.App. 618,571 S.E.2d 255 (2002),
rev. denied, 356 N.C. 668, 577 S.E.2d 111 (2003),
plaintiff tendered two experts who both practiced obstetrics and
gynecology outside Wilmington, the community where the alleged
malpractice occurred. The firstwitness testified at trial that
he was familiar with the standards of practice inthe subject
community, even though he practiced in Charlotte, North
Carolina, a metropolita area that dwarfs Wilmington. The doctor
testified that he had developed his familiarity through
"Internet research about the size of the hospital, the training
program. . . the AHEC (Area Health Education Center)" and by
virtue of the fact that "the hospital involved was 'a training
hospital, very sophisticated.'" Id. at 624, 571 S.E.2d at
259. The court held that this testimony was "sufficient to
satisfy the requirements" of N.C. Gen. Stat. Sect. 90-21.12.
Coffman, 153 N.C. App. at 625, 571 S.E.2d at 259. The court
also allowed the testimony of the plaintiffs second expert, who
practiced obstetrics and gynecology in Colorado and California,
based on similar Internet research and testimony from the
physician that there was "no reason to think that their standard
of care would be any different than where I practice now or
where I have practiced in the past." Id. See also Cox v.
Steffes, 161 N.C. App. 237, 587 S.E.2d 908 (2003) (expert
gained sufficient foundational knowledge of community at issue
by reviewing written information regarding the community from
plaintiffs counsel).
Given the problems
associated with the first two methods of qualifying medical
experts, except in those extremely rare cases where we are able
to find an expert from within the defendant's community who is
willing to testify for the patient, we always proceed with this
third option and ask our experts to apply the standard of care
existing in the community where the malpractice occurred.
As a result, our
focus in preparing experts is quite different from what one
would expect under the preceding two methods for qualifying
medical experts. Because the expert is applying the standards of
practice for the defendant's community, the expert does not need
to be wood-shedded to regurgitate specific demographic points of
similarity between the community where the practices and the
community at issue. Instead, our focus is on providing the
expert with information from which she can develop an
acquaintance, an appreciation and ultimately a professional
understanding of the standards of practice for the very
community where the defendant treated the patient.
Utilizing this third option for qualifying a
medical expert avoids the snares attending the previous two. At
trial, the qualification process on direct or during voir dire
essentially boils down to three questions:
.
Q: Dr. Expert, in forming your opinions in this
case, can you tell us what standard you applied in evaluating
the performance of the defendant?
A: Yes. I applied the standards of practice for
Wilmington as they existed at the time of Ms. Victim's surgery.
Q: Dr. Expert, can you tell us why you feel
qualified to testify regarding the standards of practice in
Wilmington, North Carolina?
A: Yes. I have spent a great deal of time and
effort familiarizing and acquainting myself with those
standards, and as a result I now have a firm medical
understanding and appreciation of those standards.
Q: And please tell us how you developed that
understanding and appreciation....
Familiarizing With Local Community
How can an out of town medical expert acquaint
and familiarize herself with the community at issue? While this
process may sound daunting at first blush, it is anything but.
There are limitless data and sources of information from which
an out of town physician can derive a meaningful and defensible
understanding of the standards of medical practice in the
subject community. The following are offered only byway of
example.
1. As a starting point, have your expert review
medical and demographic information for the subject community.
Clearly, the median income, industrial base and birth rate for
the community at issue shed little light on the standards of
medical practice for performing LASIK or interpreting x-rays.
Still, these are factors that our appellate courts have
considered relevant in weighing the qualifications of medical
experts. Accordingly, acquainting your expert with some of the
more salient socio-economic features of the subject community
will be time well-spent. This information can be found on the
Internet with a minimal investment in time. Among other sources,
download and print information from community web sites,
chambers of commerce and the like, and furnish these to your
expert. Also, be sure to avail yourself of the Cecil G. Sheps
Center web site that can be found at
http://www.shepscenter.unc.edu. This site provides a rich
source for data such as the availability of medical specialties
in the county at issue, mortality rates, unemployment rates, the
county's racial composition, and hospital data. When the care at
issue was rendered at a hospital or other facility, provide your
expert with Internet information for that institution. Most
hospitals now have Internet sites that provide detailed
information regarding their patient population, medical
departments, available equipment and other technologies, medical
staff, laboratories and other services, and other valuable
information, all of which can help to develop and refine your
expert's appreciation for the standards of practice in the
subject community. Be sure to provide your expert with
information for other hospitals in the community as well. Like
hospitals, many practice groups (e.g., surgical, anesthesia,
etc.) maintain Internet sites. These pages can provide experts
with detailed information regarding the group, including
biographies and curricula vitae for physicians and other
personnel.
2. A well-taken deposition of the defendants
will provide invaluable information regarding the standards of
practice in the subject community. Who is better situated to
articulate those standards than the defendant himself? Among
other things, deposition transcripts can provide your expert
with information regarding the mechanics of performing the
medical procedure at issue, the expectations of practitioners in
the community, the training and experience of practitioners
within the community, the types of imaging facilities,
laboratories and other technology that is available in the
community, the job descriptions, scope of responsibilities,
duties and tasks assigned to or assumed by various practitioners
within the community, the defendant's characterization of the
quality and level of care provided in the community (perhaps as
compared to other communities where he has trained or
practiced), and descriptions of the kind of equipment used
during the procedure at issue.
3. Policies, procedures, guidelines and
protocols from the subject hospital (or any hospital in the
subject community) can also be a fruitful source of data that
will inform your expert's acquaintance with the relevant
standards of practice. Whether such policies and procedures
establish the standards of practice for your case is not the
issue. Rather, given the level of detail and breadth of issues
addressed in these materials, there can be no arguing that a
conversational familiarity with such materials will go a
considerable distance toward establishing your expert's
familiarity with the standards prevailing in the subject
community. In essence, policies and procedures can demonstrate
in a detailed and even pedantic manner "how things are done" in
the subject community. When misuse of a medical device is at
issue in your case, the instructions for use and warnings in the
operator's manual will serve the same function.
4. Guidelines, procedures and protocols from
professional associations and other groups can also inform your
expert's understanding of the relevant standards of practice.
For example, the American Association of Blood Banks provides
detailed guidelines regarding the provision of blood banking,
transfusion, and intraoperative blood salvage services. Once you
determine that the facility at issue is accredited by such a
professional body, the guidelines become yet another piece of
the "standards of practice" composite.
5. Accreditation by JCAHO, AABB or other bodies
can also serve as a touchstone in this process of
familiarization. If your expert practices or is a member of the
medical staff at an accredited institution, she will have a
well-developed and first-hand appreciation for the standards of
practice at such facilities. If the facility where the
malpractice was committed and the facility where the expert
practices are both accredited by the same organizations, it will
be difficult for your opponent to claim that the expert is a
stranger to the relevant standards of practice.
6. An expert's appreciation of the relevant
standards of practice can be further informed by having her
review relevant statutes, rules and regulations. For example,
the North Carolina Nursing Practice Act and its accompanying
regulations provide insights regarding the expectations and
qualifications of North Carolina nurses that an out of state
expert can use to her advantage. Another example would be the
detailed regulations governing nurse anesthesia practice in
North Carolina. By reviewing these rules and regulations, your
expert can refine her familiarity with the applicable standards
of practice.
7. Board certification and membership in
professional associations and organizations can also inform your
expert's familiarity with the relevant standards of practice.
For example, while having your expert testify that a uniform or
national standard of care governs all services rendered by
board-certified physicians would be an extremely risky venture,
common board certification certainly advances the expert's
understanding of what would be expected of a board-certified
physician in the subject community. Membership in professional
associations can provide a similar basis for familiarity. For
example, attendance at regional or national conferences,
communicating with other professionals within the organization
and subscribing to national journals invariably expand a
physician's familiarity with standards of practice in
communities other than her own. Frequently, professional
associations also have policies or position statements that can
impact your expert's inquiry. For example, the American
Association of Nurse Anesthetists certifies CRNAs across the
country. Its Internet site (www.aana.com)
contains detailed information regarding the professional
standards and scope of practice applicable to certified CRNAs,
wherever they might practice. Accordingly, this information can
provide an additional basis for claiming familiarity with the
standards of practice prevailing in the subject community.
8. When deposing the defendant, force him to
identify each and every nuance that is characteristic of the
treatment at issue in the subject community. Every physician who
testifies in this state, and every lawyer who handles
malpractice cases in North Carolina, knows that the standards of
practice for performing routine medical procedures is the same
in Wilmington as it is in Spokane. Unfortunately, this
fundamental truth has gone unappreciated by our appellate courts
in a number of recent decisions. To read these opinions in a
vacuum, one would conclude that every community in North
Carolina has a unique standard of practice for every procedure
in the medical repertoire. Of course this is nonsense, but
nonetheless, these are the boundaries of the field upon which we
are forced to play. To combat any contention at trial that the
standards of practice for performing a wart removal in
Wilmington are somehow different than those in Spokane, ask the
expert during his deposition to identify any features of the
standards of practice for performing the procedure at issue that
are unique or idiosyncratic to the subject community.
The following excerpt illustrates the efficacy
of this technique:
Q: Dr., what is the standard of care for the
laparoscopic procedure you performed on Ms. Jones?
A: I'm not sure I understand the question.
Q: Well, what would a physician in Raleigh have
to do in performing this procedure in order to pass professional
muster, in order to perform the procedure non-negligently?
A: Among other things, it would be incumbent
upon the physician to perform the procedure carefully,
exercising proper professional judgment, and making every
reasonable effort to achieve the desired outcome.
Q: And that would be the standard of care here
in Raleigh, at least with respect to the performance of this
procedure?
A: I would say so, yes.
Q: Now doctor, you trained in New York, correct?
A: Yes sir.
Q: And you performed this procedure in New York,
I take it?
A: Numerous times.
Q: You also practiced in California and in Ohio.
A: That's right.
Q: And did you perform this procedure in those
states as well?
A: Hundreds of times.
Q: Based on your experience performing this
procedure in New York, and in California and Ohio, have you been
able to identify anything unique about the way the procedure is
performed here in Raleigh?
A: No.
Q: Would you agree that the standards of
practice governing the performance of this surgery are the same
in all three locations?
A: For the most part.
Q: Can you identify for me anything unique or
idiosyncratic or characteristic of the standards of practice
here in Raleigh for performing this procedure that set it apart
and distinguish it from those other locations where you have
practiced.
A: No.
Q: If someone were to come into court at the
trial of this case and suggest that the standards of practice
for this procedure in Raleigh are somehow unique to Raleigh, or
that they are different in Raleigh than they are in New York or
California or Ohio, how would you respond to that?
A: I would disagree quite strongly with that
characterization.
Q: Doctor, as you sit here today, are you aware
of any idiosyncrasy or nuance unique to the Raleigh community
that governs the standards of practice for performing this
procedure?
A: I am not.
Q: And if I were trying to explain the standards
of practice that govern the performance of this surgery in
Raleigh to a surgeon from, say, Rhode Island, can you identify
for me anything unique about the standards of practice here in
Raleigh that he might need to acquaint himself with before he
attempted to perform this operation in Raleigh? Can you think of
any variation on the standard of care that is characteristic of
the Raleigh community that he might not be aware of?
A: I don't
understand. Any properly trained surgeon should know how to
perform this surgery properly, regardless of where he practices
medicine.
Q: Is it fair to say that you do not believe,
and will not contend at trial, that there is a standard of care
or standard of practice unique to Raleigh that governs this
surgery?
A: That would be fair to say.
9. Finally, to bolster and memorialize the
research and other efforts undertaken by your medical expert,
attorneys might consider the use of standard of care affidavits.
These affidavits identify the sources and data consulted by the
expert in developing her familiarity with the standards of
practice in the subject community. These affidavits are
useful not only to counter foundational challenges on voir dire,
but to serve as aids in preparing witnesses for deposition and
trial testimony. In essence, the affidavit lays out in precise
detail each and every morsel of information synthesized by the
expert in developing her familiarity with the relevant standards
of practice.
Conclusion
The same or similar communities standard has
created problems for attorneys that its framers neither intended
nor envisioned. Indeed, it has now been distorted to such
extremes that it has lost any utility or relevance that it might
once have possessed.
Unfortunately, misapplication of the same or
similar communities standard has cost several patients their day
in court. The risk of such catastrophes can be minimized if
expert develop a professional familiarity with the standards of
practice that exist in the community where the care was
rendered, and then measures the defendant's conduct against that
standard. This approach avoids entirely the nightmarish
challenges confronting an out-of-state witness who is asked to
recite demographic points of similarity between Chicago and
Raleigh or memorize the number of citizens who sit on the New
Bern Board of Aldermen.
Given the wealth of resources at the disposal of
creative practitioners, acquainting medical experts with the
standards of practice in the subject community should not be a
difficult task. When a board-certified physician testifies that
she has (1) reviewed multiple data sources that impact and
illuminate the standards of medical practice in the community,
(2) that she has synthesized these data applying her medical
education, training and experience, (3) that she has developed a
resultant familiarity with the standards of practice in the
subject community, and (4) that she has applied those standards
in evaluating the conduct of the defendant, it is difficult to
imagine an exclusion of that expert's testimony that would
withstand appellate scrutiny.
Mark R McGrath
John Jensen
Mark
McGrath
George Podgorny, Jr.
Jensen McGrath Podgorny, PA
www.JMPAttorneys.com
Info@JMPAttorneys.com
430 Davis
Drive, Suite 250
Research
Triangle Park,
NC
27709
(919)
433-4480 (tel.)
(919)
433-4485 (fax)
|
