Dueling doctors: an argument for specialized medical testimony.

• Author: Buschel, Robert C.
• Position: Florida

Florida's evidentiary rules grant broad discretion to a trial judge when certifying a medical expert in a given field. Variation in admissibility is seen between criminal and civil courts, and even from personal injury to medical malpractice trials. Recent legislative changes and case rulings in the Florida Supreme Court demonstrate a shift toward a greater exclusion among specialty practitioners, but variation still exists.

Expert testimony is intended to validate and verify a litigant's claim in both civil and criminal proceedings. However, experts often obfuscate rather than illuminate scientific issues for the jury. Confusion may arise from either counsel's or the expert witness' ambition to present opinions outside the scope of a witness' expertise. Difficulties proving or excluding an expert will cause problems for trial practitioners who overextend an expert's opinion into a related expertise, unaware of where courts draw the line. This happens when an expert in one particular field offers opinions overlapping into another specialist's similar or related field of expertise. In Florida's state court system, challenging the testimonial range of an expert's knowledge could be made under the Frye standard; (1) in federal courts, the Daubert standard is applied. (2)

Qualifying an Expert

Clarifying when an expert practicing one medical discipline may offer testimony in a different field of medical expertise is necessary in order to avoid misleading a jury or confusing the courts. The American Board of Medical Specialties recognizes 24 areas of specialized medicine. (3) A specialty is defined as an "aspect of medicine to which physicians confine their practice after certification of special knowledge by examination." (4) Similarly, a specialist is a physician "devoted to a particular branch of study or research, ... limiting his practice to a specified field." (5)

Fla. R. Evid. 90.702 [section] permits an expert to testify: "If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial." (6) A "qualified expert" is required to have "such skill, knowledge or experience in that field or calling" so that "his opinion or inference will ... aid the trier of facts." (7)

Florida Medical Malpractice Standard

In certain jurisdictions, experts who render a scientific opinion in a medical malpractice case in support of, and contrary to, an opposing party's expert must speak from the same specialty. (8) In Florida, a lawyer proffering an expert must establish the expert as being a "similar health care provider." (9)

Unless the medical procedure is common or routine practice, an expert not specialized in the same area of practice lacks the foundation to voice an opinion. (10) It is not enough to be a medical doctor; one must "to the satisfaction of the court, possess sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine" within a statutory period before the incident giving rise to the claim. (11) The expert must be "conversant" with the relevant science within the particular specialty. (12) In personal injury and criminal litigation, the qualifying standard is F.S. [section]90.702.

A potential template for development of a uniform evidentiary...