Non-physician vs. Physician: Cross-disciplinary Expert Testimony in Medical Negligence Litigation

• Publication year: 2019

Non-Physician VS. Physician: Cross-Disciplinary Expert Testimony in Medical Negligence Litigation

Marc D. Ginsberg
John Marshall Law School, 9ginsberg@jmls.edu

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NON-PHYSICIAN VS. PHYSICIAN: CROSS-DISCIPLINARY EXPERT TESTIMONY IN MEDICAL NEGLIGENCE LITIGATION—WHO KNOWS THE STANDARD OF CARE?

Marc D. Ginsberg^*

Table of Contents

Introduction.................................................................................680

I. The Practice of Medicine....................................................685
II. The Biomechanical Engineer.............................................686
III The Psychologist...............................................................689
IV. The Dentist........................................................................694
V. The Chiropractor...............................................................695
VI. The Neuroscientist............................................................699
VII. The Physiologist..............................................................701
VIII. The Pharmacist..............................................................702
IX. The Nurse Anesthetist.......................................................709
X. The Pharmacologist/Toxicologist......................................712
XI. The Physician Assistant....................................................717
XII. The Advanced Practice Registered Nurse/Nurse Practitioner........................................................................719
XIII. The Nurse.......................................................................722

Conclusion....................................................................................724

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INTRODUCTION

"As, then, the physician ought to be called to account by physicians, so ought men in general to be called to account by their peers."¹ - Aristotle

It is beyond dispute that the "standard of care" (existence of, compliance with, and deviation from) is the evidentiary focus of the medical negligence trial.² A deviation from the standard of care, proximately causing injury, is a prerequisite to the imposition of medical negligence liability.³ The standard of care is not a singular concept, or perhaps more specifically, is not singularly defined. Various versions of the standard of care have existed in various jurisdictions at various times, including:

• The performance of medical care skillfully and safely;⁴
• "[R]easonable skill and diligence . . . such as thoroughly educated surgeons ordinarily employ."⁵
• "[S]uch care and diligence as men in general, of common prudence and ordinary attention, usually

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apply in similar cases, and not that extraordinary care which might be applied in such a case by very careful and prudent persons."⁶
• "[T]he method of treatment used is supported by a respectable minority of physicians, as long as the physician has adhered to the acceptable procedures of administering the treatment as espoused by the minority."⁷
• "[T]he prescribed treatment or procedure has been approved by one group of medical experts even though an alternate school of thought recommends another approach, or it is agreed among experts that alternative treatments and practices are acceptable."⁸
• "[T]he physician must treat the patient with 'such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty.'"⁹
• Physicians must "possess and apply the knowledge, skill[,] and care which a reasonably well-qualified physician in the same or similar community would bring to a similar case."¹⁰
• "A [physician] must possess and use the knowledge, skill, and care ordinarily used by a reasonably careful [physician]. The failure to do something that a reasonably careful [physician] would do, or the

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doing of something that a reasonably careful [physician] would not do, under circumstances similar to those shown by the evidence, is 'professional negligence.'"¹¹

Whichever definition is utilized from the standard of care spectrum (locality rule on one end of the spectrum, national standard of care on the other end), it is fundamental to the law of medical negligence that expert testimony is required to prove the existence of the standard of care, deviation from (or compliance with) the standard of care, and a deviation from the standard of care proximately causing the patient's injury.¹² The jury is simply not permitted to conclude that a physician was negligent in a fashion similar to that utilized in a garden-variety, non-professional negligence case.¹³

Of course, Federal Rule of Evidence 702 (FRE 702) governs expert testimony in the federal district courts and provides as follows:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and

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(d) the expert has reliably applied the principles and methods to the facts of the case.¹⁴

Most, but not all, states have adopted the standards encompassed by FRE 702.¹⁵

It is significant to note that FRE 702 does not specifically qualify or disqualify any particular type of expert witness. Typically, the medical negligence plaintiff will produce a physician-expert witness to establish the standard of care applicable to the defendant-physician, deviation from the standard of care, and the resulting damages.¹⁶ This traditional approach to the use of a physician-expert witness was well explained almost fifty years ago by Professor John Waltz:

The plaintiff in all but the most self-evident medical malpractice case is required to produce in support of his claim the testimony of qualified medical experts. This is true because the technical aspects of his claim will ordinarily be far beyond the competence of the lay jurors whose duty it is to assess the defendant[-]doctor's conduct. And the plaintiff himself, lacking the training and experience that would qualify him to characterize the defendant's conduct, is incompetent to supply guidance to the jurors.¹⁷

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Of course, the qualified medical expert referred to by Professor Waltz is understood to be a physician.¹⁸ As one commentator explained, "It takes one to know one."¹⁹

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, "would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession."²⁰ Accordingly, in typical medical negligence litigation, the plaintiff's expert witness testifying regarding the existence of and the defendant-physician's deviation from the standard of care would be a physician.

Why, then, have courts permitted non-physicians to give standard of care testimony against physicians? Cross-disciplinary standard of care testimony against physicians has been provided by an array of non-physicians: a biomechanical engineer,²¹ a pharmacist,²² a nurse,²³ pharmacologists,²⁴ and a pharmacologist/toxicologist.²⁵ Is cross-disciplinary standard of care expert testimony an aberration? Does it reveal a failure of trial courts to understand the practice of medicine and knowledge of the standard of care? These topics are the primary focus of this paper.

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To be fair, it should be noted that the reasoning of some courts to permit or exclude non-physician, cross-disciplinary expert testimony may be informed by state rules of evidence, rules defining expert witness requirements, or rules pertaining to lawsuit filing requirements. Those rules may be unclear and require interpretation. Therefore, rules such as these are not the focus of this paper. Instead, this paper focuses on how courts understand medicine, the standard of care, and the professional, experiential distinction between physicians and non-physicians. Ultimately, this paper recommends that trial courts should not permit non-physicians to opine that defendant-physicians have deviated from the applicable standard of care while recognizing that as more medical care is provided by non-physicians, courts may decline this recommendation.

I. The Practice of Medicine

To address the propriety of cross-disciplinary expert testimony, some context is necessary. Physician-defendants in medical negligence litigation have allegedly violated the standard of care in their respective medical practices.²⁶ The practice of medicine has been defined or explained as follows:

• "According to philology, logic, and common sense, it is simply the art of healing . . . ."²⁷
• "The practice of medicine in its broadest sense includes the whole relationship of the physician with his patient."²⁸
• "The practice of medicine is a human endeavor."²⁹
• "[M]edical practice requires the engagement of one person with another and realizes that authentic engagement is transformative for all participants."³⁰

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• "[T]he practice of medicine is the applying of medical or surgical agencies for the purpose of preventing, relieving, or curing disease, or aiding natural functions, or modifying or removing the results of physical injury."³¹

Therefore, the practice of medicine contemplates physician training, a physician-patient relationship, and patient care. As a necessary corollary, physician judgment is implicated. Non-physicians, even those who provide patient care, simply do not experience health care as physicians do. It is fair to question how a court might permit standard of care testimony...