Lax expert-witness requirements cause concern

Chances are that most doctors will at some point find themselves in a courtroom, either as a defendant or, increasingly, as an expert witness. Physicians who serve as expert witnesses can testify on behalf of the plaintiff or defense in a medical malpractice case and can play a critical role in shaping a judge or jury's opinion.

But in order to keep physicians' expert testimony credible, at least 24 state laws specify that the expert's background or specialty should be similar to that of the physician on trial. But some officials are concerned with recent rulings that treat such requirements more loosely. They say the use of unqualified witnesses makes trials unfair and ups the chances of frivolous lawsuits getting into court, American Medical News reported.

"We definitely think the courts are attempting to create law," Gene Ransom III, CEO of MedChi, the Maryland State Medical Society, told American Medical News. He argued that in 2004 the Maryland General Assembly passed a law, which requires state witnesses to have the same or a similar medical background as the physician being sued. The erosion of those measures is problematic, he said.

"It's not appropriate to have physicians from different specialties looking at the same case and opining," Ransom said. "Judges don't understand that just because somebody has an M.D., they're not all the same."

In Ransom's state of Maryland, for example, courts have ruled recently that a vascular surgeon is qualified to testify on the standard of care of an orthopedic surgeon, that a pharmacist can testify against a physician in an informed consent case, and that a nephrologist is qualified to testify against a urologist.

On the other hand, states such as Arizona have stricter requirements, mandating that an expert witness hold a license in the same profession as the defendant and maintain board certification in the same specialty as the defendant.

While prior case law is often the deciding factor in states where no expert-witness requirements exist, the article noted that "AMA model legislation states that doctors giving testimony should be trained and experienced in the same discipline as the defendant, or have specialty expertise in the disease process or procedure performed in the case, and that they be recognized by the American Board of Medical Societies or an equivalent board."

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