Arkansas in the process of adding “Same Specialty” requirement for experts in Medical Malpractice cases
Yesterday the Arkansas Supreme Court’s Special Task Force on Practice and Procedure in Civil Cases was released in the form of a Per Curiam opinion, publishing the findings of the task force. That opinion can be found at: http://opinions.aoc.arkansas.gov/WebLink8/0/doc/320270/Electronic.aspx
The task force has been discussing, researching, and debating a modification to Rule 702 of the Arkansas Rules of Evidence. To cut out the lawyer speak, what is happening here is that the Court is in the process of adding a “same specialty” requirement for experts in medical malpractice aka medical negligence cases. In any medical malpractice case, the Plaintiff must present proof of a breach of or deviation from the standard of care by the doctor, nurse, or other medical professional. This must be done by expert testimony as to both (1) what the applicable standard of care was in that situation, and (2) that there was a deviation or breach of that standard. A “same specialty” requirement means that this opinion must be given by a medical professional in the “same specialty” as the individual being sued. For example, if the Defendant was Dr. Al Waysnicksarteries, a General Surgeon, the expert testifying against the good doctor would also have to be a General Surgeon, rather than say, an a Vascular Surgeon, Emergency Physician, Family Practice Doctor, etc.
The longstanding Arkansas law on this topic was that there was no “same specialty” requirement and that any medical expert could testify on these topics as long as that expert exhibits knowledge of the subject. “Where a duly licensed and practicing physician has gained knowledge of the standard of care applicable to a specialty in which he is not directly engages but as to which he has an opinion based on education, experience, observation or association with that specialty, his opinion is competent.” Cathey v. Williams, 290 Ark. 189, 718 S.W.2d 98 (1986).
The Civil Justice Reform Act of 2003 changed this and added a “same specialty” requirement. However, Broussard v. St. Edward Mercy Health System, overturned this requirement because it is the Courts of Arkansas, rather than the legislature, “to determine who may testify and under what conditions…” 2012 Ark. 14, *6, 386 S.W.3d 385, 389. Essentially, the requirement was overturned on a procedural ground, hence, the Task Force was formed to investigate adding such a requirement by the Court.
As previously stated, the report and recommendation of the task force was released yesterday, setting forth the proposed change to add this requirement, as follows:
(b) In addition to the requirements of paragraph (a) of this rule, a witness in an action for medical injury may testify as to the applicable standard of care, compliance with that standard, and failure to act in accordance with that standard only if:
(1) the witness is a medical care provider of the same specialty as the person whose conduct is at issue when that person is a physician, dentist, or other health care professional for whom areas of specialization are commonly recognized; or
(2) the witness is a medical care provider with the same type of professional license, certification, registration, or other authorization as the person whose conduct is at issue when that person is a health care professional for whom areas of specialization are not commonly recognized.
Unfortunately, the proposed addition set forth above does not address the multitude of scenarios where the practice of medicine may overlap. For instance, a patient injured as a result of improper chest tube placement by an Orthopedic Surgeon moonlighting in an emergency room. Under the propose revision, an Emergency Room Physician could not provide expert testimony because the Emergency Room Physician was not the “same specialty” (orthopedics) as the Defendant, despite the fact that the Defendant was not practicing an activity unique to the practice of orthopedics. The task force report attempts to clarify this situation, but its explanation goes against the plain language of the proposed rule revision, which makes no sense.
Further, consider a patient injured due to the negligence of an Orthopedic Surgeon performing spinal surgery. In this instance, under the plain language of the rule, a Neurosurgeon would not be allowed to testify because that Physician is not of the “same specialty” as the Orthopedist, despite the fact that this area of the practice of medicine is shared by the two. The examples go on and on.
The essence of the rule makes sense generally – it is unlikely an Anesthesiologist would be able to testify as to the standard of care involved in performing a vascular surgery nor would a Radiologist be able to testify as to the standard of care involved in anesthetizing a patient. However, there are multiple areas of the practice of medicine which overlap and the standard of care is uniform based on the procedure, rather than the specialty.
Hopefully, the Court will consider these issues and revise this rule before it adopts the change.
The attorneys at CLARK MASON ATTORNEYS represent Plaintiffs injured in medical malpractice case, and will continue to monitor this proposed rule change. If you believe you or someone you know has been injured due to medical malpractice, please contact us today.
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