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. 

(501) 219-0077
1 (800) 516-2766
​

When you’ve lost your home, and most or all of its contents in a fire, you just want life to get back to normal. That means having your home rebuilt or repaired and salvaging or buying new personal items. 

Why should you hire a lawyer? A lawyer can act on your behalf by providing expertise in resolving disputes and by understanding how insurance companies work. We know how estimates and claims processes can often be used against insured and know how to fight back. More importantly, hiring a lawyer means that you have someone fighting on your behalf with your best interests at hand. Insurance companies want you to believe that they have your best interests at hand, but that is seldom the case.

When should you hire a lawyer? In many cases, insureds will hire a lawyer when they simply can't make headway with their insurance company in getting the claim processed or when their insurance company wrongfully denies their claim or refuses to pay the full value of their claim. However, you can never hire a lawyer 'too soon' to act on your behalf.
You should definitely hire a lawyer if you are given a Proof of Loss form to complete or if you are requested to submit to an Examination Under Oath.

A Proof of Loss (POL) is simply a form that is requesting you to set forth every item you are claiming coverage for under your policy of insurance.  In theory, this should be quite simple.  In practice, however it is not.  The forms are typically full of insurance jargon, and are not specifically tailored to your coverage.  If you are contemplating filling this form out without having read and reviewed your full policy of insurance then you are making a mistake.  You may claim something which isn’t covered under the policy, which the insurance company may decide is a fraudulent claim and deny coverage for the entire policy.  Most people will need the assistance of legal counsel or someone who is experienced in this field in order to appropriately fill out this form.  Insurance companies know this and may attempt to use any information you put into this form against you.  In a recent case we worked on, a former employee of an insurance company called a POL a “hostile adjusting tool,” meaning that this was not the typical process to determine what an insured was claiming under the policy.  If your insurance company sends you a Proof of Loss form to be completed, you should strongly consider contacting us.

An Examination Under Oath (EUO) is a sworn statement taken by a lawyer hired by your insurance company.  The lawyer will likely request various documents prior to the EUO and will review those documents prior to asking you about them.  The lawyer also has the benefit of reviewing your insurance company’s file, including your application, your policy, the Underwriting notes, the adjuster’s and investigator’s notes, and a variety of other items about you before asking you these questions.  If your insurance company requests to take your EUO, you need to contact us immediately.  EUOs take place in very few cases – the fact that they are asking for your EUO lets you know they are considering denying your claim.  A few misstatements in an EUO will certainly lead them to deny the claim.  Further, an EUO is almost always taken by an attorney – if the insurance company has decided to get their lawyers involved, why wouldn’t you want legal representation as well?

You might think that having your insurance company deny coverage for your fire loss would be the worst thing that could happen in this situation.  However, it can get even worse than that.  Many insurance policies provide for coverage for Loss of Use or Living Expense payments during the investigation of a claim.  If the company makes these payments for 6 months while they investigate your claim and then decides to deny the claim, the company may end up filing a lawsuit against you to recover these payments it has made to you in the investigation period.  Without adequate legal counsel,  after you have lost your home to a fire you could end up having your claim denied and then owing your own insurance company thousands of dollars, as well.

If you are reading this post right now and have yet to experience a fire, walk through your house and make a video of your possessions.  In this day and age where smartphones with video capabilities are everywhere, you can just grab your phone and walk through each room, panning around.  This will be invaluable in the event you ever have a fire at your house.

​If you or someone you know has experienced a fire loss, please contact Clark Mason Attorneys for assistance. 

​(501) 219-0077