One of the essential elements in a medical malpractice case is testimony from a qualified expert witness that the defendant health care provider failed to meet “the standard of care” expected of a competent health care provider under the circumstances. The standard of care is a crucial concept. It is rarely written down, which makes it the subject of conflicting testimony by the medical professionals. The defendant doctor and his hired expert always testify that the care provided by the defendant doctor met the standard of care. On the other hand, the expert hired by the patient testifies that the standard of care was not met. Depending on the nature of the case, there may be medical literature, hospital rules or a manufacturer’s warnings which provide some assistance to the jury in resolving this dispute about the standard of care.
A patient cannot bring a case unless he or she can find a qualified health care provider, who is willing to testify that the defendant fell below the standard of care. Various states have differing rules about what it takes to be a qualified expert witness. Arizona’s are quite restrictive. In order to be qualified to testify, the health care provider must be of the same specialty or even subspecialty as the defendant. The expert must have the same qualifications as the defendant. For example, if the defendant is Board Certified, so must be the expert witness. Lastly, the expert must have been in active practice within a year preceding the event in question. He or she must have been devoting at least 50% of his or her professional time during the year preceding the event to either the practice of the specialty or to qualified teaching about the specialty. See A.R.S. 12-2604. It is often difficult to find a qualified expert willing to testify for an injured patient.
In most cases, the attorney for an injured patient must look out of state to find a qualified expert willing to testify. Even health care professionals who are sympathetic to the plight of patients injured by medical negligence are reluctant to testify against defendants who practice in the same state. The witness and the defendant are often members of the same state medical society and may see each other at professional functions from time to time. Running into each other may be embarrassing for both of them. They may not practice at the same hospitals but the defendant’s friends might practice at the same hospitals as the witness. Potential expert witnesses are often concerned that friends of the defendant or just other doctors who resent those who testify for patients will make trouble for them at the hospital or before the state medical board. These are legitimate concerns and the doctors who are willing to testify on standard of care against doctors from their own state are few and far between. This, of course, confers an advantage on the defendant who can often call a local doctor at trial and point out that the patients’s doctor witness has never even practiced in Arizona.
Another stumbling block to finding a qualified expert witness willing to testify for the patient is the outright refusal of many qualified doctors to even consider doing so. At a recent trial of mine, the expert for the defendant admitted that he would never testify for an injured patient, regardless of how meritorious the patient’s claim might be. While this is certainly that doctor’s right, it skews the process and provides still another advantage to the defendant, who never has to worry that other doctors might be reluctant to testify for him or her. Sometimes, other doctors are lined up to testify on behalf of a defendant.
In a perfect world, doctors who rail against malpractice cases which they see as lacking in merit would recognize their ethical responsibility to testify for a patient in a meritorious case. Not only would it be ethical to do so, it would benefit society as a whole by helping to assure that justice is done. Unfortunately, we all know that our world is less than perfect and some doctors seem to go out of their way to prove it over and over and over.
