Expert Testimony in the Curtis Lovelace Murder Trial

Perils of Hiring the Wrong Expert

Written on Thursday, April 20th, 2017 by T.C. Kelly
Filed under: Working with Experts

Finding the right expert to testify on a party’s behalf is often the key to success in bringing or defending against a legal claim. That’s particularly true when the law requires expert testimony to prove the claim. Medical malpractice, for example, can usually be established only when an expert testifies that a health care provider failed to provide the appropriate standard of care.

Some states have narrowed the range of experts who are allowed to testify in medical malpractice cases, regardless of their qualifications. Those laws make it all the more essential to be certain that an expert has the credentials that state law requires. Here are two recent examples.

Rutyna v. Schweers

Rutyna v. Schweers is a non-precedential decision of a three-judge panel of the Pennsylvania Superior Court. Aldis Rutyna and his wife sued William Schweers, an attorney, for legal malpractice. They alleged that Schweers was negligent in bringing a medical malpractice claim against a physician who allegedly injured Rutyna during back surgery. The medical malpractice case was dismissed after Schweers failed to file a certificate of merit in accordance with Pennsylvania law.

Pennsylvania law required the Rutynas to prove that they would have prevailed in the medical malpractice lawsuit in the absence of Schweers’ negligence. Schweers contended that he had an expert review the case, that the expert concluded the surgeon was not negligent, and that Schweers accordingly decided he would be unable to obtain a certificate of merit. The Rutynas countered with the expert opinion of an attorney who concluded that contacting only one expert in a medical malpractice case is insufficient to meet the standard of care required of medical malpractice attorneys.

Schweers then took the position that the Rutynas could not prove the surgeon committed malpractice because no expert could credibly testify that the surgeon failed to adhere to the appropriate standard of care during surgery. The Rutynas offered the expert opinion of Dr. Mark Foster to prove the surgeon’s medical negligence.

Unfortunately for the Rutynas, Pennsylvania law prohibits an expert witness from testifying against a physician in a malpractice case unless the expert practices in the same sub-specialty as the physician who is alleged to be negligent. Dr. Foster no longer practices as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify as an expert in the Rutynas’ medical malpractice case.

After the trial court ruled that Dr. Foster was not qualified to testify, Rutyna asked for a continuance so he could find another expert witness. The trial court denied that motion and dismissed the case.

On appeal, the Superior Court concluded that sufficient evidence supported the trial court’s view that Dr. Foster no longer practiced as an orthopedic surgeon and thus was not qualified under Pennsylvania law to testify about the standard of care an orthopedic surgeon should follow.

The Superior Court also concluded that the trial court did not abuse its discretion in denying a continuance. The fact that Dr. Foster did not practice in the same sub-specialty was a fact that the Rutynas’ attorney should have known, and it was not unreasonable for the judge to decide that a very old case should not be further delayed under those circumstances.

Mendoza v. Inspira Medical Center

In a similar case, a federal judge in New Jersey recently granted summary judgment in favor of medical malpractice defendants because the plaintiff’s expert witness was deemed to be unqualified. Gladys Mendoza alleged that the death of her husband in February 2015 was caused by negligent kidney treatment in March 2014. Mendoza sued Dr. Naeem Amin, Kidney and Hypertension Specialists PA, and Inspira Medical Centers Inc.

New Jersey’s Affidavit of Merit Statute requires an expert witness who testifies as to the applicable standard of care in a medical malpractice case to “have specialized at the time of the occurrence that is the basis for the action in the same specialty or subspecialty, recognized by the American Board of Medical Specialties or the American Osteopathic Association, as the party against whom or on whose behalf the testimony is offered.”

Mendoza offered the testimony of Dr. Bruce D. Charash who, like Dr. Amin, was board certified in internal medicine. However, Dr. Amin was certified in the subspecialty of nephrology while Dr. Charash was certified in the subspecialty of cardiology.

It may well be that Dr. Charash had sufficient training and experience to offer meaningful testimony about the standard of care that a nephrologist should provide. The court ruling makes clear that under New Jersey law, actual expertise does not matter if the expert witness is not certified in the same subspecialty as the defendant. The judge ruled:

Allowing a cardiologist to testify that delaying or denying the decedent’s dialysis treatment departed from the standard of care expected of nephrologists would effectively undo the kind-for-kind requirement in contravention of the Affidavit of Merit statute and the New Jersey Supreme Court’s interpretation of it.

The court noted that the New Jersey statute does not apply when claims are within the common knowledge of the jury, but disagreed with Mendoza’s argument that alleged understaffing at Inspira was an issue about which the jury could draw conclusions without the guidance of an expert.

Since Mendoza did not provide an affidavit of merit from a physician who practiced in the same subspecialty as the physician she sued, the court dismissed her claim.

Lessons Learned

Health care providers and their insurers argue that laws like those in Pennsylvania and New Jersey are necessary to protect doctors from lawsuits that are supported by the opinions of experts who are not qualified to assert those opinions. Lawyers who represent injury victims argue that the statutes shield health care providers from the consequences of their negligence by barring experts who may be well qualified to offer an opinion about the standard of care, even if they were not practicing (or not practicing in the defendant’s subspecialty) at the time the alleged malpractice occurred.

The lesson to be learned is that medical malpractice attorneys in states that limit the range of qualified experts who can give admissible testimony must undertake a diligent search for an expert who has the necessary qualifications.

Malpractice attorneys should also be aware that, under a statute like New Jersey’s, they can ask the court to waive the statutory requirement if they make a “good faith effort … to identify an expert in the same specialty or subspecialty” and, having failed to find one, are offering an expert who “possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of, medicine in the applicable area of practice or a related field of medicine.” Of course, whether a court will be satisfied with the attorney’s “good faith effort” is difficult to predict, so locating an expert who has the statutory qualifications is always a better option.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.