Thursday, 5 July 2012

Board Certifications for Expert Witnesses

The recent Maryland case of DeMuth v Strong has shown that some courts are widely interpereting rules relating to what specialism an expert witness can have in order to can testify about standards of care provided by someone in a different discipline.

In brief, the case involved a medical malpractice suit that resulted in the plaintiff calling an orthopedic surgeon who gave testimony about the standard of care afforded to the plaintiff by the defendant, a vascular surgeon. On appeal, the court was asked to look specifically at the question of whether a surgeon who was board certified in one specialty could give evidence about standards of care provided by a surgeon in another.

The court concluded that there was nothing improper in this - see the Judgment for a full reasoning. The relevant Maryland law provided that such an expert witness must have the "same or related specialty"  in order to be allowed to testify, and the court's reasoning seems to be that the intention of the legislature was to allow for a wide interperetation of the Act so that experts who had no knowledge of the procedures involved would not be allowed to testify, but those that did could do so.

In doing so, the court noted the relatively recent case in the Maryland District Court, Jones v. Bagalkotakar and the Virginian Supreme Court case of Sami v Varn, both of which came to the same conclusion - that provided the expert witness was not testifying about operative procedures but postoperative care and treatment of patients thereafter, this was permissible in the given circumstances.

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