How Will the Federal Expert Evidence Standard Impact Medical Malpractice Cases in MarylandSeptember 21, 2020
When a patient files a medical malpractice lawsuit against a health care provider or hospital, the patient must prove that the health care provider failed to meet the professional standard of care. To do this, the testimony of a medical expert witness is essential to the case, as they can explain why the patient’s health care provider was negligent. A medical expert will be able to sort through complex medical information about the case and present it in a way that the members of the jury, most of whom are not doctors, can understand. Maryland recently joined the majority of states who adopted the Daubert standard, a federal standard used to determine when a jury can hear expert testimony based on scientific evidence. The ruling will impact cases that involve scientific or highly technical issues, including medical malpractice cases.
Why Do I Need Expert Testimony in My Medical Malpractice Case?
Expert testimonies are important in medical malpractice cases because they can present complex scientific, medical jargon in a way that juries can understand. When the jury has a more thorough understanding of the facts of the case, they are able to make an informed decision about the case. All medical malpractice cases have two key elements, including the standard of care and if there was a breach in the standard of care, which compromised the health and safety of the patient. Medical expert testimony addresses the following two components:
- Standard of care is the type of care that another doctor with a comparable background would have provided in a similar situation. An expert medical witness will provide testimony as to whether the health care provider failed to meet the standard of care when treating the patient.
- The medical expert will testify as to whether the breach of care caused the patient’s injury or health complication.
In medical malpractice cases in Maryland, the expert witness must sign an affidavit of merit before the malpractice case can be brought to court. This document must include the following information:
- Location where the expert medical witness is licensed to practice medicine.
- The medical expert’s opinion that the health care professional failed to uphold the standard of care when treating the patient, which caused the patient to suffer damages.
- The medical expert may not devote more than 20 percent of his or her annual work to providing medical expert testimonies for malpractice cases.
What are the Qualifications of an Expert Medical Witness?
In most cases, the expert medical witness is a health care provider who specializes in the same field as the doctor being sued. To qualify to be an expert medical witness in Maryland, the individual must meet the following qualifications:
- The expert witness must have clinical experience.
- He or she must have conducted a consultation related to clinical practice.
- He or she must have worked or taught in the same medical field as the defendant who treated the patient. This must have occurred within five years of the alleged medical malpractice.
- The witness must be board certified in the same area of medicine as the doctor who is being sued.
What is the Frye Standard?
The Frye standard, also known as the general acceptance test, states that the basis of an opinion must be shown to be generally accepted as reliable within the expert’s relevant scientific community before it can be received as evidence. If an expert opinion is not supported by evidence, including multiple studies, or is not backed by a given scientific community, the evidence is considered inadmissible.
Article VII of the Federal Rules of Evidence covers the admissibility of expert witness testimony. Rule 702 is a core element of Article VII, as it guides the court’s analysis in determining whether expert testimony should be admissible. The decision should be based on the following:
- The medical expert’s scientific, medical, or other specialized knowledge will assist the trier of fact.
- There are sufficient facts and data to support the testimony.
- The testimony is the result of reliable principles and methods.
- The expert has applied the principles and methods to the facts of the case.
After the Supreme Court held that the Federal Rule of Evidence 702 overruled the general acceptance test, 38 states replaced the Frye standards with Daubert. Maryland was one of the few states that did not make this change. However, Maryland’s standard gradually began to adopt certain Daubert principles, which changed how Maryland courts handled testimonies from expert witnesses. The recent complete leap to Daubert has refocused the court’s attention away from acceptance of a given methodology to the reliability of a methodology used to achieve a particular result.
What is the Daubert Standard of Expert Admissibility?
Admissibility of an expert opinion is based on several factors, one of which is the Daubert standard, which was named after the Supreme Court case Daubert v. Merrell Dow Pharmaceuticals Inc. Several plaintiffs involved in the case had claimed that their mothers had taken a Merrell Dow drug during pregnancy, which caused the plaintiffs to suffer birth defects. The plaintiffs claimed that pharmaceutical research indicated that there was a direct link between the drug and their birth defects, but the trial court ruled that the evidence did not rise to the level of general acceptance within the scientific community. After the Court of Appeals chose not to rule on the dispute, the Supreme Court heard the case and established a new standard for admissibility of evidence.
The Daubert test replaced the general acceptance standard. Although the general acceptance should be considered as one factor, courts should also consider whether the expert’s theory has been tested and peer reviewed, if there are standards that apply, and whether the medical expert accounted for other explanations. According to the Maryland appeals court, the old standard was occasionally based on poor science and was not a good gatekeeper for epidemiology, psychology, and other scientific fields. Under the Daubert standard, expert evidence would be subject to the following guidelines:
- The judge overseeing the case will be the gatekeeper of the evidence and determine whether the expert’s testimony is based on scientific knowledge. General acceptance is not required, only that the expert’s opinion is logically and scientifically sound.
- The judge must determine whether the evidence is relevant and reliable and ensure that the testimony is relevant to the task at hand, resting on a reliable foundation.
- A sound scientific method will be used as a qualifier of scientific knowledge, rather than the general acceptance.
- The court will consider the following illustrative factors of the scientific method when considering expert evidence:
- Whether the expert’s theory or technique is generally accepted in the medical community.
- The theory has been subjected to peer review and publication.
- The theory has been tested.
- The research was conducted independently.
After the Supreme Court ruling on the Daubert case, Rule 702 was amended to allow for consideration of the following factors established in Daubert:
Testimony by experts: A witness who has the skills, knowledge, experience, training, or education necessary to qualify as an expert witness may testify if:
- The expert witness’ scientific knowledge will help the trier of fact understand the evidence being presented, or to determine a fact in issue.
- The testimony is based on sufficient facts or data.
- The testimony is the product of reliable principles and methods.
- The medical expert has applied the principles to the facts of the case.
Until fairly recently, expert witnesses who testified in court were immune from any civil liability resulting from their testimony. However, the courts found that an increasing number of expert testimonies are not always truthful. In at least one medical malpractice lawsuit, the patient sued the testifying experts for discussing the patient’s condition with opposing counsel. There are ethical conflicts as well, particularly if a medical expert benefits financially for their testimony. Testifying medical experts are no longer granted immunity against a lawsuit related to their testimony.
Baltimore Medical Malpractice Lawyers at LeViness, Tolzman & Hamilton Seek Justice for Victims of Medical Negligence
If you or a loved one was injured, or your health was compromised in some way while under the care of a health care professional, it is in your best interest to contact the Baltimore medical malpractice lawyers at LeViness, Tolzman & Hamilton at your earliest convenience. Our dedicated legal team will thoroughly review your case and walk you through every step of the claims process, including identifying a health care professional who has the qualifications necessary to act as an expert medical witness in your case. To schedule a free consultation, call us today at 800-547-4LAW (4529) or contact us online.
Our offices are conveniently located in Baltimore, Columbia, Glen Burnie, and Prince George’s County, where we represent victims throughout Maryland, including those in Anne Arundel County, Carroll County, Harford County, Howard County, Montgomery County, Prince George’s County, Queen Anne’s County, Maryland’s Western Counties, Southern Maryland and the Eastern Shore, as well as the communities of Catonsville, Essex, Halethorpe, Middle River, Rosedale, Gwynn Oak, Brooklandville, Dundalk, Pikesville, Parkville, Nottingham, Windsor Mill, Lutherville, Timonium, Sparrows Point, Ridgewood, and Elkridge.