Locality Rules and Qualifying Testifying Medical Experts
- Published: Tuesday, 09 December 2008 10:25
Health care practitioners have a code of ethics to which they must adhere. Because of the Hippocratic Oath, and the underlying power of their state and national licenses, they are held to a high ethical standard in their medical practice. Patients place their trust in physicians, and thus physicians are bound by this trust. Doctor-patient relationships by nature have open confidential communication as its foundation. In this context ethical principles must be strictly adhered to.
It is prudent strategy to have a testifying medical expert who is board-certified in the same medical specialty as the defendant physician. This ensures that the expert has the proper training to testify regarding the standards of care of the defendant practitioner with similar medical training. In this way, the expert cannot be impugned for being underqualified.
In Short v. Atlantic Care Regional Medical Center, the medical malpractice action was dismissed, the dismissal being upheld on appeal, for failure to provide an affidavit of merit from a medical expert qualified to comment on the relevant standards of care. The plaintiff filed an affidavit of merit from a general practitioner who was determined to be NOT statutorily competent to provide an opinion as to whether the defendant Board-certified Orthopedic Surgeon had deviated from accepted standards of practice under the Affidavit of Merit statute in that State.
By now most trial attorneys have heard about the case Levine v. Wyeth which will be argued before the U.S. Supreme Court on November 3, 2008. Ms. Levine is a 60'ish year old Vermont women who inadvertently had the drug Phenergan injected by "IV Push" into a hand artery by a physician's assistant. This led to gangrene and amputation of her hand and then later her arm up to her elbow. The medical negligence case was settled last year for $700,000.00. Levine has now sued Wyeth in a product liability action alleging that the product labeling is inadequate. She contends that the Phenegan label should state that it should never be given by direct "IV push".
Let me introduce myself. I am Dr. Barry Gustin, a California-based practicing Emergency Physician and Toxicologist, Public Health consultant and Forensic Expert who has worked in the medical-legal field as a consultant and testifying expert for several decades.