Friday, March 9, 2012

amednews: Arkansas court rejects expert witness provision in medical liability cases

The 2003 rule required experts to practice in the same specialty as defendant physicians.

Alicia Gallegos, Feb. 6, 2012.

The Supreme Court of Arkansas has struck down a key provision of the state's tort reform law, ruling that expert witnesses in medical liability lawsuits no longer must practice in the same specialty as defendant doctors.

The decision is another setback for physicians who have seen most reform measures overturned by the courts since the law's 2003 enactment.

"We're extremely disappointed that the state Supreme Court has decided to circumvent the will of the Legislature, which is obviously charged with representing the people of the state," said David Wroten, executive vice president of the Arkansas Medical Society. "Each provision of the tort reform was enacted for a specific purpose."

The ruling stems from a lawsuit filed by Teresa Broussard, who in 2006 underwent a parathyroidectomy performed by general surgeon Stephen Seffense, MD. After the surgery, Broussard said she noticed a burn near the incision.

She was prescribed steroids and pain medication, said Gerry Schulze, Broussard's attorney. She was released from the hospital but returned to the emergency department a few days later complaining of pain from the burn.

State courts have issued mixed rulings on tort reform provisions. During her hospitalization, nephrologist Michael Coleman Jr., MD, treated Broussard for an unrelated condition and consulted with a dermatologist about the burn, records show. Doctors told Broussard she had a second-degree chemical burn but that it should improve within two weeks, Schulze said.

Broussard sued Dr. Coleman and Dr. Seffense in 2007, accusing them of improperly addressing and treating the burn. She said their delay led to skin grafts and other painful procedures at a local burn center. The doctors denied any wrongdoing.

During discovery, a specialist in forensic medicine testified as an expert witness for Broussard. Attorneys for the doctors requested the case be thrown out because the expert witness was not in the same specialty as the physicians sued, as required by state law.

A lower court ruled for the doctors. Broussard appealed.

The Supreme Court on Jan. 19 reversed and remanded the case to the lower court. The same-specialty rule is unconstitutional because it violates the separation-of-powers doctrine, the high court said.

"The authority to decide who may testify and under what conditions is a procedural matter solely within the province of the courts ... and pursuant to the inherent authority of common-law courts," the court said in its opinion. "The trial court controls the admissibility of evidence and the determination of applicable law and always has the inherent authority to secure the fair trial rights of litigants before it."

Tort reform law weakening
The provision mandating that expert witnesses practice in the same specialty as defendants was unnecessary, Schulze said.

"A lot of times, the nature of the negligence doesn't have anything to do with the specialty," he said. The requirement led to hiring multiple expert witnesses, he added.

Schulze said the high court has procedural standards in place to ensure that expert witnesses for both sides are qualified to testify. Procedural court rules provide judges with the discretion to decide whether a witness has enough knowledge to act as an expert.

The ruling will make it more difficult for lawsuits to be dismissed early, said Vicki Bronson, an attorney for the doctors. She believes the lower court will again throw out the Broussard case.

The plaintiff's expert witness is unqualified to testify, regardless of the same-specialty rule being overturned, she said. The defense plans to prove the witness does not meet procedural court criteria for qualified experts.

The court's decision means expert witnesses have the potential to hold physicians to a different standard of care than their specialty is otherwise required to provide, Wroten said. Although the ruling doesn't stop a judge from excluding witnesses, it sends the message that tort reforms enacted by the state will not stand.

When the state's reform package was approved, the provisions said that a liability suit could not proceed without an affidavit of merit, that cases be filed in the same county where the alleged negligence occurred and that plaintiffs could sue only for medical costs owed as opposed to billed charges. The reforms addressed joint and several liability and incorporated the expert witness rule. Courts in the state have thrown out all but the venue and joint and several liability provisions.

It's too early to tell how the Broussard case will impact the medical liability market, Wroten said. But doctors expect the court rulings against reform provisions probably will erode the reform law's success. Improvements due to the law included more medical liability insurance carriers coming to the marketplace and a slowed growth rate of insurance premiums for doctors, Wroten said.

In recent years, state courts have issued mixed rulings on tort reform provisions. The 5th District Court of Appeals in Texas in September 2011 upheld the state's certificate-of-merit requirement for medical liability cases. The Maryland Court of Appeals in 2009 validated a measure requiring certain qualifications for expert witnesses in medical liability cases, including that the witness must be involved in active participation in the medical profession and contribute in some form to its advancement.

However, the Washington Supreme Court in 2009 ruled unconstitutional a state law requiring plaintiffs, as the start of a lawsuit, to submit a statement from a medical expert certifying there is a reasonable basis for a suit's allegations.

Case at a glance
Is an Arkansas requirement that expert witnesses be the same specialty as defendant doctors constitutional?

The Supreme Court of Arkansas said no. The court overturned the requirement, ruling that the provision violated the separation of powers doctrine.

Impact: Expert witnesses in medical liability cases can practice in specialties other than that of the physician sued.

Teresa Broussard v. St. Edward Mercy Health System Inc., Supreme Court of Arkansas, Jan. 19

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