Expert

Federal Rule of Evidence 702 Standard of Care for Medical Experts Requires Sufficient, Supported, and Reliable Expert Testimony

In the recent case of M.D.R. by Rivera v. Temple University Hospital, The United States District Court for the Eastern District of Pennsylvania found that under Federal Rule of Evidence 702, for a plaintiff to prove that a hospital is liable for medical negligence, the plaintiff cannot merely provide expert testimony that shows a deviation from that expert’s subjective perception of the relevant standard of care. Rather, plaintiffs must provide sufficient and reliable expert testimony as to what the relevant standard of care actually is. In M.D.R., plaintiff, through her mother, sued Temple University Hospital (“TUH”), alleging medical malpractice resulting in a birth-related injury to her arm.  TUH moved for summary judgment, arguing that plaintiff’s experts’ opinions would be inadmissible at trial because they failed to satisfy the Daubert standard on reliability. Plaintiff’s experts both opined that M.D.R.’s brachial plexus injury could only have occurred “as a direct result of the obstetrician’s application of excessive “traction” on the baby’s head and cannot be caused by the natural forces of labor.” Accordingly, the experts opined that the existence of a  brachial plexus injury was sufficient in proving that the nurses and obstetricians had breached the standard of care.  Plaintiff’s experts both reached this opinion however  without opining on what that applicable standard of care was in this situation. The court found that plaintiff’s experts’ opinions assumed facts not in evidence and were directly contradictory to almost all current and available scientific literature on the subject, including literature cited by the experts themselves.  Moreover, the court found that as a matter of law, medical experts must establish, in a Daubert-satisfactory manner, what the standard of care is for a given case, and how that standard was or was not satisfied, as opposed to merely opining that the existence of a certain injury was sufficient proof to demonstrate the breach of an abstract and undefined standard of care.  As such the court deemed M.D.R.’s expert opinions unreliable and granted TUH’s motion for summary judgment. M.D.R. is a victory for defendants in medical malpractice suits because it reinforces the role of judges as active gatekeepers in determining whether expert testimony is reliable and therefore admissible. The case therefore limits the ability of plaintiffs to use so-called expert testimony, not truly supported by the scientific community, to satisfy the expert requirement in medical malpractice suits Thanks to Stephen Kerstein for his assistance with this post. Should you have any questions, please contact Tom Bracken.Read More

Plaintiff’s Now Occasionally Entitled To Recording IMEs In NJ

Recently, the Appellate Division dealt with three separate cases consolidated into one appeal on the issue of when a plaintiff’s attorney may have a third-party attend a plaintiff’s medical exam with a defense doctor, as well as whether it is permissible for a plaintiff’s attorney to audio and/or video record his client’s exam with a defense doctor.

Difiore et. al. v. Pezic, et al. dealt with three plaintiffs against their respective defendants.  The defendants scheduled neuropsychological and orthopedic evaluations of the three plaintiffs.  Counsel for those plaintiffs insisted upon the presence of a third-party practitioner at the medical exam, as well as insisting that the exams be audio and/or video recorded.

The law on this subject dating back roughly 20 years is that the plaintiff may be entitled to “unobstructive” audio recording of a psychiatric exam if the plaintiff is claiming emotional distress.  In addition, case law allows a minor child to be accompanied by parents or other relatives during the child’s medical exam.  Normally, trial judges in this state generally prohibit any recordings or the presence of third-parties at routine orthopedic exams.

In a departure from this precedent, the Appellate Division vaguely held, in a published decision, that any disagreement over whether to permit third-party observation of any defense medical exam (including orthopedic exams of fully grown adults), are to be evaluated by trial judges on a case-by-case basis.  Moreover, it is the plaintiff’s burden to show the court that third-party presence or recording, or both, is appropriate in a particular case.  Video recordings are also now allowed, and any video taken will be allowed to be shown at trial.  Third-party observers, however, are not allowed to interact with the plaintiff or otherwise interfere with the exam. However, the Court emphasized that the presence of a third party or recording the exam required “special conditions”.

Perhaps the most egregious part of this decision is that it only applies to defense medical exams.  Plaintiff attorneys have been and remain allowed to schedule medical exams of their clients without any notice to the defense, thus providing the defense no chance to audio record, video record or have a third-party attend the plaintiff’s exam scheduled by his attorneys.  Moreover, the court expressly held that if the plaintiff’s expert is his treating physician, then there is a blanket prohibition on any of the above.  Rules for me, but not for thee.

We expect many contentious motions and appeals on this issue in the future.

Thanks to Mike Noblett for his contribution to this article.  Should you have any questions, please contact Matthew Care.

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