Many years ago, in a Nebraska gynecological case alleging medical malpractice, an oncologist testified favorably as to the applicable standards of care relating to the defendant physician. After the jury returned a verdict for the defense, the plaintiff appealed this inclusion of this expert witness’ opinions to the jury. The Nebraska Court of Appeals upheld the decision in Hoffart v. Hodge, M.D, 9 Neb. App. 161, 609 N.W.2d 397 (2000). The appellate court reasoned that testimony of qualified medical physicians cannot be excluded only because they are not specialists in a particular school of medical practice, but instead, expert and skilled witnesses must be considered qualified to testify in a case if, and only if, the proposed expert witness possess special skill or knowledge respecting the subject matter involved so superior to that of lay persons as to make the expert witness’ opinions a fact of probative value.
However, in a case decided last week by the New Jersey Supreme Court, there may be an evolving trend to limit expert testimony in medical malpractice cases to physicians not with similar experience, but instead to physicians with the same experience.
In an opinion released on April 25, 2013 in Edward Nicholas v. Dr. Christopher Mynster, the New Jersey Supreme Court unanimously held that an expert witness with a specialty of hyperbaric medicine could not testify regarding the standard of care exercised by physicians practicing the specialties of family medicine and emergency medicine. The Court instead required that experts testifying against defendant physicians must practice the same specialty as the defendants.
Opponents of this rule argue that it will drive up the cost of litigation and will prevent injured patients from presenting their case to a jury. Proponents counter that the decision is fair and equitable and experts should have to practice in the same specialty about which they are testifying. The hope of proponents is that the requirement would help eliminate the “hired gun” expert and reduce the number of friviolous claims.
The law in Nebraska presently allows a physician from one specialty to testify regarding the standard of care exercised by a physician practicing a completely unrelated specialty. Because the Nicholas decision was based in large part on a New Jersey statute governing the qualification of experts, it seems that case will have little impact in Nebraska. However, the trend is moving toward requiring experts to practice the same specialty as the physicians about whom they are testifying. We would encourage Nebraska to adopt a statutory restriction on expert witness qualifications similar to New Jersey’s. Such a restriction would promote fairness and help eliminate frivolous lawsuits.