In any medical malpractice case where a plaintiff claims your physician-client violated the applicable standard of care, one of the defense attorney’s first tasks is—or should be—to identify an expert to defend your client’s treatment. At first glance, this task seems straightforward. After all, the simple goal is to identify a person that can vouch for the care your client provided. But states maintain distinct standards that sometimes differ as to who can do the vouching.
Nebraska practitioners are likely familiar with their state’s own standard. In Nebraska, a proposed expert physician can testify regarding another physician’s compliance (or lack thereof) with the applicable standard of care if the proposed expert has “personal knowledge of, and familiarity with, the customary practice among medical professionals in the same or similar locality under like circumstances.” Bank v. Mickels, 302 Neb. 1009, 1018, 926 N.W.2d 97, 104-05 (2019). Therefore, Nebraska maintains no per se requirement that the proposed expert must practice in the identical field or specialty as the physician whose conduct is at issue. See Hoffart v. Hodge, 9 Neb. App. 161, 171-72, 609 N.W.2d 397, 406 (2000) (rejecting argument that only Ob-Gyns can provide testimony as to whether an Ob-Gyn defendant met the standard of care); Vilcinskas v. Johnson, 252 Neb. 292, 296, 562 N.W.2d 57, 61 (1997) (stating “the testimony of qualified medical doctors cannot be excluded simply because they are not specialists in a particular school of medical practice.”). One simply must have knowledge and familiarity with the applicable standard of care to provide expert testimony.
But Iowa maintains a more stringent standard. Specifically, under Iowa Code § 147.139:
. . . [T]he court shall only allow a person the plaintiff designates as an expert witness to qualify as an expert witness and to testify on the issue of the appropriate standard of care or breach of the standard of care if all of the following are established by the evidence:
- The person is licensed to practice in the same or a substantially similar field as the defendant, is in good standing in each state of licensure, and in the five years preceding the act or omission alleged to be negligent, has not had a license in any state revoked or suspended.
- In the five years preceding the act or omission alleged to be negligent, the person actively practiced in the same or a substantially similar field as the defendant or was a qualified instructor at an accredited university in the same field as the defendant.
- If the defendant is board-certified in a specialty, the person is certified in the same or a substantially similar specialty by a board recognized by the American board of medical specialties, the American osteopathic association, or the council on podiatric medical education.
The statute also provides:
- If the defendant is a licensed physician or osteopathic physician under chapter 148, the person is a physician or osteopathic physician licensed in this state or another state.
- If the defendant is a licensed podiatric physician under chapter 149, the person is a physician, osteopathic physician, or a podiatric physician licensed in this state or another state.
Therefore, in Iowa, it is not enough that a proposed expert witness is familiar with the relevant standard of care. Instead, the proposed expert must be licensed in the same specialty as the defendant, certified with the same or substantially similar board as the defendant (if the defendant maintains such certification), and must have recently maintained an active practice in the same or substantially similar field. Simply stated, these stringent standards have teeth. See Ward v. United Healthcare, No. 20-1516, 2021 Iowa App. LEXIS 1039, *13-17 (Iowa Ct. App. Dec. 15, 2021) (affirming decision that emergency medicine physician was unqualified to testify regarding treatment provided by hospital administration, nurses, radiologists, surgeons, or hospitalists).
The differences between Nebraska and Iowa’s expert qualification standards provide a simple lesson: though a physician may be qualified to offer expert testimony on a particular subject in one state, that same physician may not be qualified to offer testimony on that same subject in another state. Particularly when engaging in multi-state practice, lawyers should keep in mind the potential that states may maintain disparate expert qualification standards.