Over the past dozen years, qualifying out-of-town malpractice experts has become a nightmare. Trial courts have grown accustomed to rejecting any expert who is unable to regurgitate detailed demographic data for the community where the alleged malpractice occurred.
But a recent North Carolina Court of Appeals opinion appears to signal a change in the weather.
In Day v. Brant, the court held that standard of care experts in a medical malpractice case will be permitted to testify when they are familiar with the defendant’s training and experience and are familiar either with the prevailing standards of practice in the defendant’s community or in a similar community.
In reaching its decision, the court outlined a framework for getting expert witnesses past vigilant, and oftentimes unfriendly, trial court gatekeepers. At a minimum, designated experts should undertake the following:
• Review the deposition testimony of the defendant physician and all other witnesses to attain a working familiarity with the prevailing standards of practice in the community at issue.
• Give testimony in their discovery depositions and in voir dire showing that the standards of practice articulated by the defendants are the same as the standards existing in the expert’s medical community.
• Review the websites for the defendant-physician’s practice group to acquire further familiarity with the applicable standard of care.
• Review and attain a working, conversational familiarity with demographic data for the community in which the alleged malpractice occurred.
• Review data regarding the resources and services that are available at the hospital or other facility where the plaintiff was treated.
• Testify that he or she has consulted with practitioners in communities similar to the community at issue and determined that the standards in those communities are similar to the standards existing in the community at issue.
• Explain the specific efforts and research undertaken to attain familiarity with the applicable standard of care, rather than offering a blanket statement of familiarity.
The court also had a word to say about the uniform or national standard of care issue. For years, mere mention of such a standard would disqualify an expert. This should no longer be the case.
In Day, the expert testified that the standards of practice at Level Two trauma centers are governed by the same standards of practice, regardless of where they are located. In times past, experts giving such testimony would be flirting with disaster. But the expert in Day repeatedly insisted, under withering questioning by counsel for the defendant, that he had applied the standards of practice existing in the community at issue in forming his opinions. This testimony, the court held, was not disturbed by the expert’s belief that the standard of practice at Level Two trauma centers was the same at hospitals across the country.
The Day court provides counsel with a much-needed outline for qualifying expert witnesses in malpractice cases. Counsel should ensure that designated experts are able to hit each touchstone articulated by the Court of Appeals, both at their discovery depositions and at trial.
The opinion also offers much needed guidance to trial courts, making clear that judges should not apply the same or similar community standard mechanically. Rote recitation of irrelevant demographic data should not be the measure of an expert’s qualification to offer testimony at trial. Rather, in performing their gate-keeping function, trial courts should ensure that experts have undertaken reasonable efforts to acquaint themselves with the standards of practice existing in the community at issue and measured the conduct of the defendant against those standards.
In so doing, the court has provided much needed relief to those of us who have been forcing experts to memorize population numbers, economic figures, census data and other nonsense just to get experts in front of a jury.
And this relief has been a long time coming.