The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to give standard of care testimony against physicians? Cross-disciplinary standard of care testimony against physicians has been provided by an array of non-physicians: a biomechanical engineer, a pharmacist, a nurse, pharmacologists, and a pharmacologist/toxicologist. Is cross-disciplinary standard of care expert testimony an aberration? Does it reveal a failure of trial courts to understand the practice of medicine and knowledge of the standard of care? These topics are the primary focus of this paper.
o be fair, it should be noted that the reasoning of some courts topermit or exclude non-physician, cross-disciplinary expert testimonymay be informed by state rules of evidence, rules defining expertwitness requirements, or rules pertaining to lawsuit filingrequirements. Those rules may be unclear and require interpretation.Therefore, rules such as these are not the focus of this paper. Instead,this paper focuses on how courts understand medicine, the standardof care, and the professional, experiential distinction betweenphysicians and non-physicians. Ultimately, this paper recommendsthat trial courts should not permit non-physicians to opine thatdefendant-physicians have deviated from the applicable standard ofcare while recognizing that as more medical care is provided by nonphysicians,courts may decline this recommendation
Available at: http://works.bepress.com/marc_ginsberg/67/