Can he be an expert witness against a non-physician?

March 10, 2015

In expert witness testimony, the law requires that the expert practice health care in a field of practice that involves the same type of care of treatment as that provided by the defendant health care provider; has knowledge of accepted standards of care for providers for the diagnosis, care, or treatment of the illness, injury or condition involved in the claim; and is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care.

Dr. Expert is a well respected laser dermatologist who practices in a jurisdiction where it is perfectly legal for non-physicians to perform cosmetic laser procedures with essentially no physician supervision. Because of these permissive legal rules, many spas in Dr. Expert’s major metropolitan city provide laser and light source treatments. Some spas require direct on-site physician supervision of procedures. Other spas are poorly supervised.

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At one such poorly supervised spa, a state-licensed esthetician performed laser hair removal on an African American woman with a laser that was ideally used for lighter skinned individuals. Unfortunately the woman suffered both permanent scarring and pigmentary changes. Dr. Expert has been asked to serve as an expert for the suing plaintiff. Dr. Expert is uncomfortable in this role and has never served as a plaintiff’s expert. However he has become disgusted with lack of strict guidelines as to who can perform laser treatments. It is not that he has difficulty with non-physicians performing cosmetic laser treatments. He himself is a strong advocate of this practice as long as there is on-site direct physician supervision. He accepts his role as plaintiff’s expert witness because he is certain the case will be straightforward. It is not!

Motion to exclude testimony

Legal council for the defendant esthetician, upon finding out that Dr. Expert will testify, files a motion to exclude his testimony. The defendant’s attorney is fully cognizant that his esthetician client will be held to the same standard as a dermatologist performing laser hair removal. The motion, attempting to bar Dr. Expert’s testimony, is based on the premise that Dr. Expert is not a state-licensed esthetician and therefore should not be allowed to testify against an esthetician-even if both the physician and esthetician are ultimately held to the same standard, The defendant’s attorney has taken this stand under the assumption that it will be hard for the aggrieved plaintiff to get an esthetician to testify against another esthetician.   

What will the court decide?

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What will the court decide?

In Edward F. Group III, D.C. v. Vicento, an anesthesiologist served as plaintiff’s expert witness in a Texas malpractice action against the defendant chiropractor. Vicento, the injured plaintiff, alleged that Group, his chiropractor, was negligent in failing to comply with the standard of care. Vicento filed an expert opinion from an anesthesiologist.  Group, the chiropractor, then filed a motion to exclude the expert report. He contended that a physician was not qualified to testify as to the chiropractic standard of care because he was not a chiropractor. The court disagreed. In doing so, the court looked at the Texas expert witness statute.  The law required that the expert

  • Practice health care in a field of practice that involves the same type of care of treatment as that provided by the defendant health care provider

  • Has knowledge of accepted standards of care for providers for the diagnosis, care, or treatment of the illness, injury or condition involved in the claim

  • Is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of health care. 

Even though the anesthesiologist was not a chiropractor, he used similar methods to the defendant chiropractor; his specialty overlapped and intertwined with a chiropractic practice; and he was qualified to perform many of the same functions that chiropractors are competent to perform.

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In interpreting the statute, the Texas court explained that the statute does not require an expert to be practicing health care in the same field as the defendant health care provider (chiropractic medicine). Rather, the court ruled, the expert must practice health care in a field of practice involving the same type of care or treatment as the defendant. The physician’s expert views were accepted by the court.

Similarly, it is unlikely that Dr. Expert’s testimony will be precluded because he is not a licensed esthetician.   Even though a dermatologist is not an esthetician, Dr. Expert uses similar methods to the defendant esthetician, his specialty overlaps and intertwines with that of an esthetician; and he is qualified to perform the same functions that estheticians are competent to perform. His expert testimony will be accepted.