Legal: Facing malpractice: The expert witness, summary judgment and the lie

March 1, 2009

Dr. Skin has practiced dermatology for decades in his small-town community, and is well respected not only by his patients, but also by the local medical community for his quality of care.

Key Points

Two years ago, a patient he had followed for years developed metastatic leiomyosarcoma and died, leaving behind a wife and three children. Dr. Skin was greatly saddened by his patient's death, because he had come to know him well by virtue of the patient's strong family and personal history of skin cancer. In fact, the patient had come in yearly for total body skin examinations.

Soon after the patient's death, Dr. Skin is served papers and finds out that he is a defendant in a malpractice case brought by the estate of his now-deceased patient. The claim is based on a simple fact: Dr. Skin was so thorough in his skin exams, he should have discovered the leiomyosarcoma during his patient's skin exams.

Summary judgment

Dr. Skin seeks legal counsel and has his attorney file a motion for summary judgment dismissing the case. A summary judgment motion is approved if there is no material basis for the claim.

Dr. Skin is reassured by his many dermatology friends who agree that a reasonable dermatologist would not have discovered such a lesion.

Unfortunately for Dr. Skin, the plaintiff's attorney has found an expert (a general surgeon) who is willing to testify that a reasonable physician should have detected the leiomyosarcoma. The plaintiff's expert no longer practices medicine and earns his entire livelihood testifying as a plaintiff's expert witness. Because such an expert is found, Dr. Skin's summary motion judgment is denied by the assigned trial judge.

Dr. Skin does not understand how an expert, who in his opinion is willing to lie for a salary, can destroy his attempt to have the malpractice case thrown out of court. What are the requirements for expert witness testimony?

Expert requirements

In the famous 1993 Supreme Court case of Daubert v. Merrell Dow Pharmaceuticals, Inc., the high court said that trial judges are the gatekeepers in deciding whether to allow expert testimony. It is up to the judge to decide if evidence offered by experts is both reliable and relevant. This standard required that expert testimony must be "pertinent evidence based on scientifically valid principles."

It should be noted that this standard does not ask if the expert's testimony is correct. The focus is solely on the judge's perception that the principles and methodology used are appropriate. This approach mandates a flexible inquiry whose chief aims were evidentiary relevance and reliability.

The Daubert case required that proffered evidence be relevant and reliable. Testimony is deemed relevant if it assists the trial judge in understanding the evidence or in determining a fact at issue.

The standard is quite simple. Expert testimony is deemed relevant as long as the testimony is adequately tied to the facts of the case so as to help the jury resolve the factual dispute. Testimony is considered reliable if the testifying expert is qualified in the relevant field and the methodology underlying the expert's conclusions is trustworthy.

Being qualified is determined through "knowledge, skill, experience, training, or education." Practically speaking, this means the expertise need not be tied to any university degree or professional title. The judge has broad discretion in determining whether an expert is qualified. The judge will know that the expert is paid; he has no way of knowing if the expert is lying.

In the end, the trial judge has great discretion in admitting expert testimony.

In the case of Dr. Skin, a motion for summary judgment will be denied if the trial judge determines, perhaps based on the plaintiff's expert, that there are any material issues to be litigated. It does not necessarily mean Dr. Skin will lose his case. However, the case will not be thrown out of court.

Dr. Goldberg is the director of SkinLaser & Surgery Specialists of New York and New Jersey; director of Mohs surgery and laser research, Mount Sinai School of Medicine; and adjunct professor of law, Fordham Law School.

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