DON'T LITIGATE WITH THE WRONG MEDICAL EXPERT

We have already shown the folly of attempting to litigate a medical malpractice case without a medical expert. It can also be foolish to litigate with the wrong medical expert – that is, using an inappropriate medical specialist. As a general rule, the plaintiff’s medical expert should have the same professional qualifications as the defendant physician.

In Short v. Atlanticare Regional Medical Center, the plaintiff’s medical malpractice action was dismissed, the dismissal being upheld on appeal, for failure to provide an affidavit of merit from a medical expert qualified to comment on the relevant standards of care. The plaintiff filed an affidavit of merit from a general practitioner who was determined to be NOT statutorily competent to provide an opinion as to whether the defendant Board-certified orthopedic surgeon had deviated from accepted standards of practice under the Affidavit of Merit statute.

The proof of negligence requires evidence that the defendant’s health care provider failed to conform to the conduct required of a reasonable person acting in the same or similar circumstances.  The expert must be familiar with the knowledge and skill possessed and employed by similar professionals. That is, if the treatment falls within a particular branch or medical specialty, the expert, although he need not be certified in that particular specialty, must have sufficient education and experience to testify as to the skill and care required of a person rendering care in that specialty.

In Short v. Atlanticare Regional Medical Center, the court concluded that the plaintiff expert, a general practitioner, did not have the education, knowledge, and experience to conclude that the defendant orthopedic surgeon had deviated from the appropriate standards of care.