The Pitfalls of an Overly Qualified Expert Witness

What Is the Standard of Care?

At the time the suit was commenced, Dr. Rezzi was board-certified in pediatrics and was engaged in private practice. In fact, after completing her residency and fellowship, Dr. Rezzi never worked at a hospital, but focused on her pediatric practice in northern New Jersey. The only hospital she has been affiliated with is St. Francis, which never acquired a PICU.

If Dr. Rezzi had been a licensed, board-certified pediatrician at the time of the alleged malpractice, there would be no question as to the standard of care to which she should be held, and the qualifications of any proposed expert witnesses. However, since she was a second-year resident at the time of the actions in issue, the question arises: What is the standard of care to which Dr. Rezzi should be held? (Many readers may question whether the circumstances outlined above are in any way controlled by the New Jersey Supreme Court's recent decision in Nicholas v. Mynster, 213 N.J. 463 (2013) [holding that the Patients First Act requires that a plaintiffs' medical expert have the same specialty or subspecialty as defendant physicians]. However, Nicholas and The Patients First Act, N.J.S.A. ' 2A:53A-41, are inapplicable since the cause of action accrued before the statute was approved on June 7, 2004, and Dr. Rezzi was not board-certified at the time of the alleged malpractice.)

Case Law

Based on the decision in Clark v. Univ. Hosp.-UMDNJ, 390 N.J. Super. 108 (App. Div. 2006), the answer is straightforward, but it leads to more difficult inquiries. In Clark, the issue was whether residents should be held to a lesser standard of care because of their position as residents. In that case, the defendant, Dr. Raquel Forsythe, was in her fourth year of residency. She also had completed an additional year of research after completion of medical school. Acting as the chief resident, she referred to herself as a “doctor” and held herself out as “able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.” Ultimately, the Appellate Division held that the standard of care for medical residents at hospitals, who were in training for their medical specialties, was that applicable to “general practitioners” of medicine.”

Preliminarily, the Appellate Division delineated a specific requirement that must be examined to determine if a physician can be deemed a “general practitioner.”

In support of its decision, the Appellate Division cited with approval a Michigan case, Bahr v. Harper-Grace Hosps., 198 Mich. App. 31, rev'd in part on other grounds, 448 Mich. 135 (1995). There, the court found that: 1) The applicable standard of care for general practitioners is that of the local community or similar communities; but 2) The standard of care for a specialist is a nationwide standard. And interns and residents are not specialists.'

This issue of local or similar communities versus nationwide is not addressed below, but, suffice to say, clever counsel could come up with arguments supporting either side.'

Another case of interest is Liguori v. Elmann, 191 N.J. 527 (2007), in which the New Jersey Supreme Court was asked to determine whether the trial court improperly charged the jury with respect to the standard of care applicable to the defendant. The defendant was a cardiac surgery assistant/fellow who had previously completed a two-year surgical residency program and worked as a house surgeon. The trial court instructed the jury that the surgeon defendant was to be held to the same standards as a “general practitioner.” Ultimately, the Liguori court held that the trial court's charge to the jury did not constitute reversible error. The court explained that the New Jersey Supreme Court noted in Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537 (2002), that “board certification and eligibility for board certification are considered to be indicators of a doctor's status as a specialist.”

Applying Case Law to the Claim Against Dr. Rezzi

Under the reasoning of Ligouri and Clark, at the time of the alleged malpractice, Dr. Rezzi was not a specialist ' and the proper standard that applies to residents like her is that of a “general practitioner.”'

These holdings next lead to another inquiry: Who is qualified to offer opinions as to what deviation from the standard of care for a general practitioner would be? Put another way, who is an appropriate expert to offer opinions against Dr. Rezzi? As most attorneys know, practically every field has a Board Certification, and all expert witnesses have a specialty; for example, Family Care, Pediatrics, Cardiology, OB/GYN, etc.'

To support Miley's claims that Dr. Rezzi deviated from accepted standards of care, her attorney retained the services of a board-certified pediatric critical care physician, i.e., an intensivist. A review of this expert's report evinces that the standard of care she applied to Dr. Rezzi's conduct is that of an intensivist. In fact, at the expert's deposition, she was unaware that Dr. Rezzi was a second-year resident in 1992. The expert was also unaware that Dr. Rezzi never practiced as an intensivist.'

In defending Dr. Rezzi's actions, a board-certified pediatrician was retained. Similar to Dr. Rezzi, her expert is not an intensivist and never worked at a hospital that housed a PICU.'

Given these facts, the issue arises as to whether Miley's expert is suitably qualified ' or, more pointedly, whether the intensivist is overly qualified? Another issue is whether Dr. Rezzi is prejudiced insofar as the care she provided (as a resident) is being examined and critiqued by an intensivist? Further, is Dr. Rezzi prejudiced, since an argument can be made that the intensivist has more (possibly unnecessary) qualifications than her expert? Based on the above, should Dr. Rezzi file a Motion to Bar and, if so, would she be successful? Similar to other discovery motions, a trial court has inherent discretionary power to bar an expert witness and, depending on the judge, county, case and issues, a Motion to Bar may be granted.”

Motion to Bar

In support of a motion to bar, Dr. Rezzi could argue that Dr. Pedigree is attempting to hold Dr. Rezzi to the standard of care applicable to an intensivist, as opposed to a general practitioner. A general practitioner would be engaged in any and all types of medical care or treatment permitted by a license to practice medicine. While a general practitioner must hold a medical license, the scope of his or her practice runs the whole gamut of medical science ' clearly not a specialized pediatric intensivist.'

An argument could be made that Dr. Rezzi is prejudiced, since Miley is improperly attempting to alter the standard by which Dr. Rezzi's conduct is examined. The case of State v. Van Dyke, 361 N.J. Super. 403 (App. Div. 2003) is instructive; it explicitly disapproved of an attempt to introduce testimony that would “allow the jury to measure defendant's conduct by a standard other than the norm governing the general population.”'

If a court were not persuaded by the above arguments, Dr. Rezzi could always assert that the introduction of an expert who possesses unnecessary qualifications would be unduly prejudicial and would mislead a jury in violation of New Jersey Rules of Evidence 403. Further, given the excessive experience and qualifications of this expert, permitting her to testify might lead to a jury affording disproportionate weight to the testimony. New Jersey Courts have explained that expert testimony is not to be given greater weight than other evidence and should not be afforded greater weight than it otherwise deserves in light of experience and common sense. See In re Yaccarino, 117 N.J. 175, 196 (1989).

Conclusion

At the end of the day, even if Dr. Rezzi's Motion to Bar were successful, the likely result would be that Miley would be afforded additional time to retain an expert who is “suitably qualified.” Discovery would then be further extended. But if the possiblity of prejudice to the defense is real, it might be worth the delay and added expense to make the attempt to block the testimony of the overqualified expert.

Robert E. Spitzer, a member of this newsletter's Board of Editors, is an attorney with Post, Polak, Goodsell, MacNeill & Strauchler, P.A., where he concentrates his practice on medical malpractice and civil litigation.

Consider the following hypothetical scenario: In August 1992, a certain Dr. Rezzi, M.D., was a second-year pediatric resident who was rotating through New Jersey's St. Francis Medical Center. On Aug. 1, Dr. Rezzi was on duty when 18-month-old Miley Siren was admitted directly to the pediatric floor. Miley, admitted at 7:00 p.m., had been sent via ambulance to St. Francis at the direction of her pediatrician. St. Francis did not have a Pediatric Intensive Care Unit (PICU). During the course of the evening, Dr. Rezzi was the only physician on duty on Miley's floor, and she monitored the baby's condition.

The next morning, after Dr. Rezzi's shift concluded, the baby's condition had deteriorated. Ultimately, the decision was made to transfer Miley to University Hospital, which is 10 miles from St. Francis and has a PICU. Miley remained at University Hospital for a few days, where she was stabilized and eventually sent home. Unfortunately, after discharge, Miley experienced gross motor deficits and developmental delays, including cognitive issues.'

Sixteen and a half years later, when Miley turned 18, a lawsuit was filed on her behalf. The suit centers on medical malpractice and names several defendant physicians, including Dr. Rezzi. The allegations against Dr. Rezzi are that she failed to appreciate Miley's declining position and failed to take appropriate steps, such as intubating her.'

What Is the Standard of Care?

At the time the suit was commenced, Dr. Rezzi was board-certified in pediatrics and was engaged in private practice. In fact, after completing her residency and fellowship, Dr. Rezzi never worked at a hospital, but focused on her pediatric practice in northern New Jersey. The only hospital she has been affiliated with is St. Francis, which never acquired a PICU.

If Dr. Rezzi had been a licensed, board-certified pediatrician at the time of the alleged malpractice, there would be no question as to the standard of care to which she should be held, and the qualifications of any proposed expert witnesses. However, since she was a second-year resident at the time of the actions in issue, the question arises: What is the standard of care to which Dr. Rezzi should be held? (Many readers may question whether the circumstances outlined above are in any way controlled by the New Jersey Supreme Court's recent decision in Nicholas v. Mynster , 213 N.J. 463 (2013) [holding that the Patients First Act requires that a plaintiffs' medical expert have the same specialty or subspecialty as defendant physicians]. However, Nicholas and The Patients First Act, N.J.S.A. ' 2A:53A-41, are inapplicable since the cause of action accrued before the statute was approved on June 7, 2004, and Dr. Rezzi was not board-certified at the time of the alleged malpractice.)

Case Law

Based on the decision in Clark v. Univ. Hosp.-UMDNJ , 390 N.J. Super. 108 (App. Div. 2006), the answer is straightforward, but it leads to more difficult inquiries. In Clark, the issue was whether residents should be held to a lesser standard of care because of their position as residents. In that case, the defendant, Dr. Raquel Forsythe, was in her fourth year of residency. She also had completed an additional year of research after completion of medical school. Acting as the chief resident, she referred to herself as a “doctor” and held herself out as “able to diagnose, treat, operate or prescribe for any human disease, pain, injury, deformity or physical condition.” Ultimately, the Appellate Division held that the standard of care for medical residents at hospitals, who were in training for their medical specialties, was that applicable to “general practitioners” of medicine.”

Preliminarily, the Appellate Division delineated a specific requirement that must be examined to determine if a physician can be deemed a “general practitioner.”

In support of its decision, the Appellate Division cited with approval a Michigan case, Bahr v. Harper-Grace Hosps. , 198 Mich. App. 31, rev'd in part on other grounds, 448 Mich. 135 (1995). There, the court found that: 1) The applicable standard of care for general practitioners is that of the local community or similar communities; but 2) The standard of care for a specialist is a nationwide standard. And interns and residents are not specialists.'

This issue of local or similar communities versus nationwide is not addressed below, but, suffice to say, clever counsel could come up with arguments supporting either side.'

Another case of interest is Liguori v. Elmann , 191 N.J. 527 (2007), in which the New Jersey Supreme Court was asked to determine whether the trial court improperly charged the jury with respect to the standard of care applicable to the defendant. The defendant was a cardiac surgery assistant/fellow who had previously completed a two-year surgical residency program and worked as a house surgeon. The trial court instructed the jury that the surgeon defendant was to be held to the same standards as a “general practitioner.” Ultimately, the Liguori court held that the trial court's charge to the jury did not constitute reversible error. The court explained that the New Jersey Supreme Court noted in Howard v. Univ. of Med. & Dentistry of N.J. , 172 N.J. 537 (2002), that “board certification and eligibility for board certification are considered to be indicators of a doctor's status as a specialist.”

Applying Case Law to the Claim Against Dr. Rezzi

Under the reasoning of Ligouri and Clark, at the time of the alleged malpractice, Dr. Rezzi was not a specialist ' and the proper standard that applies to residents like her is that of a “general practitioner.”'

These holdings next lead to another inquiry: Who is qualified to offer opinions as to what deviation from the standard of care for a general practitioner would be? Put another way, who is an appropriate expert to offer opinions against Dr. Rezzi? As most attorneys know, practically every field has a Board Certification, and all expert witnesses have a specialty; for example, Family Care, Pediatrics, Cardiology, OB/GYN, etc.'

To support Miley's claims that Dr. Rezzi deviated from accepted standards of care, her attorney retained the services of a board-certified pediatric critical care physician, i.e., an intensivist. A review of this expert's report evinces that the standard of care she applied to Dr. Rezzi's conduct is that of an intensivist. In fact, at the expert's deposition, she was unaware that Dr. Rezzi was a second-year resident in 1992. The expert was also unaware that Dr. Rezzi never practiced as an intensivist.'

In defending Dr. Rezzi's actions, a board-certified pediatrician was retained. Similar to Dr. Rezzi, her expert is not an intensivist and never worked at a hospital that housed a PICU.'

Given these facts, the issue arises as to whether Miley's expert is suitably qualified ' or, more pointedly, whether the intensivist is overly qualified? Another issue is whether Dr. Rezzi is prejudiced insofar as the care she provided (as a resident) is being examined and critiqued by an intensivist? Further, is Dr. Rezzi prejudiced, since an argument can be made that the intensivist has more (possibly unnecessary) qualifications than her expert? Based on the above, should Dr. Rezzi file a Motion to Bar and, if so, would she be successful? Similar to other discovery motions, a trial court has inherent discretionary power to bar an expert witness and, depending on the judge, county, case and issues, a Motion to Bar may be granted.”

Motion to Bar

In support of a motion to bar, Dr. Rezzi could argue that Dr. Pedigree is attempting to hold Dr. Rezzi to the standard of care applicable to an intensivist, as opposed to a general practitioner. A general practitioner would be engaged in any and all types of medical care or treatment permitted by a license to practice medicine. While a general practitioner must hold a medical license, the scope of his or her practice runs the whole gamut of medical science ' clearly not a specialized pediatric intensivist.'

An argument could be made that Dr. Rezzi is prejudiced, since Miley is improperly attempting to alter the standard by which Dr. Rezzi's conduct is examined. The case of State v. Van Dyke , 361 N.J. Super. 403 (App. Div. 2003) is instructive; it explicitly disapproved of an attempt to introduce testimony that would “allow the jury to measure defendant's conduct by a standard other than the norm governing the general population.”'

If a court were not persuaded by the above arguments, Dr. Rezzi could always assert that the introduction of an expert who possesses unnecessary qualifications would be unduly prejudicial and would mislead a jury in violation of New Jersey Rules of Evidence 403. Further, given the excessive experience and qualifications of this expert, permitting her to testify might lead to a jury affording disproportionate weight to the testimony. New Jersey Courts have explained that expert testimony is not to be given greater weight than other evidence and should not be afforded greater weight than it otherwise deserves in light of experience and common sense. See In re Yaccarino, 117 N.J. 175, 196 (1989).

Conclusion

At the end of the day, even if Dr. Rezzi's Motion to Bar were successful, the likely result would be that Miley would be afforded additional time to retain an expert who is “suitably qualified.” Discovery would then be further extended. But if the possiblity of prejudice to the defense is real, it might be worth the delay and added expense to make the attempt to block the testimony of the overqualified expert.

Robert E. Spitzer, a member of this newsletter's Board of Editors, is an attorney with Post, Polak, Goodsell, MacNeill & Strauchler, P.A., where he concentrates his practice on medical malpractice and civil litigation.