Whose Opinions Can You Share to Establish the Standard of Care

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Phil Puccio

In any medical malpractice case in which a plaintiff alleges that your doctor-client failed to comply with applicable standards of care, one of defense counsel’s first responsibilities is—or should be—to identify an expert to defend your client’s treatment . At first glance, this task seems simple. After all, the simple goal is to identify a person who can vouch for taking care of your client. But states adhere to different standards, sometimes differing in who can provide the sponsorship.

Nebraska practitioners are likely familiar with their state’s own standard. In Nebraska, a proposed expert may certify another physician’s compliance (or non-compliance) with the applicable standard of care if the proposed expert “has personal knowledge and familiarity with usual practice among medical professionals in the same or similar locality in similar circumstances.” Bank v. Mickels, 302 Neb. 1009, 1018, 926 NW2d 97, 104-05 (2019). Therefore, Nebraska does not impose a requirement per se that the proposed expert practice in the same field or specialty as the physician whose conduct is at issue. See Hoffart v. Hodge, 9 Neb. App. 161, 171-72, 609 NW2d 397, 406 (2000) (rejecting the argument that only gynecologists can testify whether a defendant of a gynecology meets the standard of care); Vilcinskas v. Johnson, 252 Neb. 292, 296, 562 NW2d 57, 61 (1997) (noting “the testimony of qualified physicians cannot be precluded merely because they are not specialists in a particular school of medical practice.”). One only needs to have knowledge and familiarity with the applicable standard of care to be able to provide an expert opinion.

But Iowa maintains a stricter standard. Specifically, pursuant to Iowa Code §147.139:

. . . [T]The court will only allow a person nominated by the plaintiff to qualify as an expert and testify on the issue of due diligence or breach of due diligence if all of the following are established by the evidence:

  1. The person is licensed in the same or a substantially similar field as the defendant, is in good standing in each licensing state, and has not had a license revoked or suspended in any state in the five years prior to the alleged negligent act or omission.
  2. In the five years prior to the alleged negligent act or omission, the individual was actively engaged in the same or a substantially similar field as the Defendant or was a qualified lecturer at an accredited university in the same field as the Defendant.
  3. If the defendant is licensed in a specialty, the individual is certified in the same or a substantially similar specialty by a body recognized by the American Board of Medical Specialties, the American Osteopathic Association, or the Council on Podiatric Medical Education.

The statute also provides:

  • If the accused is a licensed physician or osteopathic physician under chapter 148, the person is a licensed physician or osteopathic physician in that state or in any other state.
  • If the Defendant is a licensed podiatrist under Chapter 149, the person is a physician, osteopathic physician, or licensed podiatrist in that or any other state.

Therefore, in Iowa, it is not sufficient for a proposed assessor to be familiar with the appropriate standard of care. Instead, the proposed expert must be licensed in the same field as the respondent, be certified by the same or substantially similar body as the respondent (if the respondent maintains such certification), and have recently engaged in active practice in the same or substantially similar field . Simply put, these strict standards pack a punch. See Ward v. United Healthcare, No. 20-1516, 2021 Iowa App. LEXIS 1039, *13-17 (Iowa Ct. App. Dec. 15, 2021) (Confirming the decision that the emergency physician was not qualified to testify regarding treatment by hospital administrators, nurses, radiologists, surgeons or hospital staff).

The differences between Nebraska and Iowa referee qualification standards offer a simple lesson: Although a physician may be authorized to practice on a particular subject in one state, the same physician may not be authorized to practice on the same subject in another state. In particular, when practicing in multiple states, attorneys should consider the possibility that states may maintain different standards of professional qualifications.

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Original Source: https://www.ldmlaw.com/2022/04/whose-opinions-can-you-share-to-establish-the-standard-of-care/
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