profession

Court upholds same-specialty expert witness requirement

In addition to ruling that the Arizona law is constitutional, justices defined “specialist” and “board certified” and outlined how courts should apply the law.

By Tanya Albert Henry — Posted April 3, 2013

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Arizona physicians say a state high court ruling will help prevent frivolous medical liability lawsuits from moving forward.

The Supreme Court of Arizona in March ruled that a law requiring experts in such cases to share the same specialty as the treating physician does not violate state or federal laws that guarantee people the right to go to court.

“Although plaintiffs might face greater difficulties in finding a qualified expert because of a smaller expert pool, [the statute] does not bar medical malpractice lawsuits or preclude plaintiffs from recovery in such actions,” the court said in Baker v. University Physicians Healthcare (link).

The law keeps in place a key portion of the tort reform that the Arizona Medical Assn. helped lead the charge on at the height of a medical liability crisis in the 2000s, said Chic Older, the association’s executive vice president. The medical society filed a friend-of-the-court brief in the case.

In the past decade, the law has been one of the parts of tort reform that Older credits with a 30% drop in the frequency of lawsuits and an increased number of liability carriers willing to insure physicians in the state. The law, and the decision to uphold it, is not pro-plaintiff or pro-defense, he said. “It makes the system more reasonable, more balanced.”

A Tucson attorney for the plaintiff who challenged the Arizona statute declined to comment for this article. Opponents of the law argued, among other things, that the requirement was unconstitutional because it took away patients’ access to the courts. The Arizona Assn. for Justice/Arizona Trial Lawyers Assn. was among the organizations that filed a friend-of-the-court brief.

Court clarifies law

The law requires a testifying expert to spend a majority of his or her professional time practicing or teaching in the specialty in the year before the incident on which they are testifying occurred.

Noting that the law does not define the term specialist or board certified, justices wrote that they construed “specialty” to refer “to a limited area of medicine in which a physician is or may become board certified.” In addition to the American Board of Medical Specialties’ 24 member boards, justices wrote that subspecialties also are considered “specialties” under the law. The law would not do what it was designed to do if subspecialties are not taken into account when deciding who is qualified to testify, the court said.

“By excluding recognized subspecialties from the definition of ‘specialty,’ the court of appeals’ construction of [the law] is both too broad and too narrow. It would, for example, allow a pediatrician certified by the American Board of Pediatrics but who does not practice in hematology to testify about the care provided by a pediatric hematologist,” justices wrote. “This is contrary to the statute’s goal of ensuring that experts have qualifications and experience comparable to the physician whose conduct is at issue.”

The opinion said when courts apply the statute in cases where the treating physician is or claims to be a specialist, judges must first determine if the care or treatment at issue involved the specialty. If so, testifying experts must share that same specialty.

If the treating physician is board certified in that specialty, the testifying experts must share that same board certification, justices said.

“This is a solid decision that keeps junk science out of the courts,” Older said.

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