Defining the proper credentials for an expert witness
Since they grasped the reins of Michigan jurisprudence, Michigan's 4 activist conservatives have been whittling down who can testify as an expert in malpractice. The consequences of this effort were on display in a recent case.
Under the impetus of legislative restrictions that define who can testify, rather than using the previous approach of examining the experts' credentials on a case-by-case basis, the Court has attempted to limit expert testimony to persons within a strict specializing definition. For example, a cardiac surgeon who works with cardiac nurses every day cannot testify regarding the standard of care for these nurses, no matter how well he may understand it. Usually the witness' background must essentially match the negligent actor's background, although in certain cases it must instead match the "most relevant specialty" in which the medical error occurred. This can lead to a relatively arbitrary and vague standard with which victims must comply---before they have a chance to fully understand their claim or responsibility for an error.
In Hubbard v. DMC, a 55 year-old man died with an undiagnosed perforated bowel, while he was being treated for other issues. Before the case could be filed or discovery commenced, the Plaintiffs filed their obligatory Notice of Intent; they then supported their Complaint with Affidavits of Merit from a gastroenterologist and an expert in internal medicine.
When the case approached trial, the Hospital sought to block the Plaintiff from talking about the failure of a third-year resident to properly interpret and act on certain studies which would fall into the category of emergency medicine. The resident was a physician but not yet qualitifed as a specialist. The Court held that because he was acting in the field of emergency medicine, only an emergency medicine specialist could criticise him. Thus, the highly qualified specialists in internal medicine and gastroenterology could not describe the standard of care--even if it was the same for all three specialties--and a general practitioner like the resident could not testify, either, because he didn't practice the "most relevant specialty". The Plaintiffs in Hubbard apparently anticipated wrongly that gastroenterology was, in fact, the "most relevant specialty" and therefore their experts' testimony was not allowed.
There is good reason for limiting expert testimony to highly qualified individuals, however, the process should not degenerate into a guessing game where a meritorious case is decided not by the quality of care given, but rather by an arbitrary exclusion of qualified, properly-credentialed witnesses.