Rule 702


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Paper published in the Campbell Law Review regarding Rule 702 9(j) requirements for qualified expert witnesses in North Carolina civil cases

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Rule 702

  1. 1. Deborah M. Welsh, MPA, NCCP August 13, 2008 Pursing medical negligence cases in North Carolina: Qualifying the Expert Witness In many states, an attorney who wishes to file a medical negligence action may be required by statute to certify to the court that the case has merit. Generally, the attorney must show that an appropriate medical expert has reviewed and verified the legitimacy of the claims being made against a health care professional or facility. In North Carolina, the attorney certifies in the complaint that a qualified expert has been consulted and agrees that the plaintiff’s claim has merit. The question that arises frequently in these cases, however, is whether or not that particular expert is “qualified” to testify to that opinion. Rule 702 North Carolina adopted Federal Rule of Evidence 702 which governs the qualifications and admissibility of experts. For actions filed on or after January 1, 1996, an expert witness must qualify under Rule 702(a) as follows: “(a) If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion.” When the claim is for medical negligence, parts (b) through (h) of the Rule require the expert to possess the following additional qualifications: 1. Must be a licensed health care provider in this State or another state; 2. If the alleged defendant is a specialist, the expert must specialize in the same or similar specialty and have prior experience treating similar patients; or must practice in a similar specialty, members of which render the same kind of care that is the subject of this action; and 3. During the year immediately preceding the date of the alleged negligence, the expert witness must have devoted a majority of his or her professional time to either (a) the active clinical practice of the same health profession as the defendant, or (b) the instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the defendant practiced. N.C. Rule of Civil Procedure 9(j) North Carolina’s Rule of Civil Procedure 9(j) is the mechanism by which Rule 702 is applied in a medical negligence action. It requires the plaintiff to certify in the complaint that the medical negligence alleged has been “reviewed by a person who is reasonably expected to qualify as an expert witness under Rule 702 of the Rules of Evidence and who is willing to testify that the medical care did not comply with the applicable standard of care.” (N.C. General Statute §1A-1.) Further, the statute states that a complaint alleging medical negligence “shall be dismissed unless it asserts that a health care provider meeting the qualifications described in Rule 702 is willing to testify that the medical care did not meet the applicable standard of care, or it asserts that facts exist establishing negligence under
  2. 2. Deborah M. Welsh, MPA, NCCP August 13, 2008 the doctrine of res ipsa loquitur.” N.C. Gen. Stat. § 1A-1, Rules of Civ. Pro., Rule 9(j) (Supp. 1997). While most plaintiffs’ attorneys who regularly bring medical negligence actions will already have competent experts in place before filing suit, problems sometimes arise once those experts are made available for deposition by the defense. Since the point of contention is whether or not plaintiff’s experts can testify that they are familiar with the standard of care, the deposition will likely be the first place defense counsel will seek to make sure that the expert is qualified to testify to that standard in North Carolina. Since the viability of the case depends upon the testimony of a qualified expert, Plaintiff’s expert(s) will most likely be challenged again at trial. Standard of Health Care North Carolina General Statute §90-21.12 (1990) is the section which sets out the standard of care to be used by the trier of fact in assessing whether or not medical negligence has occurred. The section states as follows: “In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.” Medical malpractice claimants must prove a breach of the standard of care by expert testimony, unless the negligence is obvious to a layman. Lowery v. Newton, 52 N.C. App. 234, 278 S.E.2d 566, cert. denied, 304 N.C. 195, 291 S.E.2d 148) (1981); Beaver v. Hancock, 72 N.C. App. 306, 324 S.E.2d 294 (1985). According to the statute, the standard of care to which expert testimony and other evidence must refer is the standard of practice in the same or similar community. There is no question that the burden of establishing the standard of care and the breach of that standard by the defendant belongs to the plaintiff. There appears to be a lack of agreement, however, as to what the standard of care should be in the venue where the negligence took place and the suitability of plaintiff’s expert to testify regarding that standard. Historically, the standard of care rule was known as the locality rule. The locality rule existed before medical training was standardized and served to bridge the gap between university-educated medical treaters and those who had been otherwise trained in local areas. It was argued that the compentence of a rural physician who practiced in an area devoid of high-tech hospitals and medical equipment could not be fairly compared with that of a highly educated physician practicing in a modern, fully-equipped medical facility. However, those inequities of skill and education are less likely to be found today, with the majority of physicians taking national examinations and
  3. 3. Deborah M. Welsh, MPA, NCCP August 13, 2008 participating in national residency programs in nationally accredited hospitals. Further, many argue that there are few communities without the benefit of access to adequate medical facilities and care. Despite the evolvement of national education and experience requirements for medical providers, some continue to argue in North Carolina that the general, or national, standard of care should not be the standard used by experts when reviewing cases involving allegations of medical negligence. They argue that practice standards are not adequately defined by the scientific community. Others argue that medicine is a science- based discipline and that contemporary standards of practice are approved, published and accepted by the medical profession at large. In fact, many states have abolished the locality rule, arguing that there is no longer a place for a rule that attempts to justify substandard medical care based upon some local custom. In North Carolina, however, there remains the debate that the locality rule should remain in force as long as it can be argued that there are still problems with rural communities having access to adequate care. However, having access to care and the competence of a particular medical professional are not the same problems. For example, a rural physician can be nationally trained, but be practicing in a community without the same medical facilities or equipment available found in an urban setting. Using the logic of the locality rule, it would not be fair to expect the rural physician to perform an emergency surgery, for example, without adequate facilities at his/her disposal. However, it would not be illogical to expect the physician to diagnose the need for the emergency surgery and to arrange for immediate transport of the patient to an appropriate facility. This is where the controversy lies. Today, the medical expert witness is expected to establish for the court a standard for medical care that is general to all medical providers and then give an opinion as to whether or not a particular defendant’s conduct violated this standard specifically as to the plaintiff’s care. Since most medical professionals are reluctant to testify regarding the conduct of their contemporaries, plaintiff’s counsel will often have to look outside of the community or state to find an expert. Again, in order to qualify as an expert in the medical negligence case, the provider must be able to testify that they are familiar with the standard of care in the locality where the medical negligence took place. Therefore, an expert from Stanford University Hospital, for example, would testify that he/she is from Stanford, that he/she is familiar with the standard of care at Stanford University Hospital, that he/she is familiar with the standard of care in Washington, North Carolina, and that those standards are the same. If there is a question regarding a national standard of care, the expert must be able to testify that he/she is familiar with that national standard, familiar with the standard in Washington, North Carolina, and then testify that the standards are the same. Plaintiff’s counsel and the expert can then bolster this opinion with peer-reviewed medical literature, policies and procedures from the medical facility itself, opinions from other practitioners in the community, and standards put forth by the treater’s own profession (such as the Clinical Policies set forth by the American College of Emergency Physicians).
  4. 4. Deborah M. Welsh, MPA, NCCP August 13, 2008 Qualification of potential medical expert witnesses continues to be contentious in North Carolina. Currently there is at least one case at the appellate level in which the parties are asking for clarification of the elements needed to qualify experts in medical negligence matters. Since the life of the case is dependent upon plaintiff having obtained an opinion by a qualified expert, the question is an important one.