Chapter 4.B.4: Qualification and Examination of Medical Experts

Supplemental Bibliography

Notes: Qualification of Experts

For additional discussion of “hired guns” and adversarial bias in expert testimony, Daniel C. Murrie & Marcus T. Boccaccini, Adversarial Allegiance Among Expert Witnesses, 11 Ann. Rev. L. & Soc. Sci. 37 (2015); Jennifer A. Turner, Going After the "Hired Guns': Is Improper Expert Witness Testimony Unprofessional Conduct or the Negligent Practice of Medicine?, 33 Pepp. L. Rev. 275 (2006); Fred L. Cohen, The Expert Medical Witness in Legal Perspective, 25 J. Leg. Med. 185 (2004); Stephen D. Easton, Ammunition for the Shoot-Out with the Hired Gun's Hired Gun: A Proposal for Full Expert Witness Disclosure, 32 Ariz. St. L.J. 465, 468 (2000); Gary N. McAbee, Improper Expert Medical Testimony: Existing and Proposed Mechanisms of Oversight, 19 J. Leg. Med. 257 (1998); Jody Menon, Adversarial Medical and Scientific Testimony and Lay Jurors, 21 Am. J. L. & Med. 281 (1995).

Notes: Examination of Experts; Introduction of Treatises and Guidelines

Note 3. Pharmaceutical Package Inserts

For more on the admissibility and relevance of package inserts, see James M. Beck, Off-Label Use in the Twenty-First Century: Most Myths & Misconceptions Mitigated, 54 UIC John Marshall L. Rev. 1 (2021).

Note 4. Clinical Practice Guidelines

In 2024, the American Law Institute finalized a Restatement of Medical Malpractice, as part of its Third Restatement of Torts. Its Section 6(b) addresses defensive use of practice guidelines, stating that authoritative guidelines can be sufficient to support a finding that a defendant complied with the standard of care, but guidelines are not definitive.

For various analyses and critiques of existing law regarding practice guidelines, see Allen Kachalia et al, Greatest Impact of Safe Harbor Rule May be to Improve Patient Safety, Not Reduce Liability Claims Paid by Physicians, 33(1) Health Affairs 59 (2014); Maxwell J. Mehlman, Medical Practice Guidelines as Malpractice Safe Harbors: Illusion or Deceit, 40 J. L. Med. & Ethics 286 (2012); Ronen Avraham, Clinical Practice Guidelines: The Warped Incentive in the U.S. Healthcare System, 37 Am. J. L. & Med. 7 (2011); Michelle Mello, Of Swords and Shields: The Use of Clinical Practice Guidelines in Medical Malpractice Litigation, 149 U. Pa. L. Rev. 645 (2000).

For more on the use of clinical practice guidelines in litigation, see Allen Kachalia et al, Greatest Impact of Safe Harbor Rule May be to Improve Patient Safety, Not Reduce Liability Claims Paid by Physicians, 33(1) Health Affairs 59 (2014); K. Van Tassel, Harmonizing the Accountable Care Act with the Three Main National Systems for Healthcare Quality Improvement, 78 Brook. L. Rev. 883 (2013); Ronen Avraham, Overlooked and Underused: Clinical Practice Guidelines and Malpractice Liability for Independent Physicians, 20 Conn. Ins. L.J. 273 (2013); Maxwell J. Mehlman, Medical Practice Guidelines as Malpractice Safe Harbors: Illusion or Deceit, 40 J. L. Med. & Ethics 286 (2012); Maxwell Mehlman, Professional Power and the Standard of Care in Medicine, 44 Ariz. St. L. J. 1165 (2012); Ronen Avraham, Clinical Practice Guidelines: The Warped Incentive in the U.S. Healthcare System, 37 Am. J. L. & Med. 7 (2011); Jodi Finder, The Future of Practice Guidelines: Should They Constitute Conclusive Evidence of the Standard of Care?, 10 Health Matrix 67 (2000); Michelle Mello, Of Swords and Shields: The Use of Clinical Practice Guidelines in Medical Malpractice Litigation, 149 U. Pa. L. Rev. 645 (2000); Arnold J. Rosoff, The Role of Clinical Practice Guidelines in Health Care Reform, 5 Health Matrix 369 (1995); Mark A. Hall, The Defensive Effect of Medical Practice Policies in Malpractice Litigation, 54 Law & Contemp. Probs. 119 (Spring 1991); R. E. Leahy, Rational Health Policy and the Legal Standard of Care: A Call for Judicial Deference to Medical Practice Guidelines, 77 Cal. L. Rev. 1483 (1989).

The softbound edition also includes a set of notes on Discovery and Confidentiality.

On peer review confidentiality and immunity (note 2), see Gregory Nowakowski et al., Health Care Quality Improvement Act: Peer Review, Procedure, Process, and Privacy, 33 Cooley L. Rev. 1 (2016); Lisa M. Nijm, Pitfalls of Peer Review, 24 J. Leg. Med. 541 (December 2003); Gail Friend et al., Identifying and Protecting the Peer Review and Medical Committee Privilege, 49 Baylor L. Rev. 607 (1997); Comment, 11 Mich. St. U. J. Med. & L. 177 (2007); Note, 17 Health Matrix 319 (2007); Note, 4 Ind. Health L. Rev. 151 (2007).

Challenging the view that liability exposure deters error reporting or quality improvement, see Stephan Landsman, Reflections on Juryphobia and Medical Malpractice Reform, 57 DePaul L. Rev. 221 (2008); David A. Hyman & Charles M. Silver, The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 Cornell L. Rev. 893 (2005);.

For commentary and analysis of ex parte contacts (note 3), see Beverly Cohen, Reconciling the HIPAA Privacy Rule with State Laws Regulating Ex Parte Interviews of Plaintiffs’ Treating Physicians, 43 Hous. L. Rev. 1091 (2006); Comment, 34 Cap. U. L. Rev. 775 (2006); Annot., 50 A.L.R.4th 714 (1986).

Supplemental Substantive Materials

The problem below, which can be used to used to discuss practice guidelines in more detail, is included in the softbound volume, but not the full 10th edition.

Problem: Practice Guidelines

Fatema Ahmed is a 62-year-old female with a history of severe diabetes and high blood pressure. She lives in a small town in a rural county of a state that follows the national standard of care for specialists. Following surgery on her left knee performed under general anesthesia at the local public hospital, she was suddenly unable to speak normally. This is consistent with brain damage caused by decreased oxygen to the brain, among other possible causes. Fatema brings a medical malpractice action against her anesthesiologist.

Several national organizations have issued guidelines for monitoring ventilation (breathing) during surgery. Two years before Fatema’s operation, the anesthesiology department at the hospital studied all these guidelines and adopted the following as its view of the best compromise among all their various nuances:

Every patient receiving general anesthesia shall have the adequacy of ventilation evaluated regularly and frequently. Quantitative monitoring of the CO2 content and the volume of expired gas is encouraged, but not required. . . . These guidelines are not intended to displace the physician’s discretion to conform treatment to the particular clinical circumstances of the individual patient.

Fatema’s anesthesiologist admits that he did not perform quantitative measures of CO2 and volume of exhaled air because he considers visual observation of breathing to be sufficient in all cases. Fatema’s expert testifies that she could have suffered decreased oxygen because her breathing slowed or paused for a minute or two. In his opinion, quantitative measures are advisable for a patient in Jane’s condition. The hospital had recently purchased new equipment that can make these measures continuously and much less obtrusively than was the case before.

The defense lawyer tries to introduce this hospital guideline as evidence of the standard of care. What objections are likely, and what response would you make? If the guidelines were admitted, what instruction should the judge give to the jury, assuming this jurisdiction follows a national standard of care?