Medical Expert Always Needed For Standard of Care
posted on November 7th, 2009 in Standard of Care, Ph.D's by clintSome lawyers still believe that an Ph.D is qualified to testify about the standard of care for a medical doctor in a medical malpractice action. This view is anachronistic and wrong. You should never go forward in a medical malpractice case against a physician without a medical expert. I will show you why. In Cusatis v. Casey, 2009 WL 3460451 (Tenn.Ct.App.), a deceased patient filed a medical malpractice action against the defendant, Dr. Casey, who was a board-certified physician in private practice specializing in family medicine. This was going to be a tough case anyway just because of the defendant’s name [Ben Casey anyone?]Dr. Casey had specialized in family medicine in the Oak Ridge community of Anderson County, Tennessee, since 1986. The patient died of an overdose of Methadone prescribed by Dr. Casey.
In the complaint, the Estate claimed Dr. Casey committed malpractice by misdiagnosing patient’s condition and prescribing several pain killers without proper safeguards in place to prevent addiction or overdose; prescribing an improper dosage of medication; and failing to advise the patient of the risk associated with the medications. Dr. Casey filed his first motion for summary judgment with his own affidavit. In the affidavit, Dr. Casey stated that he complied with the appropriate standard of medical care in Anderson County in his treatment of the patient. Dr. Casey admitted to prescribing Methadone, but he did not direct the patient to take an overdose. In response to Dr. Casey’s affidavit, the Estate filed the affidavit of John Lipman, Ph.D. (“Dr.Lipman”), a neuropharmacologist, who was board-certified by the American Board of Forensic Examiners as well as other Boards. In Dr. Lipman’s affidavit, he averred that he was familiar with the recognized standard of appropriate medical care for medical practitioners in Anderson County, Tennessee as a result of his training and experience. Dr. Lipman opined, to a reasonable degree of pharmacological certainty, that Dr. Casey did not comply with the appropriate standard of acceptable medical care in his pharmacological treatment of Mr. Cusatis in 2003. The Estate offered no expert testimony from a medical doctor as to the standard of care, or that Dr. Casey deviated from the standard of care. Instead, the Estate stressed that Dr. Casey’s affidavit failed to actually set forth what the standard of care is in Anderson County for such a medical provider.
The trial court granted summary judgment in favor of Dr. Casey. In its memorandum opinion, the trial court cited Smith v. Graves, 672 S.W.2d 787 (Tenn.Ct.App.1984) and held that Dr. Casey was competent to testify in his own case, and that his affidavit was sufficient to support a motion for summary judgment. The trial court found that the Estate’s expert, Dr. Lipman, was not qualified to testify in a medical malpractice case because Dr. Lipman is not “a medical doctor” and “is not competent to rebut or raise an issue by law in terms of this summary judgment that is before me.” The Estate filed a timely notice of appeal. The Court of Appeals affirmed the trial court’s finding that a Ph.D is not sufficient to comment on the standard of care applicable to t a medical doctor. I hope that after Cusatis there is no lingering doubt about the need for a medical expert to make a prima facie claim against a physician. A medical expert is always needed for standard of care.