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What Is the Minimum Necessary for an Expert to Show Familiarity with the Standard of Care?; Scholl v. Majd

In this case, the plaintiff’s attorney encountered a nightmare for any proponent of an expert witness—the witness started saying unnecessary things that could call his qualifications as an expert into question. The situation was so bad that the trial court entered a directed verdict for the defense. But was that correct?

Scholl filed a lawsuit accusing Majd of medical malpractice related to a lumbar fusion surgery and a subsequent revision procedure he performed on her. After Scholl and Majd both testified at trial, Scholl call her third witness, Sexton, to testify as an expert witness. While on the stand he said that Majd’s treatment fell “below the mythical standard of care of doing spine surgery.” When pressed on what he meant by “mythical,” Sexton said that the reasonable doctor standard was “not any specific thing you can put your finger on” and that doctors had “to figure [it] out by the seat of your pants.” To Sexton, “[t]here is no such thing as a standard of care except what the individual doctor thinks it is.” Sexton then went on to describe the manner in which he felt Majd’s performance fell below the standard of care.

After Scholl rested her case, Majd asked for judgment on the evidence, arguing that Sexton was unfamiliar with the standard of care. The trial court granted that motion, and Scholl appealed.
On appeal, the Court framed the issue around the question of whether Sexton had misstated the standard of cared left the jury to speculate as to the applicable standard of care, and it answered that question in the negative.

Dr. Sexton quoted a doctor from the medical review panel’s deposition testimony that the standard of care is “what a reasonably skilled doctor with reasonably skilled training would do in a given situation.” While this was not a word-for-word recitation of the legal definition for standard of care, it demonstrates Dr. Sexton was at least somewhat familiar with the legal bar for what constitutes medical malpractice.

Thus, Sexton’s testimony about what a “prudent spine surgeon” would have done was sufficient for Scholl to meet her burden of proof.

While Dr. Sexton did describe the standard of care as “mythical” and something “each doctor decides . . . for himself or herself,” he clarified in his testimony that he was referring to the fact that the standard of care is not clearly defined in an authoritative source. The standard of care is not “mythical,” but it leaves room for interpretation as we expect experts in a medical malpractice action to disagree about what the applicable standard of care requires in any given situation. Dr. Sexton’s comments were imprecise, but they do not show a lack of familiarity with the applicable standard of care.

Thus, the case was sent back to the trial court for a new trial.

Lesson:
1. In order to testify about the standard of care, an expert must express some familiarity with that standard of care.
2. The fact that an expert derides the concept of a standard of care does not mean that the expert’s testimony is inadmissible.