Expert Opinions Require Relevant Experience and Expertise

By: Sean T. Devenney

The result of a litigated case before a jury turns on many factors that do not raise legal questions or require mathematical or logical precision but instead focus on the emotional.  In personal injury cases, this makes trying cases very difficult where the risk of an adverse jury verdict is very difficult to assess.  There is no doubt that when the jury is asked to consider catastrophic injuries, it is often impossible for jurors to avoid at least some level of sympathy toward the plaintiff.  To counteract this effect, it is essential for a defendant in a personal injury case to hold the plaintiff to its burden of proof.  In order to proceed to a jury, the plaintiff must present evidence to support a finding that the defendant owed a duty to the plaintiff, that the defendant breached the duty, and that the plaintiff sustained damages as a result.  The failure to present evidence relating to these three elements will render the plaintiff’s claim subject to dismissal by the court (avoiding the jury).  From the defendant’s perspective, identifying and exploiting gaps in the plaintiff’s case by focusing on the plaintiff’s minimum burden to raise a question of fact on each of the elements of the plaintiff’s claim could result in eliminating the risk associated with a jury whose decision may be at least partially based in emotion.

A recent case before the Indiana Court of Appeals validates this perspective and highlights one important consideration in cases involving professional negligence—namely, the requirement that expert opinions evaluate and establish a breach of duty.  In the case of Overshiner v. Hendricks Regional Hospital, the plaintiffs alleged that the physicians and nurses who cared for their newborn failed to recognize and treat a serious blood condition that resulted in permanent injuries to the child, including blindness.  Overshiner certainly presents a sad, emotional case for a jury to consider.  However, as noted above, in order for a case to proceed to a jury, the plaintiff must present evidence of the breach of a duty.  In Overshiner this meant the plaintiffs had to present evidence of the doctors’ and nurses’ failure to meet the standard of care required of their professions in treating baby Overshiner.  In medical malpractice, as in other highly complex areas of law involving questions of professional services that require application of scientific principles and professional judgment beyond the experience of the average juror, the plaintiff almost always must present evidence from an expert willing to testify that the defendant failed to meet the standard of care required of the profession that he or she has been asked to evaluate. 

The Court in Overshiner made it clear that the testimony must come from an expert who has knowledge of the specific standard of care in the field that the jury is being asked to consider. In Overshiner, the issue the plaintiffs presented was related to the care and treatment an OBGYN rendered immediately following the birth of baby Overshiner.  In pursuing the case, the plaintiffs, however, relied on the testimony of a pediatric neuropathologist who testified that his work focused on why certain children died from brain maladies.  During testimony, the plaintiffs’ expert stated that although he was a doctor, he was neither a pediatrician nor an obstetrician.  Despite that, he testified he would have been more aggressive in attempting to treat baby Overshiner immediately following her birth and noted that an obstetrician’s standard of care is one of hypervigilance and diligence.  However, when asked whether he would have actually ever treated a patient like the plaintiff in his own physician practice, he testified that he would not because he was not the right specialty to treat baby Overshiner. The trial court ultimately determined that the plaintiffs’ expert did not establish sufficient knowledge of the standard of care applicable to treatment of a patient like baby Overshiner and determined that the plaintiffs failed to meet the burden of proof on breach of duty.  Accordingly, the trial court did not allow the case to be determined by the jury and instead entered judgment in favor of the defendants.

The Court of Appeals upheld the trial court’s ruling, noting that the expert did not testify that he understood the standard of care required of an obstetrician and/or a pediatrician after a child was born. 

This new case affirms the common- sense approach that requires the plaintiff’s expert to have the experience and training necessary to understand and assess the judgment calls the defendant whose actions are under review made within the context of the case.  In Overshiner, the mere fact the expert was a highly educated doctor did not qualify him to testify about all areas of medicine.  In short, given that the Overshiners’ expert was forced to acknowledge his lack of background in pediatrics and obstetrics, his testimony was not sufficient enough to raise an issue for the jury to consider as to the pediatric and obstetric care provided by the defendants.

This opinion certainly has application beyond medical malpractice.  It has application in all professional negligence cases inasmuch as it is now clear that it is necessary that the plaintiff’s proposed expert be qualified to speak about the standard of care required of the defendant whose actions are under consideration.  If the plaintiff’s designated expert’s area of expertise is not sufficiently related to the defendant’s profession, the plaintiff risks summary dismissal of his or her case.