What does it take to provide expert testimony in med-mal cases?

In Nicholas v. Mynster, 213 N.J. 463(2013), the plaintiff became ill after being exposed to carbon monoxide fumes from a gas-powered saw. As a result of the exposure and his subsequent medical treatment, the plaintiff suffered brain damage, among other injuries and sued the defendants, his treating physicians in the emergency room, Drs. Mynster and Sehgal, for breaching their duty of care. Drs. Mynster and Sehgal were board certified in emergency medicine and family medicine.

In September 2010, defendants moved to bar plaintiff’s use of Dr. Weaver as an expert witness under N.J.S.A. 2A:53A-41, contending he failed to meet the requirements to provide testimony on the appropriate standard of care concerning the defendants’ treatment due to his lack of certification and experience in emergency medicine and family medicine. Plaintiff’s expert, Dr. Weaver, was dual certified in internal and preventive medicine, unlike Drs. Mynster and Sehgal. Because the testimony was necessary to establish that there was a breach in the standard of care, defendants moved for summary judgment.

The trial court denied defendant’s motion for summary judgment, citing Khan v. Singh, 200 N.J. 82 (2009), which permitted testimony from an expert in a different discipline, as long as both doctors practiced the same type of medicine. The trial court explained if the expert testimony from a doctor practiced similar medicine that was reasonably related to patient’s treatment, then the testimony should be admitted and be allowed to potentially impact the credibility of the expert testimony as opposed to block admissibility altogether. The trial court concluded, “Dr. Weaver is a specialist in the course of treatment that was provided by Drs. Mynster and Sehgal.” Defendants’ motion for reconsideration was denied. The New Jersey Appellate Division denied defendant’s motion for leave to appeal.

Defendants argued Khan, supra, was inapplicable and instead, the Patient’s First Act, N.J.S.A. 2A:53A-41 (The Act), because Khan predated the Act. Because the defendants were board certified in the fields of emergency medicine and family medicine, they alleged plaintiff’s expert, who is board certified in internal and preventive medicine and did not practice in their specialty areas, lacked the equivalent credentials mandated by the Act. Plaintiffs argued instead that medical professionals may provide testimony in overlapping fields as long as the testifying expert doctors have “sufficient knowledge of professional standards applicable to the situation under investigation.”

The New Jersey Supreme Court granted defendant’s motion for leave to appeal in order to consider whether an expert, board certified in one discipline, could properly testify as to the standard of care in another discipline, which he routinely practices in. The State’s highest court explained the Act sets up qualifications for expert witnesses in medical malpractice actions and states that an expert must have the “same type of practice and possess the same credentials . . . as the defendant health care provider, unless waived by the court.” N.J.S.A. 2A:53A-41. This applies to causes of action arising after July 7, 2004 (importantly, after the cause of action accrued in this matter). The Supreme Court held the Act was the controlling law, not Khan. Furthermore, the Court instructed, “When a physician is a specialist and the basis of the malpractice action ‘involves’ the physician’s specialty, the challenging expert must practice in the same specialty.” Furthermore, the challenging expert must be credentialed by a hospital to treat the condition in contention or be board certified in the same specialty in the year preceding “the occurrence that is the basis for the claim or action.” Defendants, Mynster and Sehgal practiced in specialties involved in the subject matter, and are board certified in emergency medicine and family medicine respectively. Therefore, only an “equivalently credentialed specialist would be qualified to testify against another specialist.” A physician specializing in internal and preventive medicine cannot provide expert testimony against physicians specializing in emergency or family medicine regardless if they all can treat carbon monoxide poisoning. The waiver exception provided in the statute was not applicable for this case because no good faith efforts were made by the plaintiff to find a qualified expert physician under the First Act.