Court of Appeals Announces Criteria for Admissibility of Expert Testimony in Medical Malpractice Case

Evidence: Medical Malpractice—Expert Testimony

Pipher v. Loo, 551 Ariz. Adv. Rep. 27 (App. Div. I, March 10, 2009)(Justice Irvine)

MEDICAL EXPERT MAY RELY UPON RELIABLE AND TRUSTWORTHY HEARSAY WHERE OPINION ALSO BASED UPON ADMISSIBLE EVIDENCE AND CAUSATION EXPERT DOESN'T VIOLATE “ONE EXPERT PER ISSUE” RULE WHERE TESTIFYING THERE WAS A BREACH OF STANDARD OF CARE WAS NECESSARY PREDICATE TO CAUSATION OPINION

Plaintiff appeals from a defense verdict in his medical malpractice action where it was claimed the defendant was negligent in failing to remove the anesthetic needle when plaintiff experienced an “electric shock” reaction to the injection resulting in injury to his lingual nerve.

Plaintiff first argued on appeal that the trial court erred in allowing the defendant's expert to testify regarding the cause of plaintiff's injury where the opinion was based upon the testifying doctor's own laboratory research, clinical experience, interviews with other dentists and patients.

The plaintiff claimed the opinion was inadmissible because it was based upon hearsay. In overruling this objection the court of appeals found that although rule 802 of the Rules of Evidence renders hearsay testimony generally inadmissible. However, Rule 703 allows an expert to testify concerning such evidence for the limited purpose of disclosing the basis for his or her opinions.

Here, where the expert also relied upon laboratory testing and clinical experience which was not hearsay and there was no evidence his interviews were untrustworthy or unreliable, the testimony was properly admitted.

Plaintiff's second argument however was sustained by the Court of Appeals and a new trial was ordered. Plaintiff argued that the trial court erred in excluding his causation expert from testifying that it was a breach of the standard of care by the defendant which caused plaintiff's lingual nerve injury on the basis that the plaintiff had already offered testimony from a standard of care expert and this testimony was in violation of the “one expert per issue” rule (Ariz. R. Civ. P. 26(b)(4)(D). To the contrary, the Court of Appeals held that the testimony by the causation expert that there was a breach of the standard of care was a necessary foundation and predicate to his causation opinion and therefore admissible, particularly where this testimony was the only testimony plaintiff had to establish causation.