In the trial of medical malpractice cases, plaintiffs must present expert testimony to support key elements of the case. These elements are whether the defendant health care provider breached the standard of medical care and whether such breach was a cause of the plaintiff's injury.
Experts are expensive, and it is often difficult to find experts willing to testify against another health care provider. We use our best efforts to find well-qualified experts and do not bring cases unless the expert support is strong.
Over the years, the Arizona Legislature and the courts have established stringent rules regarding expert witnesses, including limiting the number of experts to one retained expert per side and per topic and imposing specific requirements on their qualifications.
The stated policy reason for these rules is to prevent “frivolous” lawsuits. The truth is more complicated, and sometimes these rules create unfair obstacles to those seeking redress in the courts.
The latest twist on this topic came from our Supreme Court last summer in McDaniel v. Payson Healthcare Mgmt, 512 P.3d 998 (2022). In short, McDaniel allowed for more experts, but in a way that favored the defense.
The defense lawyers in McDaniel used doctors involved in the plaintiff's treatment as additional experts on standard of care. Defense counsel asked 4 treating doctors if the defendant doctor met the standard of care, and each supported the defendant.
Thus, after all was said and done, the defense presented 6 experts—the defendant himself, the retained expert and the 4 additional “treating” experts—to the plaintiff's single retained expert. Not surprisingly, the defendant won the trial.
Disappointingly, the Arizona Supreme Court ruled that this practice was generally allowable. However, the court ruled that since the defense had not properly disclosed the witness' testimony, plaintiff was entitled to a new trial.
The McDaniel ruling adds to the challenge of medical negligence cases because now, the defense may use multiple expert witnesses under the guise of treating doctors. While one may argue that plaintiff can also use treating doctors in the same way, it is rare for any treating doctor to testify against a colleague.
Despite the obstacles existing under Arizona law, we continue to pursue medical malpractice cases vigorously and with the most qualified expert witnesses possible.
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