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Univ. of South Carolina School of Law

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Monday, June 23, 2008

Call The Doctor: Arizona Court Finds Medical Malpractice Expert Witness Statute Violates Separation Of Powers

In Seisinger v. Siebel, 2008 WL 2426811 (Ariz.App. Div. 1 2008), the Court of Appeals of Arizona found that a state statute requiring an expert witness in a medical malpractice action to meet certain criteria was in direct conflict with a rule of evidence and was thus unconstitutional.  It's a decision with which I agree, but I also think that Arizona might have been on the right track with the statute.

In Siebel, Laura Seisinger filed a complaint against Scott Siebel, M.D., alleging that he committed medical malpractice when he administered a spinal epidural to her.  Seisinger thereafter disclosed Dr. J. Antonio Aldrete, M.D., as an expert witness, but Dr. Siebel moved in limine to preclude Dr. Aldrete's testimony because he did not meet the requirements of Arizona Revised Statute Section 12-2604, governing the qualifications necessary for expert witnesses in medical malpractice actions. Seisinger did not dispute that Dr. Aldrete could not satisfy the requirements set forth in Section 12-2604; instead, she argued that the statute was an unconstitutional violation of the separation of powers doctrine because it is in direct conflict with Arizona Rule of Evidence 702 and asked the trial court to declare it unconstitutional. The trial court, however, granted Dr. Siebel's motion and ultimately dismissed Seisinger's complaint, prompting her appeal to the Court of Appeals of Arizona.

The Court of Appeals first noted that the Arizona Constitution confers on the Arizona Supreme Court the exclusive power to make rules relative to all procedural matters in any court.  The court thus noted that the judiciary will recognize legislatively enacted procedural rules only if they are "reasonable and workable" and do not conflict with, or tend to engulf, the Arizona Rules of Evidence promulgated by the Arizona Supreme Court.

It then proceed to compare Arizona Rule of Evidence 702 with Section 12-2604.  Under Rule 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise."

Under Section 12-2604(A):

     "A.  In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and the person meets the following criteria:

          1. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty or claimed specialty as the party against whom or on whose behalf the testimony is offered. If the party against whom or on whose behalf the testimony is offered is or claims to be a specialist who is board certified, the expert witness shall be a specialist who is board certified in that specialty or claimed specialty.

          2. During the year immediately preceding the occurrence giving rise to the lawsuit, devoted a majority of the person's professional time to either or both of the following:

               (a) The active clinical practice of the same health profession as the defendant and, if the defendant is or claims to be a specialist, in the same specialty or claimed specialty.

               (b) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant and, if the defendant is or claims to be a specialist, in an accredited health professional school or accredited residency or clinical research program in the same specialty or claimed specialty.

          3. If the defendant is a general practitioner, the witness has devoted a majority of the witness's professional time in the year preceding the occurrence giving rise to the lawsuit to either or both of the following:

               (a) Active clinical practice as a general practitioner.

               (b) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as the defendant."

The Court of Appeals found that while Rule 702 authorizes expert testimony on the basis of "knowledge, skill, experience, training, or education," Section 12-2604(A) precludes a witness who is otherwise qualified under Rule 702 from testifying in a medical malpractice case unless he or she meets the additional strict practicing and teaching requirements set forth in the statute.  The court thus rejected Dr. Siebel's argument that the statute merely supplemented the rule and instead found that it was in "direct conflict" with the rule and was unconstitutional as an infringement on the exclusive rule-making authority of the Arizona Supreme Court.  The court finally noted that while the legislature does have the power to enact statutes that establish substantive rights, Section 12-2604(A) was procedural and was thus not constitutional.

I agree with the court's ruling and find it to be consistent with similar cases across the country, including one cited by the court.  See McDougall v. Schanz, 597 N.W.2d 148, 153-54 (Mich. 1999).  But does the judiciary have something to learn from the legislature in these cases?  I've noted before that most courts are exceedingly liberal in finding witnesses to be qualified as experts under both Federal Rule of Evidence 702 and state counterparts.  That leaves the question of whether judges are properly acting as matadors in many of these cases.  With regard to the medical malpractice context, the question would be whether most or all physicians in a particular specialty such as podiatry, are qualified to render expert opinions on specialty-specific conditions, such as plantar fascitis ("flip-flop disease" or "dog's heel") or whether only those physicians with sufficient (continuing) qualifications can render such testimony.  I think that the Arizona legislature might have taken things too far with Section 12-2604(A), but I also think that Rule 702 is too toothless.  Maybe judiciaries and legislatures can meet somewhere in between.

-CM

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