April 25, 2013
Nicholas v. Mynster, — A.3d —, 2013 WL 1760434 (N.J. 2013)
We already had similar updates from other states: the plaintiff’s expert must practice medicine in the same specialty as the defendant doctor (through board certification or credentialing by a hospital).
The plaintiffs — Mr. Nicholas and his wife — sued two hospital doctors, board certified in emergency medicine and family medicine, for improperly treating Mr. Nicholas’s carbon monoxide poisoning. The plaintiffs’ expert was a board-certified physician in internal and preventive medicine. This misalignment disqualified the plaintiffs’ expert and doomed the suit.
New Jersey Supreme Court decided that the plaintiffs’ expert is not authorized to testify to the standard of care applicable to the treatment of carbon monoxide poisoning by the defendants. Emergency medicine, family medicine, internal medicine, and preventive medicine – explained the Court – are all distinct specialty areas. Doctors practicing in those areas may treat carbon monoxide poisoning, but their standards of care may be different.
I estimate that this trend will soon become nationwide.
The current bright-line-rule approach to medical negligence allows the medical profession to figure out its own rules and “safe harbors” for doctors. This approach regulates patients’ litigation behavior: courts do not even try to induce improvements in medical care. Consequently, a doctor becomes exposed to a potentially successful malpractice suit only when she does something professionally unheard of – you may call it “gross negligence.” For that reason, I oppose low damage caps. They are unnecessary, unjust, and economically anomalous. Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1255-56 (2012)..