Arkansas Supreme Court voids the “same specialty” requirement for malpractice experts for violating separation of powers

May 1, 2013

Broussard v. St. Edward Mercy Health System, 386 S.W.3d 385 (2012)

According to the Arkansas Supreme Court, any expert with requisite knowledge is eligible to testify in medical malpractice and other cases.

This important decision flew under my radar. Recently, Arizona’s Supreme Court upheld the constitutionality of a similar statute. See here.

I am not going to argue with Arkansas’s Chief Justice about the meaning of “separation of powers” under Arkansas’s Constitution, but his decision that “Procedural matters lie solely within the province of this court” and that “the General Assembly lacks authority to create procedural rules” (at p. 389) strikes me as too sweeping. Under medical malpractice law, procedural and substantive rules operate in tandem to promote the chosen state policy: for full explanation, see my article Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201 (2012). If so, the General Assembly should be able to adjust evidentiary and procedural rules towards accomplishing its substantive policy with respect to medical liability.

Importantly, expert witness requirements for medical malpractice cases are generally considered “substantive” rather than “procedural”: see, e.g., Creekmore v. Maryview Hosp., 662 F.3d 686, 690 (4th Cir. 2011); Legg v. Chopra, 286 F.3d 286, 291 (6th Cir. 2002).  Arkansas’ Supreme Court departed from that traditional view.