Medical-Legal

***This is for educational purposes only.  This does NOT constitute legal nor medical advice.  For legal advice, you need to consult an attorney.  
Me: Just to clarify, EM practitioners are considered generalists. As such, an expert witness in a theoretical case is required to be from a similar community and region. The purpose of the expert witness is to establish the standard of care. So in effect, the standard of care of EM is “defined” by what clinicians in the same community and region do and not what is done nationally nor in other parts of the country?
Attorney: Correct, EM physicians are considered generalists. An expert testifying against an EM physician would have to be one that had “ substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department.” Note, they wouldn’t necessarily have to be from the same community and region  but from a similar community and/or region. If the former were the rule, no physician in one community would be convinced to testify against a colleague.. So for example a Kern County ED med mal doc could testify against Yuba County doc in a med mal case so long as he met all other expert requirements. Hope that helps. 
Standard of care for Emergency Room physicians is that of a generalist not a specialist, see Cal. Health and Safety Code Sec 1799.110 below.
California Health and Safety Code
Section 1799.110

(a)

In any action for damages involving a claim of negligence against a physician and surgeon arising out of emergency medical services provided in a general acute care hospital emergency department, the trier of fact shall consider, together with all other relevant matters, the circumstances constituting the emergency, as defined herein, and the degree of care and skill ordinarily exercised by reputable members of the physician and surgeon’s profession in the same or similar locality, in like cases, and under similar emergency circumstances.

(b)

For the purposes of this section, “emergency medical services” and “emergency medical care” means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.

(c)

In any action for damages involving a claim of negligence against a physician and surgeon providing emergency medical coverage for a general acute care hospital emergency department, the court shall admit expert medical testimony only from physicians and surgeons who have had substantial professional experience within the last five years while assigned to provide emergency medical coverage in a general acute care hospital emergency department. For purposes of this section, “substantial professional experience” shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in general acute care hospital emergency departments in the same or similar localities where the alleged negligence occured.

§30.28            2.  Examples of When Expert Testimony Required

Expert opinion testimony is sometimes required to prove a case or a defense. See §30.27.

Medical malpractice. In medical malpractice cases, for example, the standard of care generally must be shown by expert testimony, unless the conduct at issue is within the common knowledge of a layperson. Avivi v Centro Medico Urgente Med. Ctr. (2008) 159 CA4th 463, 467. See Massey v Mercy Med. Ctr. Redding (2009) 180 CA4th 690, 692 (issue of nurse’s alleged negligence for patient’s fall posed question of common knowledge and did not require expert opinion testimony); Sarka v Regents of Univ. of Cal. (2006) 146 CA4th 261, 273 (application of statute prohibiting retaliation against physician who advocates medically appropriate patient care requires expert testimony on whether care advocated was “medically appropriate”); Curtis v Santa Clara Valley Med. Ctr. (2003) 110 CA4th 796, 800 (expert testimony required to establish standard of care in medicalmalpractice suit); Jambazian v Borden (1994) 25 CA4th 836 (summary judgment motion properly granted because plaintiff in malpractice case did not provide required expert testimony). The “common knowledge” exception is limited primarily to circumstances in which a plaintiff can invoke the doctrine of res ipsa loquitur. Curtis, 110 CA4th at 801. See Scott v Rayhrer (2010) 185 CA4th 1535, 1542.

In negligence cases in which damages are sought against a doctor providing “emergency medical coverage,” expert medical testimony is only permitted from a doctor with substantial professional experience within the previous 5 years (measured from the date of the alleged malpractice) as an emergency room doctor. Health & S C §1799.110(c). See Petrou v South Coast Emergency Group (2004) 119 CA4th 1090.

NOTE:  On the varying interpretations given to the term “emergency medical coverage,” see, e.g., Miranda v National Emergency Servs. (1995) 35 CA4th 894, 900 (term means treatment provided in emergency department of general acute care hospital by physician who is on duty during that emergency); James v St. Elizabeth Community Hosp. (1994) 30 CA4th 73, 79 (term applies whenever emergency room physician treats patient in emergency department of general acute care hospital); Zavala v Board of Trustees (1993) 16 CA4th 1755, 1762 (physician providing emergency medical coverage is one whose field of activity is provision of emergency medical services in hospital’s emergency department); Jutzi v County of Los Angeles (1987) 196 CA3d 637, 647 (terms “emergency medical coverage” and “emergency medical care” mean those medical services required for immediate diagnosis and treatment of medical conditions that, if not immediately diagnosed and treated, could lead to serious physical disability or death).

Causation. If the complexity of a causation issue is beyond common experience, expert testimony is required to establish causation. Garbell v Conejo Hardwoods, Inc. (2011) 193 CA4th 1563, 1569 (causation question demanded expert testimony to determine origin and cause of fire). See Hernandez v County of Los Angeles (2014) 226 CA4th 1599, 1614 (because defense experts could not show plaintiff’s marijuana use was substantial factor in causing death, jury could not speculate that there was causal link between marijuana use and death, citing Garbell v Conejo Hardwoods, Inc., supra.).





Interesting article I found: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3314772/ (Regarding standard of care applied to resident in training physicians)

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