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.
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.
§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).