A Taste of Their Own Medicine: Examining the Admissibility of Experts' Prior Malpractice under the Federal Rules of Evidence

By Henson, Nell | Vanderbilt Law Review, April 2018 | Go to article overview

A Taste of Their Own Medicine: Examining the Admissibility of Experts' Prior Malpractice under the Federal Rules of Evidence


Henson, Nell, Vanderbilt Law Review


INTRODUCTION ............................................................................. 996

I. MEDICAL MALPRACTICE LAWS AND THE ROLE OF EXPERTS............................999

A. The Prominence of Custom ..................................... 999

B. The Necessity of Expert Witnesses ........................ 1001

II. DISCREPANCIES IN ADMITTING PRIOR MALPRACTICE EVIDENCE ....................................................................... 1004

A. Defendant Doctors: OffLimits .............................. 1005

B. Expert Witnesses: Fair Game ............................... 1008

1. Permitting Prior Malpractice .................... 1008

2. Prohibiting Prior Malpractice ................... 1010

III. IMPERMISSIBLE CHARACTER EVIDENCE ........................... 1012

A. Rule 404's Importance .......................................... 1012

B. Rule 608's Inapplicability .................................... 1016

C. Rule 403's Irrelevance .......................................... 1017

IV. EXPERT EXCEPTION OR RULE ENFORCEMENT................... 1018

A. Problems with Rule Enforcement: Excluding Useful Evidence ............................................................... 1018

B. Expert Exception: Cross-Examination with Prior Malpractice .......................................................... 1021

1. Sliding Scale: From Defendant Doctors to Nonparty Experts ...................................... 1021

2. Side Effects:

Curing Other Expert Problems ................. 1026

CONCLUSION .............................................................................. 1030

INTRODUCTION

Medical malpractice litigation is challenging for both plaintiffs and defendants. The intersection of legal issues with complex medical theories creates a dispute focused on expert witnesses, which leads to greater litigation expenses and cumbersome legal proceedings.1 As one scholar observed, "medical malpractice has proven to be . . . an unpleasant quagmire of unending skirmishes and full-scale engagements spread across a shifting battlefield."2 That analogy is fitting considering the stakes of a medical malpractice case-the injured patient's emotional, physical, and financial well-being may be contingent on a successful outcome, while the doctor may perceive even the threat of litigation as detrimental to his professional reputation.3

Expert witnesses are involved in almost every medical malpractice case. To recover any damages, the patient must establish the standard of care customarily exercised by other medical professionals and that her doctor's failure to provide that care caused her injuries.4 Essential to establishing those facts are the experts,5 whose testimonies and opinions aim to educate the jury and become determinative to their findings.6 Unfortunately, because both the plaintiff and defendant will likely call an expert to the stand, these experts can also confuse the jury by presenting contradictory testimonies, a problem known as the "battle of the experts."7 This resulting "battle" between the patient and doctor's experts on key elements, like the standard of care and causation, is problematic because after presenting to the jury conflicting testimonies on complex and unfamiliar subject matter, the nonexpert jury must then decide which expert is more credible or competent.8

Unable to bridge this knowledge gap, jurors ultimately rely on proxies, such as appearance and demeanor, to determine an expert's credibility.9 Because attorneys understand that the jury relies on such proxies, lawyers attempt to discredit opposing experts during cross-examination by inquiring into the experts' personal malpractice litigation in their capacity as a provider of medical care and other forms of professional misconduct to suggest that the expert is incompetent or not credible.10 This cross-examination technique poses important evidentiary questions regarding the admissibility of specific acts suggestive of an expert's competency. …

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