An important question in medical malpractice cases is whether the plaintiff’s standard of care expert must be board certified in the same specialty as the defendant, or must at least practice in the same area of specialization without board certification. Many states have enacted controlling statutes on this issue. If the answer to the “same specialty” question is yes, the plaintiff frequently needs two experts – one to opine on the standard of care, and one to address causation. In a 2018 case, the South Carolina Supreme Court carefully construed the relevant statute and held that, under the circumstances, the plaintiff’s causation expert could testify on the standard of care, even though his specialty was not the same as the defendants’. Eades v. Palmetto Cardiovascular and Thoracic et al., Opinion No. 27770, 2/28/2018, https://scholar.google.com/scholar_case?case=17113283517481082961&hl=en&as_sdt=2006&as_vis=1.
The plaintiff sued his primary care physician and an emergency room physician for failure to timely diagnose a blockage and aneurysm of his left iliac artery. Under South Carolina law, as in many states, a medical malpractice plaintiff must file an affidavit of merit with the complaint, signed by a qualified expert. The plaintiff’s expert in Eades was a vascular surgeon. The trial court dismissed the complaint, agreeing with the defendants that a vascular surgeon could not opine on the negligence of a primary care physician and an emergency medicine specialist. The supreme court reversed, holding that “the statute permits the production of an affidavit from an expert who does not practice in the same area of medicine as the allegedly negligent doctor.”
The court began by setting forth the principles of statutory interpretation that would guide its analysis: “Statutes in derogation of the common law are to be strictly construed. Under this rule, a statute restricting the common law will not be extended beyond the clear intent of the legislature. Statutes limiting a claimant’s right to bring suit are subject to this rule. [In a case involving a different subsection of the same statute], this Court…found the statute restricted a plaintiff’s common law right to bring a malpractice claim, requiring the Court to strictly construe the statute’s requirements.” (Citations and internal quotation marks omitted.)
The defendants relied on subsection (A)(2) of the relevant statute, which provides that an expert is qualified if he or she is “board certified…in the area of practice or specialty about which the opinion on the standard of care is offered; or has actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given….” The defendants argued that the plaintiff’s expert’s affidavit “was defective because it did not indicate that he practiced in the same area of medicine as [the defendants].” Thus, as the supreme court noted, “the crux of the [defendants’] argument hinges on the interpretation of ‘area of practice or specialty’” in subsection (A)(2).
After remarking – significantly – that it “disagree[d] with the [defendants’] proposed application of subsection (A)(2),” the South Carolina Supreme Court stated that “we need not reach that issue, because we find [the expert’s] affidavit comports with subsection (A)(3).” That subsection provides that a licensed physician not covered by subsection (A)(2) is qualified if he or she “has scientific, technical, or other specialized knowledge which may assist the trier of fact in understanding the evidence and determining a fact or issue in the case by reason of the individual’s study, experience, or both. However, [the affidavit] must contain an explanation of the expert’s credentials and why the expert is qualified to conduct the review….”
The affidavit of the plaintiff’s expert stated, in pertinent part: “I am familiar with the applicable medical standards for the evaluation and treatment of patients under the same or similar circumstances as Johnny Eades, including particularly, but not restricted to, occlusion of the left iliac artery, aneurysm of the same artery, and related issues. I am aware of the degree of care and skill ordinarily exercised by members of the medical profession under the same or similar circumstances as it relates to the care and treatment of patients such as Johnny Eades in July and August of 2009. This knowledge is based upon my education, training, and experience.”
To put it bluntly, a vascular surgeon knows what a primary care or emergency room physician should do when a patient presents with clear symptoms of an arterial occlusion or aneurysm. Thus, the supreme court concluded, the plaintiff’s expert “demonstrated he possesses the specialized knowledge and training that may assist the trier of fact in this case, and he explained why his credentials qualify him to identify a negligent act or omission committed by [the defendants]. Accordingly, even if [the plaintiff’s expert] did not satisfy the requirements of subsection (A)(2) because he did not list the same practice areas as [the defendants], his affidavit comports with the more general requirements of subsection (A)(3).”
Eades v. Palmetto Cardiovascular stands as a useful precedent for any plaintiff’s attorney in a state with a statute defining the qualifications of medical malpractice experts that is similar to South Carolina’s.
