At one time, before medical specialization was common, courts routinely permitted any medical school graduate to testify against any other physician in medical malpractice litigation. In fact, courts responded to plaintiffs' difficulty in obtaining expert opinions (e.g., because local experts would not testify against another member of the expert community) by allowing plaintiffs to obtain expert opinions from the defendant physicians themselves. See, McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20 (1964).

Today, it is no longer difficult to locate experts in the field of specialization appropriate to any medical malpractice case. Therefore, defense counsel might consider attempting to disqualify a plaintiff's expert who is called on to testify against another physician in a different specialty. Now, attorneys can find experts in the appropriate medical specialty who are outside the community, outside the county, even outside the state, since specialists are held to a national standard. Indeed, the law has progressed such that the standard of care within a medical specialty has become a national standard. Gone and almost forgotten is the local community standard.

Courts have always recognized that a physician undertaking a task in a specialized area of medicine must exercise a degree of skill and knowledge that generally is pos­sessed only by physicians who practice in that specialty. ( See, e.g., Toth v. Community Hospital at Glen Cove,22 N.Y.2d 255 (1968).) More recently, courts have actively acknowledged the existence of specialization within the medical profession ( see, eg., Procanik v. Cillo, 206 N.J. Super. 270, 502 A.2d 94 (1985), acknowledging the existence of specialization in the "complicated field of medical malpractice."). Not only have courts been recognizing the existence of medical specialties, but some have acknowledged the incompetency of non‑specialists to testify as to the standard of care in a particular specialty. See, e.g., Pearce v. Linde, 113 Cal. App. 2d 627, 248 P.2d. 506 (1952); Huffman v. Lindquist, 37 Cal. 2d 465, 234 P.2d (1951).

Society has progressed to the everyday and familiar acceptance of specialties and subspecialties within the medical community. The case law of decades ago ‑ permitting any type of doctor to testify about the standard of care applicable to any other type of doctor ‑ may work injustice when specialists and subspecialists find the level of care they deliver being judged by those outside of their areas of skill and expertise. Indeed, recent case law suggests that the use of an expert in the same medical specialty is increasingly preferred.

In New York, for example, courts have found persuasive the fact that testimony was offered by specialists in the "appropriate" specialty at issue. See Matter of Heins v. Commis­sioner of Education of the State of New York,111 A.D. 2d 535 (3d Dept. 1985); Scott v. Brooklyn Hospital,93 A.D. 2d 577 (2d Dept. 1983). In Calvin v. Schlossynan,74 A.D. 2d 265, 427 N.Y.S.2d 632, 635 (1st Dept. 1980), the court acknowledged that "[p]eer review...is favored, but not required." Although not the general rule, some courts have held that one physician cannot testify against another physician in another field or specialty. For example, in Weinstein v. Daman,132 A.D. 547 (2d Dept. 1987), an allergist was precluded from testifying concerning the sufficiency of treatment rendered to a patient by a general practitioner, and, in Hammer v. Hochberg,128 A.D. 2d 834 (2d Dept. 1987), the court ruled that a dental malpractice claim requires an expert competent to attest to the meritorious nature of the claim, specifically a dental expert. See also, Warner v. Kudler,101 A.D. 2d 886 (2d Dept. 1984).

Slower to Make Distinction

Some courts have been slower to acknowledge the increased specialization in the medical profession. For example, in Jones v. O'Young,607 N.E. 2d 224 (1992), the Illinois Supreme Court allowed an infectious‑disease specialist (also board certified in internal medicine) to criticize the defendant surgeons' care and treatment of an infectious disease. One of the defendants was a plastic surgeon as well as a general surgeon, while another was an orthopedic surgeon. The defendants had treated a fracture in the plaintiff's leg following an automobile accident.

The Illinois Supreme Court said that "whether the expert is qualified to testify is not dependent upon whether he is a member of the same specialty or sub‑specialty as the defendant but whether the allegations of negligence concern matters within his knowledge and observations." The court asserted that effective cross‑examination would be the appropriate vehicle for a defendant who complains that an expert from a different specialty should not be allowed to criticize his care.

In Gonnan v. Chen,596 N.E.2d 1350 (1992), an Illinois appellate court allowed a plastic surgeon to testify as an expert witness against an orthopedic surgeons' post‑operative care.

Are decisions such as these behind the times?

"A physician should use his best judgment and whatever superior knowledge, skill and intelligence he has." Toth v. Community Hospital at Glen Cove,22 N.Y.2d 255,262 (1968). This principle stems from the reasonable‑man rule. From this principle, the New York Court of Appeals, the state's highest court, concluded in Toththat "a specialist may be liable where a general practitioner may not."(Emphasis added.) In other words, the court acknowledged that, in cases involving a specialist as a defendant, the specialist‑defendant may be held to a different, or perhaps higher, standard.

That same court has also said that "[t]he law generally permits the medical profession to establish its own standard." Topel v. Long Island Jewish Medical Center,55 N.Y.2d 682, 690 (1981). As long as a physician stays within the bounds of the accepted me dical practice in his specialty,he is immune from liability for pure errors of judgment or for mere lack of success.

However, "[W]here there is a departure from that standard, when the physician goes beyond its limits, the medical judgment so exercised carries no immunity against the claim that it constituted negligence (citation omitted)," the court said in Topel,adding, AMoreover, when the judgment exercised is outside the permissible range, 'however good his intentions may have been,' a physician will not thereby be rendered free from hability for this 'departure from approved methods in general use' [citation omitted]." See also, Schrempf v. State,66 N.Y.2d 289, 296 (1985). The particular "standard" by which a physician is judged, therefore, may be all-important.

As both the Topeland Schrempfcourts, as well as many other courts, have noted, the "line between medical judgment and deviation from good and accepted medical practice is not easy to draw." Given that "the line is not easy to draw" and that specialists are held to different and higher standards than general practitioners, and given that each specialty in the medical profession establishes its own "standards," it seems unfair and unreasonable, and perhaps impossible, for a physician in one specialty to judge or determine whether a physician in another specialty departed from what is good and accepted medical practice in that other specialty.

Many states have long recognized the particular variety of skills within the medical profession and the value of practical experience within these specialties. For example, the Utah Supreme Court said in Burton v. Youngblood,711 P.2d 245, 248 (1985), "It is true that, ordinarily,a practitioner of one school of medicine is not competent to testify as an expert in a malpractice action against a practitioner of another school (Annot.,85 A.L.R.2d 1022, 1023 (1962)). In light of the wide variation between schools in both precepts and practices, as a general matter this rule makes good sense. It has been judicially adopted in a majority of states, Id.,and we follow it here." (Emphasis added.) The Burtoncourt actually distinguished between subspecialities, and refused to permit a "specialized" plastic surgeon who performed blepharoplastic surgery to testify against a general plastic surgeon.

The Supreme Judicial Court of Maine upheld a trial court's exclusion of the opinion of a surgeon specializing in otolaryngology who was prepared to testify against a physician specializing in internal medicine and neurology. The court found that the surgeon specializing in otolaryngology was "a physician specializing in a 'wholly unrelated' branch of medicine." Caron v. Pratt,336 A.2d 856,859 (Me. 1975).

The Supreme Court of Minnesota, in Swanson v. Chatterton,160 N.W.2d 662, 667 (Minn. 1968), excluded testimony in a medical malpractice action brought by a plaintiff who was treated by the defendant orthopedic surgeon for a supracondylar arm fracture and ended up with paralysis. The plaintiff offered an expert witness who was chief of a hospital medical staff and a specialist in internal medicine.

In excluding the expert's testimony, the court noted that the expert "...has never in any way participated in the reduction of a supracondylar fracture ... but for minor surgery and some work in skeletal tuberculosis he had no substantial experience or expertise in the direct care of orthopedic patients. His knowledge of this subject was mainly based upon the teaching he absorbed in medical school from which he was graduated fifteen years prior to the year to which his testimony would relate."

In Swanson,the court referred to "persuasive precedent from other jurisdictions" supporting this ruling. For example, it cited Pearce v. Linde,113 Cal. App. 2d 627, 248 P.2d 506 (1952), where the issue was whether a surgeon had used proper care and skill in performing a foot operation. The trial court excluded the proposed testimony of a physician who was a specialist in internal medicine but bad no experience in orthopedic surgery. The Pearcecourt noted of the proposed expert:

"He was a specialist in internal medicine. He had no experience in orthopedics or any other branch of surgery. Patients coming to him requiring treatment in orthopedic surgery were all referred by him to an expert in that branch of the practice. He testified that he had some knowledge of what was the proper professional treatment of such cases from what he had read or from what he had heard from experts in that line. Since the question involved was whether the defendants had used proper skill and care in performing the several operations on plaintiff's foot, the testimony of an expert in internal medicine would be no more persua­sive than that of a layman who had read and heard what was the proper professional practice."

Special Skills, Training

Whatever constitutes the reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession must come from the testimony of a physician qualified to speak as an expert and having what Wigmore has classified as:

"Occupational experience ‑ the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood." 2 Wigmore on Evidence 3d ed. Section 556, p. 635, cited in Pearce v. Linde, 113 Cal. App. 2d 629, 248 P.2d 507, citing Sinz v. Owens, 33 Cal. 2d 749, 753, 205 P.2d 3, 5.

The Supreme Court of Minnesota specifically elaborated that an expert "must have had basic education and professional training as a general foundation for his testimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted the defendant charged with malpractice that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment given is to be measured." Pearce v. Linde,supra, citing Sinz v. Owens,supra.

In Peterson v. Carter,182 F. Supp. 393 (W.D. Wis.), the court ruled that one doctor was not qualified to give expert testimony as to another doctor's negligence in the removal of plaintiffs parathyroid gland, stating that the expert's "only contact with thyroid surgery in Wisconsin is limited to his alleged observation of some of his former students, to whom he did not teach surgery."

In another Minnesota case, the state Supreme Court looked again to the practical knowledgeof what is customarily done by physicians under circumstances similar to those that confronted the defendant charged with malpractice. It viewed this as being of controlling importance in determining the expert's competency to testify as to the degree of care against which the treatment given is to be measured. A medical malpractice action arose from the administration of the drug penicillarnine to plaintiff. The plaintiffs expert was a pathologist, not a clinician, as was the defendant. The court noted that the expert "never prescribed Penicillamine or treated a patient who was on a regimen of the drug," and excluded his testimony. Feinhardt v. Colton,337 NW.2d 88, 93 (Minn. 1983).

The Texas Court of Appeals excluded an expert witness's testimony regarding whether the defendant's decision to perform bypass surgery, as opposed to treating the problem with medication, was negligence. The proposed expert witness "had not done surgery in years and never per­formed heart surgery. He had no past experience in treatment of coronary disease." Milkie v. Metni,658 SW.2d 678, 679 (Tex. App. 5 Dist. 1983).

A Florida appeals court did not permit a physician specializing in obstetrics and gynecology to testify in a malpractice action as to the standard of care applicable to an orthopedist. The court stated that the expert was a specialist in obstetrics and gynecology, and, therefore, not qualified to testify as to the standard of care required by an orthopedic specialist. Salinetro v. Nystrom,341 So. 2d 1059, 1061 (Fla. App., 3d Dist., 1977).

Consistent with the notion of practical "hands on" experience, the Court of Appeals of Michigan upheld four factors used by the trial court in finding that the plaintiff's expert lacked expertise in the area of obstetrics and gynecology even though the issue in the case was the treatment given by the defendant, an ob/gyn. The court pointed to "[t]he absence of evidence on the number or type of maternity cases [the expert] handled," the fact that [the expert] had not performed surgery since 1967 or delivered a baby since 1959," his "lack of research or study in the field of obstetrics and gynecology," and, finally, his "lack of Board Certifica­tion in obstetrics." [I]n light of these deficiencies in [the expert's] background and qualifications," the expert's testimony was properly deemed inadmissible, the court said. Gilmore v. O'Sullivan,307 NW.2d 695, 696‑697 (1981).

Many courts have long under­stood the fundamental fairness of a physician being judged by another physician who practices in the same specialty. In the medical profession as it exists today, of necessity, a physician can only be judged by another in the same specialty.