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Appellate Case Reviews Qualifications for Expert Testimony in Massachusetts Medical Malpractice Suits

Medical malpractice actions follow the same outline as other personal injury suits. If someone fails to uphold a duty under law and an injury occurs as a result, the at-fault party is liable to the injured party for the damages he or she sustained. In medical malpractice actions, this duty is called the “standard of care,” which is the typical practices and procedures performed by professionals in the same area of medicine in the same geographic area. rollator-908029-m.jpgIn malpractice actions, the standard of care must be testified to by a qualified expert who practices in the same area of medicine.

In an unpublished decision, Distasio vs. Comeau (13-P-1572), the Appeals Court reviewed the dismissal of the injured party’s complaint following the trial judge’s ruling to exclude one of her expert witnesses. The injured party was a child who suffered from dislocated hips that likely dated back to her birth. The girl’s parents had asked the pediatrician about their daughter’s crawl and walk, but the pediatrician assured them that her crawl was normal, even though it was different from her older brother’s gait. No X-rays were ordered by the pediatrician, nor was a diagnosis provided.

The parents then sought another opinion, conferring with two doctors. One prescribed physical therapy, which began soon after the initial consultation. The child began to see a physical therapist, who was also a chiropractor, three times a week. The child was not X-rayed until her third visit with one of the initial consulting doctors, which was when she was diagnosed with hip dysplasia. The parents filed suit on her behalf against the pediatrician and the pediatric practice for failing to diagnose their daughter’s condition. They later amended the complaint to include the doctors from the initial second-opinion consultation, the physical therapist, and the practice that provided the physical therapy.

After the cases were consolidated, the physical therapist and his practice filed a motion, arguing that the injured girl’s medical expert witness was not a qualified physical therapist for the purpose of testifying in the medical malpractice action. The expert’s curriculum vitae showed he was a licensed chiropractor in Pennsylvania and licensed in “adjunctive procedures,” which was presented to be physical therapy. The defendants argued that these did not equate to a license in physical therapy, which would be necessary to testify in a medical malpractice action under Massachusetts law.

The Appeals Court looked to Massachusetts case law, which iterates the requirements described above. An expert must have the same credentials in the same area of medicine in order to provide competent testimony regarding the standard of care. The defendants pointed out that Pennsylvania makes an explicit distinction between a license in “adjunctive practices” and physical therapy. Based on the lack of credentials, the appellate court upheld the trial court’s decision to exclude the expert’s testimony and direct a verdict in favor of the physical therapist and physical therapy practice.

Distasio shows the different challenges an injured party faces when filing suit against multiple parties. The Massachusetts personal injury attorneys at Karsner & Meehan have the experience you need to fully litigate a medical malpractice action and provide the expert witnesses that you need for your case. For a free consultation, call today at 508.822.6600.

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