Michael Sharp, Speaker at 22nd Annual Advanced Medical Torts Conference

On March 12, 2015, Michael Sharp addressed  the 22nd Annual Advanced Medical Torts Conference sponsored by the State Bar of Texas. The conference is attended by many medical malpractice attorneys and is primarily directed towards  advanced practitioners dealing with health care claims. As many may know, professional Texas Medical Board complaints many times go hand in hand with ongoing health care litigation claims. Mr. Sharp’s presentation centered on the wide gap and distinctions in qualifications necessary for expert witnesses in administrative regulatory agency standard of care proceedings versus medical liability suits.

Specifically, in medical liability lawsuits filed against physicians in Texas, Chapter 74 (§74.401) of the Civil Practice and Remedies Code lists  specific qualifications which an expert must have in order to opine as to whether the physician defendant “departed from accepted standards of medical care.” (Other health care providers have a similar protective rule in CPRC Sec. 74.402.)  According to that statute, the expert physician or other professional witness against a health care provider must be practicing currently or at the time the claim arose, have specific knowledge regarding the diagnosis, care or treatment of the illness, injury or condition involved in the claim and be qualified by training or experience to offer the opinion. Case law is extensive as to interpretation of this statute in medical liability claims.

By contrast, administrative law judges who decide Medical Board and related health provider  cases  at the State Office of Administrative Hearings (SOAH), have much broader discretion in accepting witnesses as experts. The primary test  at SOAH is one of admissibility under the Texas Rules of Evidence, Rule 702. Under TRE Rule 702, the test is whether or not the expert testimony will “assist the trier of fact to understand the evidence or to determine a fact in issue”. To attempt to disqualify a potential physician witness, one must also show that the witness is not qualified to offer the testimony by virtue of lack of knowledge, skill, experience, training, or education and, further, any opinion proffered by the witness will not assist the trier of fact. Though not insurmountable, this is a very difficult challenge, and many judges might simply overrule the challenge, allow the witness to testify, and consider the objection as going to the weight of the testimony.

However, there are avenues to challenge a Medical Board proffered expert, despite this broader discretion of the administrative law judges. For instance, in an underlying investigation conducted by the Texas Medical Board, by the Board’s own Rules the Board must use physicians of the same or similar specialty. If two or more reviewers of the same or similar specialty agree on a standard of care violation, that threshold opinion is relied upon by Board staff for the scheduling of an in-person Informal Settlement Conference (“ISC”). However, in a subsequent SOAH proceeding (contested case), the Board could theoretically use physician witnesses  of a different specialty with lesser qualifications.

Mr. Sharp discussed a recent SOAH case where he had successfully obtained a ruling from the Administrative Law Judge disqualifying the Board’s physician expert, resulting in the Board reluctantly dismissing the case at SOAH.

Mr. Sharp expressed concerns regarding the power of an agency under such minimum  expert standards to compromise the quality of evidence upon which a decision will be based. Mr. Sharp ended his speech arguing on an ethical basis that there is no public policy reason why testifying physician experts for the Texas Medical Board (or any administrative agency) at SOAH should be less qualified than physician experts in a civil suit under CPRC.

For example, in a civil medical liability suit, financial judgments are involved between private interests. In a Board complaint against a physician, the high stakes are the best interests of the public, balanced against the potential catastrophic injury to the Respondent’s livelihood and reputation,  as well as adverse collateral effects from managed care, hospital entities and other third parties.

In the face of these implications, practitioners are well served to ensure that Board experts be required to meet more stringent qualifications, given the enormity of the damaging effects of an adverse decision. The expert witnesses in all professional licensure cases should be thoroughly deposed and, if they do not meet the agency’s own licensure standards or the requirements of CPRC Section 74.401 and 74.402, they should be  vigorously challenged as to their ability to offer any opinion of value under TRE 702.