Experts In Birth Injury Case Not Qualified To Offer Opinions: The Nebraska Supreme Court stated in its opinion filed on May 5, 2023 in a birth injury medical malpractice case, “the burden is on the proponent of standard-of-care testimony to demonstrate that the expert is familiar with the customary practice among physicians in the defendant’s community or a community that is similar in terms of available resources, facilities, personnel, practices, and other medically relevant factors. If a party cannot demonstrate his or her expert’s familiarity with such standard of care, then the expert’s testimony is properly excluded.”
Expert testimony offered to establish the standard of care in a medical malpractice case is admissible only if its proponent can demonstrate the expert’s familiarity with the relevant standard of care in the defendant’s community or a similar community. Section 44-2810 defines the general standard of care in medical malpractice cases as “the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in his or in similar localities.” It also provides that to determine what constitutes such ordinary and reasonable care, skill, and diligence in a particular case, the test is “that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances.”
In the case it was deciding, the parents brought a claim for medical malpractice against two doctors involved in the birth and emergency care of their infant son. At trial, the district court excluded expert testimony concerning the standard of care, ruling that the parents failed to establish the expert’s familiarity with the standard of care under the locality rule. The district court also excluded expert testimony concerning causation because of a lack of pretrial disclosure and lack of foundation. At the close of the plaintiffs’ evidence, the district court directed a verdict in favor of the defendant doctors, finding that the plaintiffs failed to present sufficient evidence for a jury to find in their favor on each element of their claims. The plaintiffs appealed, arguing that the district court abused its discretion by excluding the expert testimony on the standard of care and causation and that a reasonable jury could have found in their favor on both malpractice claims.
The Nebraska Supreme Court held: “under § 44-2810, a party who seeks to present expert testimony on the standard of care in a medical malpractice case must demonstrate familiarity with the standard of care in the defendant’s locality or a similar locality. Additionally, we hold that the district court did not abuse its discretion in determining the Carsons failed to demonstrate Nau’s familiarity with the standard of care in Grand Island or a similar locality. We also hold that the district court did not abuse its discretion when it excluded Demarest’s testimony.”
“We decline the Carsons’ request to interpret § 44-2810 to allow an expert unfamiliar with the defendant’s community or similar community to testify to a national standard of care. We cannot eliminate the locality rule explicitly required by the statute. Although we have recognized that “medical standards of care and skill are becoming national, rather than local or regional,” “[w]e cannot depart from the customary standard of care on policy grounds, even if is subject to criticism, because the standard of care is defined by statute and public policy is declared by the Legislature.”
Additionally, we decline to impose a burden-shifting framework on § 44-2810. The Legislature did not put a burden-shifting framework into the statute, and we cannot read into a statute something that is not there.”
Nonetheless, “Our holding does not mean that expert testimony concerning a national standard of care is always inadmissible. Expert testimony establishing a national standard of care is admissible if the expert can establish that the national standard of care does not differ in the defendant’s community or a similar community.”
The Nebraska Supreme Court held in the case it was deciding, “Given the lack of testimony establishing the available
resources, personnel, and facilities in both Grand Island and Cedar Rapids, the district court did not abuse its discretion by determining that the Carsons failed to show that Grand Island and Cedar Rapids are similar.”
Carson v. Steinke, 314 Neb. 140.
If you or your baby suffered a birth injury during labor and delivery in Nebraska or in another U.S. state, you should promptly find a birth injury lawyer in Nebraska or in your state who may investigate your birth injury claim for you and represent you and your child in a birth injury case, if appropriate.
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