Pending Legislation on Malpractice Evidence

How do you feel about a federal statute regulating expert evidence, in both state and federal courts, on the duty of care in malpractice cases, reading as follows:

(1) REQUIREMENT - No individual shall be qualified to testify as an expert witness concerning issues of negligence in any health care lawsuit against a defendant unless such individual--

(A) except as required under paragraph (2), is a health care professional who--

(i) is appropriately credentialed or licensed in 1 or more States to deliver health care services; and

(ii) typically treats the diagnosis or condition or provides the type of treatment under review; and

(B) can demonstrate by competent evidence that, as a result of training, education, knowledge, and experience in the evaluation, diagnosis, and treatment of the disease or injury which is the subject matter of the lawsuit against the defendant, the individual was substantially familiar with applicable standards of care and practice as they relate to the act or omission which is the subject of the lawsuit on the date of the incident.

(2) PHYSICIAN REVIEW - In a health care lawsuit, if the claim of the plaintiff involved treatment that is recommended or provided by a physician (allopathic or osteopathic), an individual shall not be qualified to be an expert witness under this subsection with respect to issues of negligence concerning such treatment unless such individual is a physician.

(3) SPECIALTIES AND SUBSPECIALTIES - With respect to a lawsuit described in paragraph (1), a court shall not permit an expert in one medical specialty or subspecialty to testify against a defendant in another medical specialty or subspecialty unless, in addition to a showing of substantial familiarity in accordance with paragraph (1)(B), there is a showing that the standards of care and practice in the two specialty or subspecialty fields are similar.

(4) LIMITATION - The limitations in this subsection shall not apply to expert witnesses testifying as to the degree or permanency of medical or physical impairment.

This or substantially similar language appears in at least three bills that have been introduced in the Senate during the current 108th Congress: S. 11 (the "Patients First Act of 2003"); S. 607 (the "Help Efficient, Accessible, Low-Cost Timely Healthcare [HEALTH] Act of 2003"); and S. 2061 (the "Healthy Mothers and Healthy Babies Access to Care Act of 2003"). As a practical matter, the language, which the bills' sponsors certainly seem persistent about proposing, would seemingly limit the pool of experts on the standard of care in medical malpractice cases to physicians currently practicing in the same subspecialty -- a requirement more stringent than existing standards under Daubert and the law of many states. See, e.g., Gaydar v. Sociedad Instituto Gineco-Quirurgico y Planificacion Familiar, 345 F.3d 15 (1st Cir. 2003).

In the context of substantive "tort reform," conservative oblivion to principles of federalism is nothing new. But attempts to regulate state court evidentiary rules represent a relatively new gambit. We wonder if this will become a trend.