Arkansas Supreme Court Voids Another Provision

The Arkansas Supreme Court issued an opinion, in the case of Broussard v. St. Edward Mercy Health System, that restricts whomever may testify as an expert witness in medical malpractice cases.

The Court states that expert testimony submitted by the plaintiffs must be “provided only by a medical care provider of the same specialty as the defendant.”

Simply put, if a cardiovascular surgeon is the defendant in a medical malpractice case, the expert witness called upon by the plaintiff to testify, must, at a minimum, be a cardiovascular surgeon, in good standing, who can prove that the defendant failed to act in accordance with the standard of care required by other cardiovascular surgeons.

Arkansas’ constitution says that the “Supreme Court shall prescribe the rules of pleading, practice, and procedure for all courts.” Regarding the provision dictating the qualifications expert witnesses must possess, the Supreme Court said, “The authority to decide who may testify and under what condition is a procedural matter solely within the province of the courts.” As a result, the court voided the provision.

This whole debate stems from a medical malpractice case involving Teresa Broussard v. St. Edward Mercy Health System. Broussard was burned on her neck and chest while undergoing surgery in 2006 to remove her parathyroid glands. She was prescribed pain meds, steroids and sent home, only to return to the Emergency Room two days later with severe burns. She was then admitted to the hospital with hypocalcemia, hypokalemia and renal failure. Broussard was told she had second-degree chemical burns, which “should improve.” Instead, they significantly worsened, turning her skin black with necrosis, requiring skin graft surgery.

In 2007, Broussard sued the hospital, the surgeon, nephrologist who treated her subsequent, but unrelated renal failure, as well as the nurses and technicians present in the operating room. She hired a board certified, family medicine and forensics physician as her expert witness.

The court initially granted the defendant’s summary judgment because Broussard’s medical expert witness was not of the same specialty as the defendants. Broussard appealed, but the circuit court upheld the trial court’s ruling, stating that the witness requirement is substantive and therefore, constitutional. Broussard’s attorney argued that insofar as the tort reform act required a doctor to have the status of practicing in the same specialty as the defendant, it violated Amendment 80 to the Arkansas Constitution.

The court ruled that sections of the law establishing standards for medical witness testimony were an unconstitutional infringement on the court’s authority to decide a witness’ qualifications. The court also stated that the legislature violated the separation of doctrine powers by specifying who could be considered an expert in medical malpractice cases.

It is still unknown how Mrs. Broussard sustained second-degree chemical burns during her surgery. At some point, something went wrong. Broussard had several visits, following surgery, with both her surgeon, as well as the nephrologist, who were aware of her burns. Even if their specialties were not in burn care, they should have referred her to a physician or burn care specialist immediately, who could have helped her. They did not. That is more important than whether or not her expert witness was in the same specialty as were the defendants.

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