Another who-can-be-an-expert-in-a-med-mal-case case.
Lo is an ophthalmologist who performed “laser facial skin treatment.” Sued for malpractice, he moved to disqualify Plaintiff’s standard-of-care expert, a plastic surgeon. The trial court denied the motion, reasoning that laser skin treatment is plastic surgery, not ophthalmology. Lo took this special action.
The Court of Appeals takes jurisdiction but affirms.
The statute (12-2604) requires an expert on the “appropriate standard of care” for a defendant’s “specialty or claimed specialty.” Lo admitted that plastic surgeons do the same procedure but wanted to debate alleged distinctions among “plastic surgery,” “cosmetic surgery,” and “oculoplastic surgery.” The court rejected that by relying on the boards’ official descriptions of the specialties but also, and mostly, on Lo’s web site, which holds him out as being a specialist in “cosmetic” and “plastic” surgery.
The court says the statute does not “require that a testifying expert match each specialty of a party with multiple specialties.” That is a bit extraneous to the holding (which doesn’t stop the court from then going on about it at length), and whether its true should depend on the facts of the case, but it figures to be the most-quoted sentence from this opinion.
Though we see this sort of argument all the time nowadays, this particular one does seem hyper-technical. The statute was intended to stop general practitioners from talking about surgery, chiropractors from talking about M.D.s, and similar practices from what are quickly becoming the old days. The statute wouldn’t have been necessary had our courts been more reasonable and prudent about enforcing common-law rules; nevertheless, applying it too strictly misses the point.