In my previous column I discussed the shift in the tone of recent appellate decisions that have interpreted and addressed the intersection of N.C. Gen. Stat. § 90-21.12, Rule 9(j), and Rule 702 of the Rules of Evidence in medical malpractice cases. These decisions have lowered the evidentiary bar tending to disfavor capricious exclusion of experts by trial courts based on isolated lapses of memory, testimonial gaffes, or dubious misapplication of the same or similar community standard upon questioning by defense counsel.
But trial courts have been slow to digest and absorb this seeming reversal of course. It remains important to take proactive measures to insulate expert witnesses from attack based on deficiencies in their deposition testimony. To reduce the chances of an adverse dismissal or entry of summary judgment, counsel should question their experts during their discovery deposition to lay a proper foundation for their opinions, just as if they were qualifying the expert at trial upon voir dire.
While the following points aren’t a comprehensive list, their application can reduce considerably the risk that an expert will be excluded based on defects in her deposition testimony and a resultant case-determinative order will be entered against the plaintiff.
1. During the expert’s deposition, mark as exhibits and review with the expert all demographic data and other information considered while familiarizing herself with the standard of care in the community at issue—for example, all documents containing demographic information regarding the community where the alleged malpractice occurred or describing the medical facilities and resources in the community.
If the care at issue was rendered in a hospital or other health care facility, mark and review documents containing information about the facility, including the number of beds, accreditation, licensure, available equipment, and subspecialties with privileges. These should be reviewed by the expert pre-suit (critical if the witness is a 9(j) expert) but certainly before deposition. After filing suit, serve tailored discovery to obtain documents and information from the defendants relevant to defining the applicable standard of care.
Information about hospitals and other institutions is available from the Division of Health Service Regulation (www.info.ncdhhs.gov). For information regarding the health care providers practicing in a community or other community-specific data, visit the Cecil G. Sheps Center website (https://www.shepscenter.unc.edu). If nursing care is at issue, give the expert information from the Board of Nursing site (https://www.ncbon.com) and a copy of the Nursing Practice Act. If a defendant is a physician or physician practice group, basic information is available from the Medical Board (https://www.ncmedboard.org).
These are provided as illustration, but the available resources are virtually limitless. Identify materials by category in a detailed enclosure letter to the expert. Label them before they’re sent to the expert to facilitate their production as an intact and comprehensive set during discovery or deposition. Review them with the expert during deposition, and be sure to mark them as deposition exhibits.
2. If ascertaining the prevailing standard of care in a defendant’s community is problematic, the expert will typically have to testify that she is familiar with the standard in a similar community. If so, be sure the expert is prepared to identify specific points of similarity between the two communities. This will require testimony indicating that the expert is relying on accurate demographic information and other data in drawing this comparison. At deposition, question the expert regarding the factual basis for deeming the two communities comparable and the relevance of such data to forming her opinions. If your expert plans to testify that the care at issue is governed by a national standard (not encouraged), be sure the expert is prepared to testify that the local standard of care is the same as the national one, and mark and include as exhibits all documents the expert is relying upon in reaching her conclusion.
3. Include with the initial mailing of materials to the expert a detailed enclosure letter identifying in detail the materials being provided and describing North Carolina’s same or similar communities standard, emphasizing that the expert will be expected to develop a working understanding of the community standard of care and apply that standard to the care and treatment at issue in the case. Mark the letter as a deposition exhibit and review it with the expert during deposition to establish that the expert has reviewed sufficient data to form reliable opinions.
4. Rule 9(j) experts should execute an affidavit following their review of the relevant medical records, and always before filing suit. Such an affidavit can go a long way in ensuring that the expert will pass 9(j) muster. Among other things, the affidavit should include a comprehensive recitation of the medical records and other information considered and reviewed by the expert before filing suit (with specificity as to dates, source, category, etc.). Include statements demonstrating that, before forming her opinions and before filing suit, the expert reviewed all publicly available information regarding the defendant’s education, training, and experience. Be sure to indicate in the affidavit that the expert is willing to testify to her opinions at trial. Mark the affidavit as a deposition exhibit, and question the expert regarding its contents.
5. Mark as an exhibit and question the expert regarding the responses to Rule 9(j) interrogatories verified by the expert during discovery.
6. If the expert stumbles during her discovery deposition regarding Rule9(j) compliance, applying the same or similar communities standard, or another foundational matter, be sure to clean up the testimony following the conclusion of questioning by defense counsel. If a motion to dismiss, motion to exclude, or motion for summary judgment is filed after the deposition, be sure to submit and file an affidavit from the expert clarifying, supplementing, and, if necessary, rectifying the damaging testimony. Curative post-deposition affidavits have been consistently accepted by the appellate courts as a viable device for clarifying and supplementing (but not contradicting) ambiguous or conflicting deposition testimony. Mark all such affidavits as deposition exhibits and have your expert review the affidavit at her deposition, explaining any disparities between her deposition testimony and the curative affidavit.
7. Since 2011, all Rule 9(j) experts must review “all medical records pertaining to the alleged negligence” before filing suit. This seemingly benign amendment to 9(j) is becoming a new battleground in medical malpractice cases. Before submitting medical records to the 9(j) expert, ensure that you’ve cast a wide net in gathering relevant records. Err on the side of over-inclusion.
Accurately establishing the universe of medical records reviewed by the 9(j) expert before filing suit will be critical when confronted with a motion to dismiss pursuant to 9(j). In the event of an appeal, the ability to re-constitute the set of medical records provided to the expert pre-suit will be crucial. Be sure that your expert arrives for her deposition with an intact, pristine, and unmarked set of the documents provided to her. Mark the medical records as a deposition exhibit and elicit testimony from the expert regarding her consideration of them, including testimony establishing when she reviewed the records and when she first communicated her opinions to counsel.
8. During discovery, be sure to obtain by way of interrogatories, requests for documents and deposition additional information regarding the defendant’s background and experience. Provide deposition transcripts, discovery responses, and other relevant discovery materials to the expert before deposition. During deposition, explore the expert’s consideration of these documents have her explain their relevance to her opinions.
9. If a hospital or other health care facility is a defendant, obtain in discovery and give your expert all relevant policies, procedures, and protocols. Mark these as exhibits to the expert’s deposition, and question her regarding their relevance to understanding and applying the applicable standard of care.
10. We’ve begun to see expert affidavits challenged on the grounds that they were drafted by counsel and not the affiant-witness. The reasoning underlying these attacks appears to be that this somehow impacts the veracity or admissibility of the affidavit. To dispel such contentions, be sure that your expert is prepared to testify at deposition that any affidavits executed by her are based upon her own personal knowledge and expertise, even if prepared by counsel. For legal support refuting this technique see In Re Somerset Regional Water Resources, Inc., 592 B.R. 38 (W.D. Pa. 2018) and Rule 56(e) of the North Carolina Rules of Civil Procedure.
11. Don’t close your standard of care expert’s deposition without putting evidence on the record that establishes a prima facie case of medical malpractice. This testimony should define and describe the applicable standard of care, set forth expert opinions that the defendant-provider breached that standard, elicit testimony establishing that the defendant’s negligence proximately cause the plaintiff’s injuries (if there are no causation experts other than the standard of care expert), and develop testimony that describes the resulting injuries and damages suffered by the plaintiff. Again, if this ground hasn’t been plowed by defense counsel, it’s important to develop such evidence during the expert’s deposition to help overcome a possible summary judgment motion.
12. Establish through deposition testimony that the expert is qualified to testify at trial under the requirements set forth in Rule 702. Questioning should seek testimony to establish that in forming her opinions the expert relied upon and considered sufficient facts and data regarding the care at issue and that the opinions rendered by the expert were the product of reliable principles and methods (e.g., arriving at a differential diagnosis based on review of relevant medical records).
Other aspects of Rule 702 should be explored during the depositions of standard of care experts if opposing counsel failed to obtain such testimony upon his questioning of the expert. Establish that the expert is a licensed health care provider, and if the defendant is a medical specialist, establish that the expert practices in the same specialty as the defendant or practices in a similar specialty that includes performance of the procedure at issue. Establish that in the year preceding the occurrence at issue, the expert devoted a majority of her professional time to either the active clinical practice of the same health profession as the defendant-provider or the instruction of students in an accredited health professional school or accredited residency or clinical research program.
To many, employing such techniques seems excessively overprotective and unnecessary. After all, the discovery deposition of an expert merely provides opposing counsel with an opportunity to learn the opinions held by the expert and develop the facts and methods underlying them. Nothing in the Rules of Civil Procedure, Rules of Evidence, or applicable case law suggests that parties have an affirmative duty to qualify their experts during a discovery deposition. That is properly reserved for full-blown voir dire at trial, where the opinions of an expert and the soundness of those opinions can be explored under direct examination and tested by vigorous cross-examination.
Nevertheless, defendants persist in their efforts to exclude properly qualified experts, and trial courts still indulge these efforts. While the foregoing techniques may seem to some as excessively onerous, burdensome, or expensive, such efforts can go a long way in insulating plaintiffs from the risk of a 9(j) dismissal or entry of summary judgment against them.
Mark McGrath is an attorney with Brent Adams & Associates in Raleigh, where he focuses his practice on medical malpractice, nursing home negligence, third-party workplace injury, wrongful death and catastrophic personal injury litigation. He welcomes comments and may be reached at email@example.com.