Medical malpractice expert’s violation of the 20% rule results in reversal of a nearly $1 Million verdict

Many states require that an expert in a medical malpractice case be engaged in the active clinical practice of medicine.  These rules help prevent the proliferation of “professional” witnesses who do not treat patients but nevertheless opine how treating doctors should have performed their jobs in medical malpractice cases.

The issue in Brown v. Falik & Karim P.A., No. 3377, 2020 Md. App. LEXIS (Oct. 2, 2020) was whether the medical expert’s testimony about the time spent working as a witness was sufficient to satisfy Maryland’s 20% rule. The rule precluded testimony in malpractice cases by experts who spent more than 20% of their time acting as expert witnesses (the statute was amended to increase the threshold from 20% to 25%). The expert’s testimony about the percentage of income generated from testifying was contradictory. He failed to produce financial documentation. As a result, the defense argued that the expert did not satisfy the 20% rule. The trial judge disagreed and denied a motion to disqualify the expert and denied a motion for judgment after the plaintiff presented her case. The jury then returned a plaintiff’s verdict and awarded more than $900,000 in damages. However, the trial judge reversed course, granted the defense’s motion for judgment notwithstanding the verdict, and concluded that the expert was not qualified to testify.

On appeal, the Court of Special Appeals of Maryland upheld the trial judge’s disqualification of the expert for failing to satisfy the 20% rule and found that an expert must produce detailed time records to prove the percentage of time spent practicing medicine. The expert’s contradictory testimony and failure to produce documents were grounds for disqualification.

Therefore, if you are in a state that requires an expert in a medical malpractice case to be actively practicing medicine, you should ensure early on that the expert can produce documents proving the time spent in practice. You do not want to be in a situation where a verdict gets overturned for failure to abide by rules for qualifications that experts must possess.

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