The Daubert rule is directed at evaluating scientific evidence, especially epidemiologic and statistical evidence. Whereas such evidence is frequently at issue in medical care–related cases, the most common evidentiary question is the determination of the proper standard for medical treatment. In a medical malpractice case, the plaintiff must present expert testimony as to the proper standard of care, how the medical care practitioner defendant deviated from that standard, and how the deviation caused the patient’s injury. These are matters that are generally not the subject of rigorous scientific investigation and are thus less susceptible to the Daubert rule. Their proof depends on the testimony of experts who give an opinion, based on their experience, as to what the reasonable physician would have done in the same or similar situation as the defendant.

The attorney offering the testimony of an expert witness must follow certain legal formalisms to have the expert’s testimony accepted in court. The attorney must first establish that the witness has the proper medical qualifications. When the witness is presented, the opposing counsel may ask to stipulate that the witness is qualified. This is done when the witness is clearly qualified and opposing counsel would prefer that the jury not dwell on the witness’s background. If the defense does not stipulate to the witness’s qualifications, the expert witness must describe his or her background, practice, or academic experience and any other training or experience that is relevant to the case. Most important, the expert must assert familiarity with the treatment of patients with the plaintiff’s complaint by physicians similarly situated to the defendant.

The attorney offering the expert witness will tailor the testimony to the expert’s qualifications. If the expert is a general practitioner testifying against a specialist, the testimony will be heavily weighted toward establishing that any competent physician would have avoided the defendant’s error. If the expert is a specialist testifying against a general practitioner, the expert will be questioned whether the general practitioner had a duty to refer the patient to a more skilled physician.

If both the expert and the defendant are specialists, the jury must be convinced that the defendant delivered substandard care, as opposed to making a well- reasoned but incorrect judgment. The plaintiff’s expert will try to explain the plaintiff’s medical condition and the standard of care question in simple terms. This allows the jurors to convince themselves that there was no acceptable excuse for the defendant’s failure to render the care described by the plaintiff’s expert.

An alternative tactic is to attack the defendant’s qualifications to treat the plaintiff’s condition. This may be done with either a same- specialty expert or, preferably, an expert from a different and more appropriate specialty. The best situation for this approach is when the patient’s condition is usually managed by a different specialty: for example, a surgeon defending his supervision of a certified registered nurse anesthetist against damning testimony by an anesthesiologist. The hope is to force the defendant to abandon his posture of special knowledge. If the plaintiff is successful in establishing the defendant’s lack of special knowledge, then the defendant must contend that the treatment of plaintiff’s condition was a matter of general medical knowledge. Even if the plaintiff is not wholly successful, he or she will still force the defendant to expend credibility on refuting the allegation that he was unqualified to manage the patient’s condition. For guidelines for expert witness testimony in medical liability cases, see Appendix 5–A.