Medical Malpractice Expert Witness 20% Rule

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In Brown v. Falik & Karim, P.A., et al., the Court of Special Appeals decided the issue of “whether [Ms.] Brown’s expert witness, Dr. Sanford Davne was in compliance with the so-called ‘twenty-percent rule,’ which generally precludes testimony in medical malpractice cases by experts who spend more than twenty percent of their time acting as expert witnesses.” While the applicable statute is worded somewhat differently and has been amended to increase the threshold from 20% to 25%, the statute at the time of Ms. Brown’s case contained a threshold of 20%. Ms. Brown, through her counsel, filed a certificate of qualified expert for Dr. Davne wherein he attested to the breach in the standard of care by the defendant neurosurgeon. In said certificate, Dr. Davne reported that no more than twenty percent of his annual activities were related to testifying as an expert witness.

“At trial, as expected, Brown called Dr. Davne as her expert witness. Dr. Falik objected, arguing that Dr. Davne had not produced sufficient documentary evidence from which to ascertain compliance with the twenty percent rule. The trial court decided that despite Dr. Davne’s failure to produce the relevant documents, Dr. Davne was nonetheless qualified to testify. At the conclusion of Brown’s case, Dr. Falik moved for judgment. Dr. Falik’s argument proceeded in three steps: first, Dr. Davne was not in compliance with the twenty percent rule; second, that without Dr. Davne, Brown had no evidence to support her claim that Dr. Falik had violated the standard of care; and third, that in the absence of evidence of violation of the standard of care, Dr. Falik was entitled to judgment. The trial court declined to rule on Dr. Falik’s motion for judgment, deferring until after the jury’s verdict. After the close of the defense’s case, Dr. Falik renewed his motion for judgment on the same grounds. Again, the trial court declined to rule and deferred its decision. The jury returned a verdict for Brown as to the malpractice claim and awarded damages in the amount of $911,227.02. [footnote omitted] After trial, Dr. Falik filed a written memorandum renewing his motions for judgment on the same grounds. This time, the trial court reconsidered and found that it had erred in allowing Dr. Davne to testify. It, therefore, granted a judgment notwithstanding the verdict.”

The Court of Special Appeals affirmed the trial court by way of an unreported decision. The Court of Special Appeals held, in part, that because Dr. Davne had produced insufficient information “the trial court was left without the ability to corroborate the assertion that Dr. Davne satisfied the twenty percent rule.” And, in such a circumstance, the Court of Special Appeals could not hold that the trial court abused its discretion in finding that Ms. Brown failed to satisfy her burden of production. The Court of Special Appeals held that “[o]nce the trial court determined that Dr. Davne was barred by the twenty percent rule, Brown had no evidence to support the notion that Dr. Falik violated the appropriate standard of care. As such, the only appropriate remedy was to grant the judgment notwithstanding the verdict.” This case is a clear indicator of the perils of trial and things that can go wrong. Law360 also reported on this outcome.