Not Treating Same Condition in 5 Years Before Trial, Med-Expert Disqualified

Not treating the same condition within five years of a malpractice claim disqualifies medical expert witnesses, the Supreme Court of Montana has ruled, upholding a district court's decision excluding the testimony of an orthopedic surgeon who had been board certified for over 30 years, was still in active practice and had been providing the treatment at issue within five years of the alleged malpractice but not within five years of the malpractice claim.

In Melton v. Speth, Mont. Sup. Ct. DA 17-0690, John Melton alleged that Dr. Steven Speth breached the standard of care after his spinal fusion partially failed. In November 2009, Dr. Speth had performed a spinal fusion surgery on Melton using a Medtronic TSRH-3D medical device. One of the locking screws did not hold, resulting in only a partial fusion of Melton's spine, requiring additional surgery in 2012 to remove "loose hardware" and fuse more of Melton's spine. In 2013, Melton filed his malpractice claim alleging that Dr. Speth had failed to properly secure the locking screw during the first surgery.

To support his claim, Melton engaged Dr. Steven Graboff, an orthopedic surgeon who had performed many spinal fusions, but had restricted his practice to non-surgical consultations and teaching in December 2004, four years and eleven months before the alleged malpractice, nearly nine years before the claim was filed.

Melton argued that Dr. Graboff was qualified as a orthopedic surgery expert witness because he "routinely treats ... the diagnosis or condition" that is "the subject matter of the malpractice claim."

The district court, however, found that Melton's malpractice claim was not based on Dr. Speth's diagnosis, which Dr. Graboff would be qualified to testify about, but on on Dr. Speth's surgery, surgery which Dr. Graboff no longer performed. The state Supreme Court agreed, noting Dr. Graboff's own testimony that he discussed patients options with those who needed surgery, but refered them to colleagues who would actually perform the surgery.

The state Supreme Court also cited the Montana Code Annotated:

§26-2-601. Medical malpractice expert witness qualifications.

(1)  A person may not testify as an expert witness on issues relating to negligence and standards of care and practice in an action on a malpractice claim, as defined in 27-6-103, for or against a health care provider, as defined in 27-6-103, unless the person:

(a)  is licensed as a health care provider in at least one state and routinely treats or has routinely treated within the previous 5 years the diagnosis or condition or provides the type of treatment that is the subject matter of the malpractice claim or is or was within the previous 5 years an instructor of students in an accredited health professional school or accredited residency or clinical research program relating to the diagnosis or condition or the type of treatment that is the subject matter of the malpractice claim; and

(b)  shows by competent evidence that, as a result of education, training, knowledge, and experience in the evaluation, diagnosis, or treatment of the disease or injury that is the subject matter of the malpractice claim against the health care provider, the person is thoroughly familiar with the standards of care and practice as they related to the act or omission that is the subject matter of the malpractice claim on the date of the incident upon which the malpractice claim is based.

(2)  If the malpractice claim involves treatment that is recommended or provided by a physician as defined in 37-3-102, a person may not testify as an expert witness with respect to issues of negligence or standards of care and practice concerning the treatment unless the person is also a physician.

(3)  A person qualified as an expert in one medical specialty or subspecialty is not qualified to testify with respect to a malpractice claim against a health care provider in another medical specialty or subspecialty unless there is a showing that the standards of care and practice in the two specialty or subspecialty fields are substantially similar. This subsection (3) does not apply if the subject matter of the malpractice claim against the health care provider is unrelated to the relevant specialty or subspecialty.

While the state Supreme Court cite cases of medical malpractice experts who had been allowed to testify who were not within the same medical speciality, as well as those who did not use the same types of treatements, the Court that as Dr. Graboff was not performing the same type of surgery within the statutory window, his testimony was correctly excluded by the district court.