State Appellate Court Permits Expert Testimony by Foreign Doctor in Medical Malpractice Case

The California Court of Appeals recently published an opinion reversing a lower court ruling favoring the defendant in a medical malpractice lawsuit. The trial court had granted summary judgment to the defendant and disposed of the plaintiff’s claim by ruling that the plaintiff’s proposed medical expert, who was a licensed physician in Mexico but not the United States, could not offer testimony in support of crucial elements of the plaintiff’s case. Since the appellate court has reversed the lower ruling, the plaintiff’s lawsuit will proceed toward a trial or settlement of her claim.

GavelThe Plaintiff Suffers Worsening Symptoms After Having a Surgery Performed by the Defendant

The plaintiff in the case of Borrayo v. Avery is a woman who sought treatment from the defendant in 2009 for chronic pain in her right shoulder and arm. She was diagnosed with thoracic outlet syndrome, which was said to be the result of repetitive stress on her joints from her history of working in clothing production. In September 2009, the defendant performed a surgery on the plaintiff, removing one of her ribs to alleviate her symptoms and treat the diagnosed condition. According to facts discussed in the appellate opinion, the plaintiff’s symptoms failed to improve, and she developed new medical problems approximately one year after the procedure. Based on her worsening condition, the plaintiff filed a medical malpractice lawsuit against the defendant in November 2012.

The Defendant Successfully Challenges the Plaintiff’s Use of an Expert Licensed in Mexico, and Her Case Is Dismissed

The plaintiff alleged in her lawsuit that the defendant had destabilized her shoulder joint and worsened her condition by negligently cutting connected ligaments while performing the surgery. In support of her arguments, the plaintiff offered an expert declaration from a licensed physician in Mexico, which stated the defendant’s negligence was the cause of her worsening symptoms. The defendant objected to the expert’s opinion, and the trial court ruled that his testimony was not applicable to the standard of care that the plaintiff was entitled to receive in the United States. After striking the plaintiff’s expert testimony, the trial court granted final judgment to the defendant, finding that the plaintiff was unable to prove her claim for medical malpractice. The plaintiff then appealed the exclusion of her expert’s testimony to the California Court of Appeals.

The Appellate Court Allows the Plaintiff to Offer Her Expert’s Testimony

The California Court of Appeals disagreed with the trial court’s ruling that the plaintiff’s proposed expert was not qualified to offer testimony in the case because he was licensed only in Mexico. The high court noted that a valid medical expert does not need to be licensed to practice in the same locality where the treatment was originally provided, and an expert must only demonstrate familiarity with the circumstances of a similar medical community to that where the malpractice allegedly occurred. The court ruled that the plaintiff’s expert was certainly qualified to act as an expert because he has practiced in a similar environment to that of the defendant, he had 30 years of experience as an orthopedic surgeon, and he had performed between 10 and 12 surgeries very similar to that performed on the plaintiff. Finding that the defendant’s motion to strike the plaintiff’s expert testimony should not have been granted by the trial court, the court of appeals reversed the lower ruling and sent the case back down to proceed toward a trial.

Medical Expert Requirements in Maryland Medical Malpractice Claims

A plaintiff in a Maryland medical malpractice lawsuit is required to offer the testimony of a qualified medical expert in support of their claim. A qualified expert does not need to be licensed in the exact same field or practice in the same locality as the defendant, but he or she must be knowledgeable about the accepted standard of care in the discipline practiced by the defendant, in which the alleged malpractice occurred. A Maryland medical malpractice victim who fails to offer the testimony of a qualified medical expert in their case may lose their right to seek compensation for their claim.

Preparing for a Medical Malpractice Lawsuit

If you or a loved one has been a victim of medical malpractice, an attorney’s failure to properly prepare your case and retain a qualified expert could hurt your chances of recovering the damages that you deserve. The Maryland and Washington, D.C. personal injury and medical malpractice attorneys at Lebowitz & Mzhen, LLC have strong relationships with qualified medical experts who have a detailed knowledge of the accepted standard of care that patients in the region are entitled to receive. By retaining a Maryland medical malpractice attorney at our firm, you can be confident that your case is being handled with diligence and professionalism. At Lebowitz & Mzhen, LLC, we represent clients in Maryland, Northern Virginia, and the entire Washington, D.C. area. Call us toll-free at 1-800-654-1949 or contact us online to schedule a free consultation today.

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