Physicians are often called upon to evaluate the conduct of physician’s assistants (PA) and whether such conduct comports with the PA standard of care. Whether the physician will be permitted to offer an opinion in this regard, varies by state and by the context of the situation involved in the case.
The admissibility of physician expert testimony is decided respectively by each state’s rules of evidence and the federal rules of evidence, but most jurisdiction’s hold that a physician can testify as to the PA standard of care.[1] The physician testifying, however, generally must demonstrate that he/she is sufficiently familiar with both (1) the PA’s medical field and (2) the standard of care required of that PA in that respective community or locality.[2]
First, most states require that the physician is licensed to practice in the challenged medical field in the state or demonstrate sufficient knowledge of a similar community in that medical field.[3] Most commonly, sufficient knowledge in the medical field is demonstrated by educational experience, including degrees held, certificates, and professional background, including medical residency, licenses, tenure of specialty and expertise.[4] Secondly, Courts require that the physician have familiarity with the PA standard of care within their medical field, including that PA’s local/regional standard of care.[5] The rationale for the two-part analysis is to ensure that experts both maintain a sufficient baseline of knowledge on both the medical area of expertise, but also the roles and duties of a PA in that same area as well.[6]
For example, in Katy v. Capriola, the Court of Appeals of North Carolina applied the standard that a physician may testify for the standard of care of a PA in a medical malpractice case if the physician is familiar with the experience and training of the PA and the PA’s required standard of care in that community.[7] Moreover, in Dishmon v. Fucci, the Supreme Court of Delaware held that in order for a physician to testify in the same regard, the physician need only establish their familiarity with the level of skill normally employed by a PA of the type that the physician has expertise in.[8] Similarly, in Samples v. Hanson, the Supreme Court of Idaho held that a physician can testify in this regard if they possess the knowledge and expertise combined with knowledge of the applicable standard of care in the respective community to which the testimony is addressed.[9]
About the Author
Kelly J. Wilbur, Esq., is a Trainer and Consultant for SEAK, Inc – The Expert Witness Training Company. She was an insurance defense and commercial litigator for five years prior to joining SEAK. Kelly received her J.D., cum laude, from the University of Massachusetts School of Law in 2015 and graduated from St. Mary’s College of Maryland with a B.A. in Political Science. While at St. Mary’s, Kelly was a member of the nationally ranked varsity sailing team and was a two-time All-American. Kelly has experience preparing experts for deposition and trial testimony. Phone: 617-791-6802 Email: kelly@seak.com www.seak.com www.seakexperts.com
[1] See Cox v. M.A. Primary and Urgent Care Clinic, 313 S.W.3d 240, 255–56 (Tenn. 2010) (detailing the while most states have statutory provisions that compel a different standard of care for a PA and physician, a physician can generally testify for a PA’s standard of care in a medical malpractice or negligence action). A small minority of states have applied the PA standard of care to be the same as a physician’s standard of care, reasoning that the duties flow between both a PA and a physician. See id. (noting that Michigan, Cleveland, Wyoming, and South Carolina all have imposed the same standard of care on a PA and a physician).
[2] See Katy v. Capriola, 742 S.E.2d 247, 251 (N.C. Ct.App. 2013) (stating that a physician may testify in this respect if they are knowledgeable of the applicable standard of care of PAs); David Polin, Qualification of Medical Expert Witness, 33 Am. Jur. Proof of Facts 2d 179, § 6 (2020) (noting that being familiar with PA standard of care by way, often demonstrated by working with or supervising PAs, established they are qualified to testify).
[3] See Cox, 313 S.W.3d at 260 (stating that the expert must be qualified in the necessary profession or specialty by measure of certification, experience, or relevance).
[4] See Capriola, 742 S.E.2d at 251–52 (holding that in this case, the expert possessed the necessary qualifications based on his license status in the state, work experience and expertise in a specialty, medical residency, certificates, and educational history).
[5] See id. at 251 (noting that a core requirement of the physician’s testimony is that he or she is actually familiar with the standard of care within the community of the defendant, along with that specialty in general).
[6] See Dishmon v. Fucci, 32 A. 338, 343 (Del. 2011) (holding that a physician can testify on the standard of care for a non-physician, needing only to establish a familiarity with the level of skill that is normal of the practitioner of that specialty).
[7] See Capriola, 742 S.E.2d at 251 (setting forth the codified requirements for a physician to offer testimony regarding a PA’s standard of care in a medical malpractice claim). The Court also stated that alternatively, the physician can establish admissibility by demonstrating familiarity with the medical resources in their respective community and the standard of care commonly required with those medical resources. See id. The Court went on to note that most jurisdictions grant considerable discretion to trial court judge decisions on expert testimony admissibility. See id.
[8] See Fucci, 32 A.3d at 344 (stating that qualification as an expert within this jurisdiction does not require an overly burdensome analysis into the physician’s expertise in a given medical field, just an establishment of familiarity with the standard of care). The Court in Fucci ultimately held that the lower court incorrectly decided that an expert’s testimony was to be thrown out because the expert’s affidavit did not include substantial supplemental evidence. See id. at 347.
[9] See Samples v. Hanson, 384 F.3d 943, 948 (Idaho 2016) (noting that the medical expert must establish that they are familiar with the PA standard of care for their medical specialty, during a specific timeframe, and specific to that community). The Court in Hanson ruled on a medical malpractice claim, ultimately deciding whether an expert made sufficient showing that they were aware of the standard of care of a PA at the time of an incident. See id. The court ruled that the doctor had actual knowledge of the applicable standard of care because the standard was common and the doctor had spent time practicing in that community under this standard. See id. at 949–50.