Expert Testimony On Medical Standard Of Care Issues

While expert testimony may not always be required to show whether a doctor satisfied a particular standard of care, a number of courts have concluded that this type of expert testimony will assist the jury, including in United States v. Smith, 573 F.3d 639 (8th Cir. 2009)

FRE 702 provides for the admission of expert testimony which may assist the jury in deciding the questions of fact in the case. One area of possible expert testimony concerns the standard of medical care. This issue may arise in cases involving whether certain medical care (such as the prescription of a particular drug) complied with the required standards of professional care. As we have noted, there are some cases that have held that expert testimony may not always be required. See, e.g., Expert Testimony Was Unnecessary To Prove Standard Of Care Necessary To Prescribe Controlled Substances. However, this does not necessarily mean that expert testimony is impermissible.

A number of courts have held that expert testimony may be useful for the jury. For some examples of cases addressing this issue and allowing expert testimony, consider:

  • Fourth Circuit: United States v. Lawson, 682 F.2d 480, 482-83 & n.6 (4th Cir. 1982) ( “as the government's expert, … a professor of pharmacy at the University of Maryland testified, the uniform dosages and quantities belied any conclusion that the prescriptions in this case were ordered for individual patients”; expert “was asked if, in his opinion, the prescriptions were issued for a legitimate medical purpose, he answered from a pharmacist's perspective, pointing to the flags of illegitimacy (such as the uniformity of the prescriptions) which should signal a pharmacist that the prescriptions were not legitimate.”)
  • Sixth Circuit: United States v. Perry, 940 F.2d 664 (6th Cir. 1991) (per curiam) (unpublished) (In considering claim that pharmacist “impermissibly testified that he believed it was unusual: that defendant used a large number of wholesalers and distributors to supply his pharmacy; that a number of controlled substances were missing from defendant's store; that defendant failed to notify the DEA of alleged thefts of drugs; and that certain drugs were prescribed together. We find these matters to be precisely within the realm of permissible expert testimony allowable under Fed. R. Evid. 702.”)
  • Seventh Circuit: United States v. Bek, 493 F.3d 790, 797 (7th Cir. 2007) (noting “expert testimony from a pharmacist who explained that [the doctor’s] practices were dangerous and very unusual” and that the doctor “should have conducted several diagnostic tests and reviewed patients’ medical histories before prescribing drugs such as Vicodin”)
  • Eighth Circuit: United States v. Smith, 573 F.3d 639, 653-55 (8th Cir. 2009) (admitting expert of certified pharmacist testimony about “the type of relationship usually considered necessary for a doctor to issue a valid prescription”; “Despite the fact that [expert] Catizone was not a medical doctor, we find that his testimony regarding the type of information a doctor should have to prescribe a particular drug, and whether Dr. Mach met that standard, fell within his expertise.”)
  • Tenth Circuit: United States v. Lovern, 590 F.3d 1095, 1101-02 (10th Cir. 2009) (Certain “regulations expressly place a duty on pharmacists not to knowingly fill prescriptions issued outside the usual course of medical practice. See 21 C.F.R. § 1306.04(a). Given this legal duty, it does not strain the imagination to think that some pharmacists might know and be qualified to speak about what it means for a prescription to be consistent or inconsistent with the usual course of medical practice.”)

Whether this type of medical expert testimony is required in any case will depend on the facts. However, these cases show that the courts have accepted this expertise to assist the jury.

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