 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Bissett v. Renna5/19/1998
en offered in conjunction with expert testimony, in light of Judge Barry's determination that the plaintiff's only liability witness is not a competent expert witness, the court had no alternative but to grant the defendant's motion to dismiss.
On appeal, the plaintiff argues that the trial court erred in ruling that Dr. Kosegarten is not competent to testify as an expert witness concerning the applicable standard of care. In addition, the plaintiff contends that RSA 507-E:2 permits the PDR, absent expert testimony, to serve as prima facie proof of the applicable standard of care. The plaintiff maintains that use of the PDR to establish the standard of care regarding the prescription of an off-label drug, either alone or in conjunction with Dr. Kosegarten's testimony that a breach of that standard has occurred, is sufficient to shift the burden of proof to the defendant to justify his prescription of such drug.
RSA 507-E:2 governs the burden of proof in medical malpractice actions. The statute provides, in pertinent part:
I. In any action for medical injury , the plaintiff shall have the burden of proving by affirmative evidence which must include expert testimony of a competent witness or witnesses:
(a) The standard of reasonable professional practice in the medical care provider's profession or specialty thereof, if any, at the time the medical care in question was rendered; and
(b) That the medical care provider failed to act in accordance with such standard; and
(c) That as a proximate result thereof, the injured person suffered injuries which would not otherwise have occurred.
(Emphasis added.) The decision whether to qualify a witness as an expert is within the sound discretion of the trial court. See Chase v. Mary Hitchcock Mem. Hosp., 140 N.H. 509, 510, 668 A.2d 50, 52 (1995). We will not reverse such a decision unless the trial court clearly abused its discretion. See Mankoski v. Briley, 137 N.H. 308, 310, 627 A.2d 578, 579 (1993).
First, the plaintiff argues that a pharmacologist may competently testify as an expert witness concerning the standard of care required of a medical doctor in prescribing certain drugs. The defendant's administration of Feldene to treat the plaintiff's eye condition, however, is subject to the standard of care analysis mandated by RSA 507-E:2. The statute requires the plaintiff to prove by competent expert testimony the standard of care required of the defendant at the time the medical care was rendered, that the defendant failed to act in accordance with such standard, and that as a proximate result, Ms. Merchant suffered injuries which she would not otherwise have sustained. See RSA 507-E:2.
The plaintiff's proposed use of a pharmacologist, rather than a medical doctor, to testify to the standard of care required of the defendant ophthalmologist contravenes the requirements of RSA 507-E:2. For example, Dr. Kosegarten testified at the pretrial hearing that he did not have a medical degree and had received no training in the medical fields of ophthalmology or hematology. He also acknowledged that he had no experience treating patients with CME, and that he had never encountered the disease prior to being retained as a consultant in this case. In addition, Dr. Kosegarten testified that he had not performed any independent medical research relating to the treatment of CME by the use of Feldene.
Dr. Kosegarten further testified that he did not consider himself qualified to testify to the standard of care expected of an ophthalmologist in the defendant's position. He admitted that because he was not an ophthalmologist, he could not comment on the prope
Page 1 2 3 4 New Hampshire Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|