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Bissett v. Renna5/19/1998
r treatment for Ms. Merchant's condition in the summer of 1988, and he could not evaluate all of the risks and benefits of the course of treatment available to the defendant at that time.
In light of Dr. Kosegarten's own admission that he is unfamiliar with the standard of care required of the defendant, the trial court did not abuse its discretion in ruling that he could not serve as the plaintiff's sole liability expert. We agree that he is not qualified to testify as an expert witness to the standard of care expected of an ophthalmologist in the defendant's position. The plaintiff failed to meet her burden under the first prong of RSA 507:E-2. Cf. Chase, 140 N.H. at 511-13, 668 A.2d at 52-53.
Second, the plaintiff contends that use of the PDR, either by itself or in conjunction with the testimony of Dr. Kosegarten, will suffice to establish the standard of care required of the defendant. We disagree.
The PDR is an annual publication containing pharmaceutical product information provided by drug manufacturers and approved by the FDA. See Annotation, Medical Malpractice: Drug Manufacturer's Package Insert Recommendations as Evidence of Standard of Care, 82 A.L.R.4th 166, 171 n.3, 173 (1990). The information contained in the PDR is nearly identical to that found in the drug package insert sheet. See id. at 171 n.3. The insert sheet is derived from data the manufacturer has presented to the FDA as proof that the drug is safe and effective for the uses for which the manufacturer intends to market the drug. See id. at 173. The insert informs the physician of "(1) the conditions under which the drug should be prescribed; (2) the disorders it is recommended to relieve; (3) the precautionary measures which should be observed; and (4) warnings of adverse effects that may result." Id. A PDR entry typically includes the "trade and chemical names of the drug, a description of the drug, indications and contraindications for its use, warnings, adverse reactions, administrations and dosage, and information on managing and adjusting the dosage of the drug." Id. at 173-74.
We find that the PDR, by itself, is insufficient to establish the standard of care required of the defendant. See RSA 507-E:2, I(a). RSA 507-E:2 clearly requires the plaintiff to produce expert testimony of a competent witness regarding the standard of care applicable to the defendant. The general rule in medical malpractice cases is that the standard of care in the medical care provider's profession or specialty, if any, at the time the medical care in question was rendered must be established through expert testimony. See RSA 507-E:2; cf. Durocher v. Rochester Equine Clinic, 137 N.H. 532, 535, 629 A.2d 827, 829 (1993); Thorpe v. State, 133 N.H. 299, 304, 575 A.2d 351, 353-54 (1990) (noting general rule in medical malpractice cases is that proximate cause between negligence and injury must be established through expert testimony). An exception to this requirement may exist in cases where the evidence rests on "non-technical matters or those of which an ordinary person may be expected to have knowledge." Mehigan v. Sheehan, 94 N.H. 274, 275-76, 51 A.2d 632, 633 (1947) (quotation omitted); see also Bronson v. The Hitchcock Clinic, 140 N.H. 798, 810, 677 A.2d 665, 673 (1996) (Horton, J., Dissenting); Beane v. Perley, 99 N.H. 309, 310, 109 A.2d 848, 849 (1954). But see RSA 507-E:2, I (requiring expert testimony to establish requisite standard of care in medical malpractice actions). In this case, however, an average jury member is unlikely to possess sufficient knowledge regarding the standard of care required of an ophthalmologist in the defendant's position without expert testimony.
Accordingly, the tria
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