Causation Standard for Medical Testimony: Is a Medical Doctor Required for an Expert

Causation Standard for Medical Testimony: Is a Medical Doctor Required for an Expert

This is the second part of a two part blog using a hypothetical motor vehicle accident and addressing when an expert may or may not be needed to relate a Plaintiff’s injuries to an incident. This article addresses the standard for experts testifying as to causation when the potential expert is not a medical expert, but is a physical therapist. The hypothetical case arises out of a motor vehicle accident in which Plaintiff claims that she sustained various injuries. The Plaintiff took the deposition for use at trial of Physical Therapist. The hypothetical physical therapist specializes in the physical therapy and treatment of patients with neurological disorders. The physical therapist had a Ph.D. from a local state university.  The physical therapist had a DPT (Doctor of Physical Therapy Degree) and was certified by examination as a neuro-clinical specialist with the ability to treat patients with neurological disorders. The DPT testified that she made physical therapy diagnoses and consults with treating physicians as to medical diagnoses as well, even though, as she admitted, as a matter of law she is not suppose to make medical diagnoses.  The DPT testified as part of her physical treatment she determine what caused the symptoms. The DPT recommends medications to physicians, but does not prescribe them. As a part of her treatment, she makes physical therapy diagnoses, assists patients by determining causation of symptoms and makes a determination as to the best type of treatment.

In trying to exclude testimony of the expert (DPT), the hypothetical Defendant objected to various questions regarding causation. This article describes why the hypothetical expert is qualified to testify as to causation within her discipline.

The hypothetical Defendant argues the DPT, by her own admission and by law, is not qualified or permitted to render medical diagnoses.  In support of this assertion, Defendant cites 49 Pa.Code. § 40.2.  Defendant goes on to argue because DPT cannot offer these “diagnoses;” as she is not qualified to testify as to causation.  Defendant’s argument is improper and misplaced.  Even if 49 Pa.Code. § 40.2 specifically stated the DPT was not qualified to offer medical diagnoses, which as it will be shown it does not, the argument that DPT would not be able to testify as to causation is unsupported.

It is well settled in Pennsylvania that the standard for qualification of an expert witness is a liberal one.  Rettger v. UPMC Shadyside, 991 A.2d 915, 930 (Pa. Super. 2010).  When determining whether a witness is qualified as an expert, the court is to examine whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. Id.  It is to ascertain whether the proposed witness has sufficient skill, knowledge, or experience in the field at issue as to make it appear that the opinion or inference offered will probably aid the trier of fact in the search for truth. Id.  In the field of medicine, specialties sometimes overlap and a practitioner may be knowledgeable in more than one field. Id. Doctors will have different qualifications and some doctors will be more qualified than others to provide evidence about specific medical practices; however it is for the jury to determine the weight to be given to expert testimony in light of the qualifications presented by the witness. Id.

Further, but most importantly, Defendant’s statutory argument is akin to the argument in Flanagan v. Labe, 690 A.2d 183 (Pa. 1997).  Flanagan was expressly overruled by the decision in Freed v. Geisinger, 971 A.2d 1202 (Pa. 2009) (hereafter Freed (1)); which was reaffirmed in Freed v. Geisinger, 5 A.3d 212 (Pa. 2010) (hereafter Freed (2)).

In Freed, appellant presented expert witness, a registered nurse, to testify as to causation. Freed (1), at 1205.  Geisenger’s counsel objected on the basis that the expert was not a medical doctor, and, therefore was not qualified to give a medical diagnosis.  Id.  The trial court sustained the objection and relied on the decision in Flanagan, reasoning that expert nurse was not qualified to offer an opinion as to the cause of appellants pressure wounds because an opinion regarding the specific cause and identity of an individual’s medical condition constitutes a medical diagnosis, which a nurse is prohibited from making under the Professional Nursing Law, 63 P.S. §§ 211 et. seq. Id.  However, on appeal the trial court’s ruling was reversed and the holding in Flanagan was specifically overruled by the Pennsylvania Supreme Court. Id.    In Flanagan, defendant filed a motion in limine to preclude the nurse from testifying as to the causes of Flanagan’s condition, which the court determined was a medical diagnosis that the nurse was statutorily precluded from rendering.  Id.  The court in Flanagan thus concluded that “the nurse was precluded from testifying not because she did not possess specialized knowledge regarding the cause of Flanagan’s condition, but ‘because the normal test of competency is constrained by a statutory provision limiting the deemed competency of nurses.’ Id. at 1208 citing Flanagan, at 185. Again, the Flanagan ruling was specifically over ruled by the Pennsylvania Supreme Court. Id.

Therefore, the fact that some statutory code might limit her ability to give “diagnosis” is not a basis to disqualify her as an expert to testify as to causation, as the Defendant alleges. Furthermore, the Code that Defendant cites does not limit the DPT’s eligibility to testify to diagnosis or causation.

Here, Defendant has cited that the DPT is not qualified or permitted to render medical diagnoses under 49 Pa.Code. § 40.2, which provides, “the license issued to those practicing physical therapy does not authorize the right to use the title “Doctor of Medicine”, or the right to use drugs administered internally. Except as authorized in 63 P.S. § 1309, a person licensed under the act as a physical therapist may not treat human ailments by physical therapy or otherwise except upon the referral of a physician or other person authorized by law to order same.” (emphasis added). The DPT was referred by a licensed physician authorized to refer a patient to physical therapy under 63 P.S. § 1309 (a).

Again, in order to qualify as an expert witness in a given field, a witness normally need only possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience.  Freed (1), at 1206.  Ultimately, the Freed court upheld the liberal standard for qualification of an expert witness as recognized in Miller[1] and found the ruling in Flanagan was repugnant to Pa. R. Evid. 702[2] as a nurse duly qualified under Rule 702, but licensed under the Professional Nursing Law, would be precluded from offering expert testimony on medical causation, while presumably a non-licensed nurse, or any other individual, with the same knowledge or experience would be permitted, under the broad common law standard for expert testimony, to offer such testimony. Freed (1) at 1210.  In its ultimate decision, Freed abandoned Flanagan ruling because it would operates as a rule to preclude an otherwise qualified non physician from rightfully offering medical expert testimony.  Freed (2) at 217.

Freed also points to other cases where a witness was permitted to testify as to causation, without being a medical doctor.  In McClain v. Welker, defendant landlords filed a motion in limine to preclude the parents’ expert, a scientist who had a Ph.D., but who was not a medical doctor, from testifying as to the causal relationship between ingestion of lead and cognitive defects. 761 A.2d 155 (Pa. Super. 2000).  The Superior Court, in McClain, found the trial court’s decision, which relied on Flanagan “for the proposition that only medical doctors could testify as to causation”, to be misplaced asserting there was no assertion of any pretension to specialized knowledge related to medical causation in Flanagan.  Id. at 157.  The McClain court reasoned the scientist possessed more knowledge than is otherwise within the ordinary range of training, knowledge, intelligence or experience and should have been permitted to render an expert opinion “within the guise of Pa. R. Evid. 702 as to causation of cognitive disorders”. Id. at 157-58.

It is important to note, even though the decisions in Freed and McClain clearly demonstrate that the DPT would be able to testify to causation in the event that a statutory provision prohibited her from making medical diagnoses, the specific statutory provision cited by Defendant does not actually even offer such a prohibition. § 40.2, as cited above, only prohibits a physical therapist from using the title “Doctor of Medicine” or using drugs administered internally.  It also provides that a physical therapist may treat human ailments by physical therapy upon the referral of a physician in accordance with Section 9 of the Act.  Section 9 of the Act provides, “no individual license under this act (Physical Therapy Practice Act) as a physical therapist shall treat human ailments by physical therapy or otherwise except by the referral of an individual license as a physician . . .” 63 P.S. § 1309 (a).  The DPT was referred by a license physician in the hypothetical.  Consequently, Defendant’s argument that physical therapists may not provide medical diagnoses is not supported by the cited statute and its argument that the inability to provide a medical diagnosis precludes testimony as to causation (assuming arguendo that inability existed), is not supported by case law.