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Exemplary Statutory Language for Expert Witness Rules in Medical Liability Cases

Ohio Statute with Modifications

Expert testimony on liability issues.

(A)  No person shall be deemed competent to give expert testimony on the liability issues in a medical claim unless:

(1) Such person is at the time of the testimony and at the time of the occurrence that is the basis for the claim licensed to practice medicine and surgery, osteopathic medicine and surgery, or podiatric medicine and surgery by the state medical board or by the licensing authority of any state;

(2) Such person at the time of the testimony and at the time of the occurrence that is the basis for the claim devoted three-fourths of the person's professional time to the active clinical practice of medicine or surgery, osteopathic medicine and surgery, or podiatric medicine and surgery, or devoted at least one fourth of the person's professional time to active clinical practice and another one half of the person's professional time to its clinical instruction in an accredited university; 

(3) At the time of the occurrence that is the basis for the claim, the person practices in the same or a substantially similar specialty as the defendant. The court shall not permit an expert in one medical specialty to testify against a health care provider in another medical specialty unless the expert can demonstrate to the court's satisfaction both that the standards of care and practice in the two specialties are similar, and that the expert has substantial familiarity with the practice of both specialties.

(4) If the defendant physician is board certified in a specialty the performance of which is the basis for the liability action, such person giving testimony must also be certified in this specialty, by a board recognized by the American Board of Medical Specialties or the American Osteopathic Association.

(5) If the person is testifying as to the relevant standard of care, such person can demonstrate to the satisfaction of the court a reasonable basis for that person's familiarity with the standard of medical care as practiced in this state.

(B)  Nothing in division (A) of this section shall be construed to limit the power of the trial court to adjudge the testimony of any expert witness incompetent on any other ground.

(C)  Nothing in division (A) of this section shall be construed to limit the power of the trial court to allow the testimony of any other witness, on a matter unrelated to the liability issues in the medical claim, when that testimony is relevant to the medical claim involved.

(D) Notwithstanding all of the preceding sections, in any action for damages involving a claim of negligence against a physician providing emergency medical services in a hospital emergency department, the court shall admit expert medical testimony only from physicians who have had substantial professional experience within the preceding 5 years providing emergency medical services in a hospital emergency department.

(a)  For the purposes of this subsection:

1.  The term "emergency medical services" means those medical services required for the immediate diagnosis and treatment of medical conditions which, if not immediately diagnosed and treated, could lead to serious physical or mental disability or death.

2.  "Substantial professional experience" shall be determined by the custom and practice of the manner in which emergency medical coverage is provided in hospital emergency departments in the same or similar localities where the alleged negligence occurred.

Status of out-of-state physician testifying in medical liability action against physician.
 
A person licensed in another state to practice medicine, who testifies as an expert witness on behalf of any party in this state in any action against a physician for injury or death, whether in contract or tort, arising out of the provision of or failure to provide health care services, shall be deemed to have a temporary license to practice medicine in this state solely for the purpose of providing such testimony and is subject to the authority of the state medical board.

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