In a 6-2 vote the Mississippi Supreme Court reversed the Court of Appeals today and awarded summary judgment to the defendants in Estate of Northrop v. Hutto. This was a medical malpractice case where the Harrison County Circuit Court (Judge Lisa Dodson) granted summary judgment to Gulfport Memorial Hospital and other defendants on the grounds that the plaintiff’s expert witness did not articulate the required standard of care. The Court of Appeals had reversed the trial court.

Reading between the lines, it appears that the plaintiff’s expert was unsophisticated as an expert witness and did not understand what the phrase “standard of care” means. Since the expert did not understand the concept of standard of care, he was unable to articulate the standard. Justice Randolph’s majority opinion noted that:

The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff’s selected medical expert. The expert must articulate an objective standard of care.

The opinion then heavily quoted the expert’s deposition, including testimony like:

Q: So, obviously, Doctor, this would not indicate the standard of care in Marchof 1999, would it?

A: I don’t — I’m not sure what you mean by describing the standard of care. None of [the documents brought to the deposition] deal with the standard of care. They are all case reports of infiltration, different problems with extravasation. I have not brought anything on the standard of care if that’s what you’re referring to.. . .

Q: . . . There is no textbook of anesthesia that says in writing the standard of care requires visual or palpation observation of the fluid actually going into the vein during an ongoing case; that is correct?

A: That is correct.

Arguably this last question was a trick question, since medical textbooks typically do not articulate the legal “standard of care.” A testifying expert must understand that the phrase “standard of care” means articulating what exactly a minimally competent physician would have done in providing reasonable care to a patient. Stated another way, the expert simply must identify what the defendant should have done and state that this is what the standard of care required.

This case is an example of why plaintiff’s attorneys have to be very careful in cases requiring expert testimony. just having an expert who “makes a good witness” or looks good on paper is not enough. The expert must also understand what the plaintiff must prove in order to establish a case and be able to articulate opinions that satisfy the plaintiff’s burden. That burden includes identifying what the standard of care required the defendant to do. It is also worth noting that although the defendant does not have the burden of proof, defense experts must also be able to articulate the standard in order to be allowed to testify at trial.

This was a fact specific case with little significance to other cases other than serving as a caution signal to lawyers to make sure that their expert witnesses are prepared to testify.