Section 16.52a. Expert witnesses—statement of policy

To enhance the quality of expert testimony given in disciplinary proceedings before the Board and its hearing examiners, persons appearing as expert witness should possess, whenever practicable, the following qualifications:

(1) General rule. Persons offering expert medical opinions in a disciplinary action before the Board and its hearing examiners should be able to demonstrate their competency to testify by showing that they possess sufficient education, training, knowledge and experience to provide credible, competent testimony in the specialty and subspecialty about which the expert intends to testify and should possess the additional qualifications set forth in this section, as applicable.

(2) Medical testimony.

(i) An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, should:

(A) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia, and obtain at a minimum a temporary license from the Board.

(B) Be engaged in, or have retired within the previous 5 years from, active clinical practice or teaching of medicine.

(ii) On matters other than the standard of care, the Board may choose to accept testimony from a nonphysician expert who demonstrates competence to testify about medical or scientific issues by virtue of education, training or experience specifically related to the issues on which the testimony is proffered.

(3) Standard of care. In regard to testimony offered on the standard of care, an expert should:

(i) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

(ii) Practice in the same specialty and subspecialty as the respondent physician or in a subspecialty that has a substantially similar standard of care for the specific care at issue, except as provided in paragraph (4) or (5).

(iii) In the event a Board-recognized certifying board certifies the respondent physician, the expert should also be board certified by the same or a similar approved board, except as provided in paragraph (5).

(4) Care outside specialty. The Board may choose to accept testimony of an expert testifying on the standard of care for the diagnosis or treatment of a condition when the Board determines that:

(i) The expert is trained in the diagnosis or treatment of the condition, as applicable.

(ii) The respondent physician provided care for that condition and the care was not within the respondent physician’s specialty.

(5) Otherwise adequate training, experience and knowledge. The Board may also choose to accept testimony as to a standard of care from an expert who does not possess qualifications in the same specialty or subspecialty of the respondent physician or does not possess the same board certification of the respondent when the Board determines that the expert nonetheless possesses sufficient current training, experience and knowledge to provide the testimony as a result of active involvement in research or full-time teaching of medicine in the applicable specialty or subspecialty or a related field of medicine.

(6) Application of Board’s own expertise. Nothing in this subsection precludes the Board from applying its own expertise in determining the applicable standard of care in disciplinary matters before the Board.

The provisions of this § 16.52a adopted June 6, 2008, effective June 7, 2008, 38 Pa.B. 2661.