Find out which states require medical expert witnesses to be actively practicing in order to serve as an expert witness.
States which require active clinical practice for a physician to testify as an expert witness in medical malpractice cases generally allow physicians to fulfill this requirement through teaching in a licensed medical program. There are also several states which allow a physician’s professional time to include only work which requires a medical license. In those states, volunteer work may be sufficient to fulfill the requirements of active clinical practice.
State-by-State Summary of Clinical Practice Requirements for Medical Expert Witnesses:
Alabama
In order to qualify as an expert witness in the State of Alabama, a physician is required to meet three threshold requirements. First, the physician must be licensed to practice medicine in the state of Alabama or another state. Secondly, the physician must be trained in the same practice area that is in question. Thirdly, the physician must have practiced medicine within aforementioned specialty within the same year as the alleged incident is claimed to have occurred. Holcomb v. Carraway, 945 So. 2d 1009, 1013 (Ala. 2006). Courts have previously allowed those who possess advanced degrees, and are well qualified with the technology in their field, to testify as an expert witness without directly treating patients within the preceding year. See King v. Corr. Med. Servs., Inc., 919 So. 2d 1186, 1195 (Ala. Civ. App. 2005) (holding that a nurse educator who has an advanced degree in nursing and engages in “health teaching”, is considered to engaged in the practice of medicine). Although courts have interpreted practicing medicine to include those engaged in health education, physicians must have previously practiced medicine directly involving the type of care in question. Id. (holding that a physician who previously created and supervised programs for offenders in a prison and specialized in internal medicine was ineligible to testify as a witness in a matter involving the emergency medical treatment of inmates). A physician who wishes to testify as an expert witness must have engaged in the clinical practice of medicine before becoming a health educator. See Dowdy v. Lewis, 612 So. 2d 1149, 1152 (Ala. 1992) (holding that a nurse with previous clinical experience who is now a healthcare educator is qualified to testify because of her continued supervision of nursing students who work directly with patients).
Alaska
There is no requirement of active clinical practice in the state of Alaska. Instead, a physician must demonstrate that he is, “qualified as an expert by knowledge, skill, experience, training, or education.” Marsingill v. O’Malley, 128 P.3d 151, 159 (Alaska 2006). A physician should also demonstrate that he is, “(1) a professional who is licensed in this state or in another state or country; (2) trained and experienced in the same discipline or school of practice as the defendant or in an area directly related to a matter at issue; and (3) certified by a board recognized by the state as having acknowledged expertise and training directly related to the particular field or matter at issue.” Alaska Stat. Ann. § 09.20.185 (West <2002> ). There are very few applicable cases where a defendant has challenged the competency of an expert witness in the state of Alaska.
Arizona
A physician is qualified to testify as an expert witness in the state of Arizona if he is able to fulfill either of two qualifications within the previous year. He must either spend the majority of his time actively engaged in the same practice area which is in dispute, or engage in the education of medical students in an accredited health care program which is applicable to the practice area which is actually disputed. Cornerstone Hosp. of Se. Arizona, L.L.C. v. Marner ex rel. Cnty. of Pima, 290 P.3d 460, 470, 231 Ariz. 67, 77 (Ariz. Ct. App. 2012). A physician who spends their professional time teaching must teach in an accredited program to qualify as an expert witness. See Hardy v. Catholic Healthcare W., 1 CA-CV 09-0790, 2010 WL 5059602 (Ariz. Ct. App. Dec. 7, 2010) (holding that a registered nurse who spent eighteen hours a month interacting with patients and forty more engaged in the non-accredited instruction was not qualified to be an expert witness).
A licensed professional, as enumerated by the Arizona legislature, is presumed qualified to testify as an expert witness. See Cornerstone Hosp. of Se. Arizona, L.L.C. v. Marner ex rel. Cnty. of Pima, 290 P.3d at 470 (holding that the legislature has expressly enumerated certain positions including registered nurses, physician therapists, and medical doctors as competent to testify). The proffered expert must be licensed in the State of Arizona or another state. Governale v. Lieberman, 250 P.3d 220, 223, 226 Ariz. 443, 446(Ariz. Ct. App. 2011). The proffered expert is only required to spend the majority of their time in one speciality, as it not possible to require a person to spend the majority of their time in more than area of practice. Baker v. Univ. Physicians Healthcare, 296 P.3d 42, 50, 231 Ariz. 379, 387(Ariz. Ct. App. 2013).
Arkansas
There is no requirement of active clinical practice in the state of Arkansas. Instead, a physician must demonstrate that there is, “a reasonable basis for saying a witness knows more of the subject at hand than a person of ordinary knowledge, his evidence is admissible.”
Courteau v. Dodd, 773 S.W.2d 436, 439 299 Ark. 380, 385 (Ark. 1989). Frequently, a physician would be required to demonstrate a knowledge of, “[t]he degree of skill and learning ordinarily possessed and used by members of the profession of the medical care provider …engaged in the same type of …specialty in the locality …or …similar locality.” Id. (holding that the qualification of a medical expert is not a question of education alone). A medical witness is qualified if he possesses more knowledge than the average person and is capable of testifying to the standard of care which the physician in question would have possessed. Hardy v. Bates, 727 S.W.2d 373, 375, 291 Ark. 606, 610 (Ark. 1987) (holding that a chiropractor was qualified to speak on the standard of care required by other chiropractors).
California
The state of California does not require a physician to be a licensed medical professional in order to qualify as an expert witness. A physician must show that he has the professional knowledge, or appropriate skill, to speak with authority on the subject in question and that he is familiar with the standards which are required of physicians under similar circumstances. There are no requirements similar to the “active clinical practice” requirements of other states. Chadock v. Cohn, 157 Cal. Rptr. 640, 642, 96 Cal. App. 3d 205, 209 (Cal. Ct. App. 1979). A physician can qualify as an expert witness without being licensed in the subject, as long as they have attained professional knowledge of the matter they are testifying about. See Evans v. Ohanesian, 112 Cal. Rptr. 236, 240, 39 Cal. App. 3d 121, 128 (Cal. Ct. App. 1974) (holding that a physician may testify on matters which are not his specialty, as physicians acquire knowledge about other specialties through their professional work experience). The only relevant criteria for determining whether an expert is competent to testify in California is: 1) professional experience including that which is obtained incidentally, 2) education and training, 3) and practical knowledge of what is required of physicians in the situation in question. A clinical practice requirement does not exist in California. Id.
Colorado
An expert witness is deemed competent to qualify as an expert witness in the state of California if, “by reasons of knowledge, skill, experience, training, or education, is so substantially familiar with the standard of care applicable to the defendant’s specialty as to assure the court that any opinion will be as well-informed as the opinion of an expert witness practicing the same specialty as the defendant.” Melville v. Southward, 791 P.2d 383, 388 (Colo. App. 1990). The expert witness must have acquired this knowledge through clinical practice or education, and must possess more than a mere familiarity with the issues in question. Greene v. Thomas, 662 P.2d 491, 493 (Colo. Ct. App. 1982). There was no mention of an active clinical practice requirement in Colorado.
Connecticut
There is no active clinical practice requirement in the state of Connecticut. In Connecticut, a physician is qualified to be an expert witness if they can demonstrate knowledge which is acquired through, “experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards.” Fitzmaurice v. Flynn, 356 A.2d 887, 167 Conn. 609 (Conn. 1975). A physician who was previously a surgeon, and became a consultant and a lecturer was qualified to testify as an expert witness. Id. (holding that an expert witness was qualified to testify in a medical trial while teaching a clinical program and lecturing).
Delaware
The State of Delaware imposes rigid restrictions on the qualification of medical expert witnesses. Expert Witness Testimony is regulated by 18 Del.C. § 6854, which states, “(a) No person shall be competent to give expert medical testimony as to applicable standards of skill and care unless such person is familiar with that degree of skill ordinarily employed in the community or locality where the alleged malpractice occurred, under similar circumstances, by members of the profession practiced by the health care provider; provided, however, that any such expert witness need not be licensed in the State. (b) Any physician who has been in the active practice of medicine or surgery for at least the past 5 years and who currently practices in the State or within a state contiguous to the State and within a radius of 75 miles of the Capitol of the State shall be presumed to be competent to give expert medical testimony as to applicable standards of skill and care, if it shall be established that the degree of skill and care required of the expert in the locality where the expert practices or teaches is of the same or equivalent standard as the skill and care employed in the community or locality where the alleged malpractice occurred. ” Thomas v. St. Francis Hosp., Inc., 447 A.2d 435, 436 (Del. 1982)
Familiarity can be shown through direct observation in Delaware, study in Delaware, care of Delaware patients referred by Delaware physicians, reading of Delaware medical journals, consultation with Delaware physicians, or attending meetings with Delaware physicians. Loftus v. Hayden, 391 A.2d 749, 753 (Del. 1978). A physician who practices in another state respectively cannot be said to be familiar with the standard required of a physician in Delaware. Id. (holding that a physician who was licensed and practicing medicine in Virginia for five years was not familiar with that is required of a physician in Delaware).
Florida
In order for a physician to qualify as an expert witness in the state of Florida, the physician must comply with Florida Statute 766.102, Qualification of Expert Witnesses. The relevant portions of that statute state that the offered expert must be engaged in the same speciality that is in question, and has devoted professional time during the preceding three years to the active clinical practice of medicine, instruction of students in an accredited healthcare program, or perform research in a clinical program which is associated with an accredited medical school. Fla. Stat. Ann. § 766.102 (<2011>).
The state of Florida differentiates between physician experts who provide assistance in pretrial matters and physicians who are eligible to testify at trial. Fort Walton Beach Med. Ctr., Inc. v. Dingler, 697 So. 2d 575, 579 (Fla. Dist. Ct. App. 1997). An expert witness must be actively engaged in the practice of medicine in the five years which preceded the incident in question Id. Active Clinical Practice includes both the practice of, or consulting to, the same speciality which includes consultation, evaluation, or diagnosis of a medical condition. Gonzalez v. Tracy, 994 So. 2d 402, 407 (Fla. Dist. Ct. App. 2008)
Georgia
In the state of Georgia, a physician is deemed competent to testify as an expert witness if they are engaged in the same speciality that is in question and he has the relevant knowledge or experience in said practice area. Said knowledge and experience is obtained through the active practice of the speciality for at least three of the following five years. Such practice must have been performed with sufficient frequency to give the expert an “appropriate level of knowledge”. Anderson v. Mountain Mgmt. Servs., Inc., 414, 702 S.E.2d 462, 464, 306 Ga. App. 412, (Ga. App. Ct. 2010). A physician may bypass the active clinical requirement if they have been teaching in the medical profession, at an accredited program, for the past three out of five years. Either teaching or active clinical practice merely allows the judge to make a determination of whether or not the physician in question could form the requisite familiarity with the treatment in question to qualify as an expert witness. Spacht v. Troyer, 655 S.E.2d 656, 658, 288 Ga. App. 898, 900 (Ga. App. Ct. 2007). A doctor who works in a clinical setting and also as a professor of medicine has the ability to testify as an expert witness depending on the speciality in dispute. See Anderson v. Mountain Mgmt. Servs., Inc., 702 S.E.2d 462, 464, 306 Ga. App. 412, 414 (Ga. App. Ct. 2010) (holding that a physician who worked in a clinical setting and as a professor of medicine was not eligible to testify only because he was not familiar with the nursing speciality in question).
Hawaii
The state of Hawaii does not have an active clinical practice requirement for physicians who wish to testify as expert witnesses. However, the state of Hawaii will allow a physician to provide “expert” testimony without necessarily qualifying the physician as an expert. Barbee v. Queen’s Med. Ctr., 194 P.3d 1098, 1116, 119 Haw. 136, 154 (Haw. Ct. App. 2008) (holding that a physician and nurse were allowed to give their testimony without being qualified as experts). An expert witness in Hawaii must adhere to the standard that they have the “skill, knowledge, or experience” in the field to aid the jury in their determination. Larsen v. State Sav. & Loan Ass’n, 640 P.2d 286, 288, 64 Haw. 302, 304 (Haw. 1982).
Idaho
In the state of Idaho, a physician expert witness must be able to satisfy the following four criteria: “(a) that such opinion is actually held by the expert witness; (b) that the expert witness can testify to the opinion with a reasonable degree of medical certainty; (c) that the expert witness possesses professional knowledge and expertise; and (d) that the expert witness has actual knowledge of the applicable community standard of care to which his expert opinion testimony is addressed.” Dulaney v. St. Alphonsus Reg’l Med. Ctr., 45 P.3d 816, 820, 137 Idaho 160, 164 (Idaho 2002). There is no requirement of active clinical practice in the state of Idaho. However, physicians must prove that they are knowledgeable in the standard of care required by physicians in the state of Idaho. Id. (holding that a professor who formerly worked in clinical practice was disqualified from testifying only because he was not familiar with the standard of practice applicable to physicians in Boise).
Illinois
In the state of Illinois, a physician expert witness must be able to satisfy the following three criteria before testifying as an expert witness: “(1) the expert must be a licensed member of the school of medicine about which the expert proposes to express an opinion; (2) the expert must be familiar with the methods, procedures, and treatments ordinarily observed by other physicians; and (3) the trial court has the discretion to determine whether the physician is qualified and competent to state his opinion regarding the standard of care.” Alm v. Loyola Univ. Med. Ctr., 866 N.E.2d 1243, 1247, 373 Ill. App. 3d 1, 5 (Ill. 2007). The first two inquiries are a threshold determination, which still enables the judge to disqualify a proffered medical expert. Id. There is no requirement of active clinical practice in the state of Illinois.
Indiana
In the state of Indiana there are no specific qualifications a physician must meet to be an expert witness. Instead, an expert witness must have a general knowledge of the subject matter. It is not required that he be of the same speciality as the speciality which is disputed in the suit. The fact that a physician has never practiced in the same city does not disqualify the expert’s testimony, but instead lends itself to the weight of that testimony. There is no requirement of active clinical practice in Indiana. Snyder v. Cobb, 638 N.E.2d 442, 446 (Ind. Ct. App. 1994).
Iowa
A physician may testify in the state of Iowa under very few restrictions. Licensure is not a requirement to testify as a medical expert in the state of Iowa. See Ganrud v. Smith, 206 N.W.2d 311, 315 (Iowa 1973) (holding that a person who possessed a PhD was capable to testify about memory loss due to their knowledge of the functioning of the brain). However, it is a requirement that the physician, or proposed expert, have knowledge in the speciality that is in question. There exists no active clinical practice requirement in the state of Iowa. Id.
Kansas
The qualification that a physician expert witness must adhere to in the State of Kansas reads as follows, “no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.” Kan. Stat. Ann. § 60-3412 (<1986>). The Kansas State Legislature used the term clinical practice in a medical setting, and therefore the court has interpreted clinical practice as the definition it receives in the medical context. Endorf v. Bohlender, 995 P.2d 896, 901, 26 Kan. App. 2d 855, 862 (Kan. Ct. App. 2000). According to the Appeals Court of Kansas, active clinical patients means that a doctor must devote 50% of his time in the two years which preceded the incident to the “care of patients.” Id. Therefore, the a physician who consults on patient care, or spends time teaching in a clinic, or volunteering can meet the standard of active clinical practice if they are able to satisfy the timing requirement.
Kentucky
There is no requirement of active clinical practice in the state of Kentucky. A physician expert witness may be allowed to testify if he is able to meet a general standard and satisfy a Daubert hearing. However, this is a matter of discretion for the trial court. An expert’s qualifications are not required to be outstanding, but must be adequate. Boggess v. Com., 2001-SC-0263-MR, 2003 WL 1193266 (Ky. Jan. 23, 2003). There is no expressed qualification for an expert witness to testify in the state of Kentucky. Courts have expressly state that, “ there are no precise standards for qualification of an expert, it has long been that the decision as to qualifications of a witness as an expert rests within the discretion of the trial court. Any lack of specialized training goes only to the weight, not to the competency, of the evidence.” Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. Ct. App. 1992)
Louisiana
There is no requirement of active clinical practice in the state of Louisiana. To qualify as an expert witness in the state of Louisiana a physician must demonstrate he is familiar with: “ the degree of knowledge and skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances;and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.” Piazza v. Behrman Chiropractic Clinic, Inc., 601 So. 2d 1378, 1379-1380 (La. 1992). The physician must be familiar with the standard that is required of a physician who is actively practicing, but they are not required to engage in active clinical practice. Id. (holding that a chiropractor who had spent many years actively practicing in a clinical setting, who no longer works in a clinical setting was competent to testify as an expert witness). However, a physician that wishes to testify must be familiar with the standard of care which is required in Louisiana. Roberts v. Warren, 791 So. 2d 1278, 1280 (La. 2001).
Maine
There is no requirement of active clinical practice in the state of Maine. The qualification of an expert witness is a matter of discretion which rests with the trial court. There is no statute which governs the testimony of expert witnesses, but courts have ruled, “the extent of the expert’s knowledge of the subject matter and of the material data used in formulating his opinion … provided such facts are not based on mere speculation, goes to the weight rather than to the admissibility of his testimony.” State v. Tibbetts, 572 A.2d 142, 143 (Me. 1990).
Maryland
There is no requirement of active clinical practice in the state of Maryland. The state of Maryland does not require a physician to have performed a given surgery before giving expert testimony on the matter, assuming he is qualified as an expert. In order to qualify as an expert in the state of Maryland, a physician must, “demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant’s conduct to those particular standards, and not to the standards of the witness’ particular specialty if it differs from that of the defendant. It is the scope of the witness’ knowledge and not the artificial classification by title that should govern the threshold question of admissibility.” Radman v. Harold, 367 A.2d 472, 475, 279 Md. 167, 172 (Md. 1977).
Massachusetts
There is no requirement of active clinical practice in the state of Massachusetts. The state of Massachusetts requires a physician to meet the standard of, “ [having] ‘education, training, experience and familiarity’ with the subject matter of the testimony.” Palandjian v. Foster, 842 N.E.2d 916, 921, 446 Mass. 100, 106 (Mass. 2006). For purposes of this threshold, a physician’s training, certification, experience, and attendance at seminar trainings are all relevant. Id. This is a flexible inquiry, giving the trial court a large amount of discretion. Id.
Michigan
To qualify as an expert witness in Michigan, a medical professional must satisfy the requirements of spending the majority of their time involved in active clinical practice for the preceding year or be actively engaged in the instruction of students in an accredited health care or clinical program. Reeves v. Carson City Hosp., 736 N.W.2d 284, 286, 274 Mich. App. 622, 625 (Mich. Ct. App. 2007). A physician is able to satisfy the threshold of spending the majority of their time in active clinical practice if the practice area in question is the practice area in which the physician spends the majority of their time. See Kiefer v. Markley, 769 N.W.2d 271, 277, 283 Mich. App. 555, 565 (Mich. Ct. App. 2009) (holding that a hand surgeon who spent thirty percent of his time in this practice area was able to qualify as an expert witness, and was not required to spend fifty percent of his time in this practice area).
A witness is qualified to be a medical expert if she instructs, “students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed….” Mich. Comp. Laws § 600.2169 (<1999>). A physician may satisfy the requirement of active clinical practice by teaching in an accredited program. See Gay v. Select Specialty Hosp., 813 N.W.2d 354, 362, 295 Mich. App. 284, 299 (Mich. Ct. App. 2012) (holding that a nurse who spent fifty percent of her time teaching in an accredited nursing clinical program could satisfy the requirement of active clinical practice). A medical professional is permitted to spend time performing administrative activities without these activities necessarily detracting from their active clinical practice experience. Id. (holding that a legislative requirement that the professional must spend the majority of their time educating students did not equate to a requirement that said professional spend all of their time directly teaching said students). The administrative actions of the teaching medical professionals are not limited to actions directly related to class and can include a variety of administrative actions related to teaching. Id. (holding that any medical who educates others in their medical speciality must necessarily prepare for classes, learning new techniques, and participating in meetings).
Minnesota
In the state of Minnesota, a physician expert must be able to demonstrate that he has,“sufficient scientific knowledge” and “some practical experience” with the subject matter of the proposed testimony.” Koch v. Mork Clinic, P.A., 540 N.W.2d 526, 529 (Minn. Ct. App. 1995). A physician must have be knowledgeable about a surgery to give testimony on it. However, there is no requirement of active clinical practice in the state of Minnesota. Id. (holding that a physician who had not practiced medicine in the traditional sense since 1944 was still qualified to be an expert witness). Regardless, consultation with physicians in the state of Minnesota can constitute practical experience in some situations. Id. (holding that a physician who consulted on surgeries was competent to give expert testimony).
Mississippi
A physician may qualify as an expert witness in the state of Mississippi if he can demonstrate that he is, “qualified as an expert by knowledge, skill, experience, training, or education” and “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.” Hubbard v. Wansley, 954 So. 2d 951, 957 (Miss. 2007). A physician is not required to be of the same speciality as the physician’s conduct in question, however there is a requirement that the physician have knowledge of that speciality. There is no requirement of active clinical practice in the state of Mississippi. Id.
Missouri
There is no requirement of active clinical practice in the state of Missouri. A physician must only be able to satisfy the requirement of having, “knowledge, skill, experience, training, or education” so that his or her opinion will probably aid the trier of fact.” MacDonald v. Sheets, 867 S.W.2d 627, 630 (Mo. Ct. App. 1993). The experience of a medical expert lends itself to the weight of the evidence and is not a question of admissibility. Swope v. Printz, 468 S.W.2d 34, 40 (Mo.1971).
Montana
There is no requirement of active clinical practice in the state of Montana. There are three ways in which the state of Montana tests the credibility of an expert. They include: “1) whether the expert field is reliable, (2) whether the expert is qualified, and (3) whether the qualified expert reliably applied the reliable field to the facts.” Harris v. Hanson, 201 P.3d 151, 158 13, 349 Mont. 29, 38 (Mont. 2009). Fields of Board Certified, generally acceptable fields of medicine, such as pathology are determined to be reliable. Id. A physician is determined to be reliable if they have the requisite education and experience to be able to speak on the subject in question. Id.
Nebraska
In the state of Nebraska, there is no exact standard which the trial court must apply to determine whether or not an offered expert should be allowed. The relevant Nebraska statute provides, ““[i]f scientific, technical, or other specialized knowledge will assist the trier of fact … to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Hoffart v. Hodge, 609 N.W.2d 397, 406, 9 Neb. App. 161, 172 (Neb. Ct. App. 2000). The inquiry of whether an expert is qualified to be given that distinction is a question of experience and not of title. There is no requirement of active clinical practice in the state of Nebraska. However, an expert is qualified to testify if they can meet the threshold of, “posses[ing] special skill or knowledge respecting the subject matter involved so superior to that of persons in general as to make the expert’s formation of a judgment a fact of probative value. Id.
Nevada
There is no requirement of active clinical practice in the state of Nevada. An offered expert is able to testify, if he is first able to convince the trial court that, “(1) he or she [is] qualified in an area of “scientific, technical or other specialized knowledge” (the qualification requirement); (2) his or her specialized knowledge must “assist the trier of fact to understand the evidence or to determine a fact in issue” (the assistance requirement); and (3) his or her testimony must be limited “to matters within the scope of [his or her specialized] knowledge” (the limited scope requirement). Williams v. Eight Judicial Dist. Court of State, ex rel. Cnty. of Clark, 262 P.3d 360, 365 (Nev. 2011). There are four factors which the court considers to determine whether or not an expert witness is qualified under the first threshold. They include, “(1) formal schooling and academic degrees, (2) licensure, (3) employment experience, and (4) practical experience and specialized training.” Although clinical practice may assist the trial court under the fourth inquiry of prong one of the admissibility analysis, it is a required prerequisite to medical expert testimony in the state of Nevada. Id. Although a witness must not satisfy an active clinical practice requirement, he must have engaged in clinical patient work at some point in his career.
New Hampshire
There is no requirement of active clinical practice in the state of New Hampshire. Goudreault v. Kleeman, 965 A.2d 1040, 1048, 158 N.H. 236, 245 (N.H. 2009) (holding that a physician who had attained required experience, but no longer practices is still qualified to testify as an expert witness). An expert is qualified to testify in the state of New Hampshire based on their, “knowledge, skill, experience, training, or education.” Id. (holding that a physician who had not practiced in over twenty years or performed the procedure in question was still qualified to testify based on other trainings and professional experience).
New Jersey
To qualify as an expert witness in the state of New Jersey, a proffered expert must be a licensed medical professional and meet several additional criteria. If the speciality or sub specialty in question requires a board certification, the offered expert must be able to diagnose patients with the same condition or perform the same procedure which is in question. Additionally, during the year proceeding the claim the offered expert must devote the majority of his time to either the active clinical practice of the speciality or subspecialty or to the instruction of students in an accredited health program. Nicholas v. Mynster, 64 A.3d 536, 547, 213 N.J. 463, 481 (N.J. 2013).
New Mexico
The relevant statute that controls the qualification of medical experts provides that an expert is qualified to testify, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.” Lopez v. Reddy, 113 P.3d 377, 380, N.M. 554, 557 (N.M. Ct. App. 2005). There is no requirement of active clinical practice for medical experts. However, a proposed expert witness must have experience in the matter in which they wish to testify. An expert must renew their education or experience within a matter preceding the trial in order to testify. Id. (holding that a physician who no longer practices clinical work was not able to testify on a biopsy in question when his knowledge of biopsy procedures was thirty years old and this was not his specialty).
New York
There is no requirement of active clinical practice in the state of New York. To qualify as an expert witness, a physician must show that he gained experience from, “[l]ong observation, actual experience and/or study” Steinbuch v. Stern, 2 A.D.3d 709, 710, 770 N.Y.S.2d 106, 107 (N.Y. App. Div. 2003). Courts have declined to announce a rule in which the requisite skill and experience must be attained. In fact, a medical license is not even required to testify on matters of medical inquiry.
North Carolina
A determination of whether or not an expert witness had satisfied the requirement of active clinical practice is determined on a case by case basis, and influenced by factors such as: the total hours the physician has spent in clinical practice, the type of work being performed, and the regularity or intermittent nature of that work. The inquiry of active clinical practice is divided into a three tier inquiry. First, during the year preceding the testimony, the witness must have been engaged in the same area of practice as the physician in question. See Moore v. Proper, 726 S.E.2d 812, 818-19, 366 N.C. 25, 33 (N.C. 2012) (holding that a dentist who was engaged in a dental practice constituted the same practice as the dentist in question in a malpractice case). Second, the proffered expert must have been engaged in active clinical practice for the year preceding the testimony. Id. (holding that the active clinical inquiry is to take into account the totality of the physician’s circumstances). A physician must spend at least a somewhat substantial portion of his time interacting with patients. Id. (holding that a physician who spends one hour of time with patients per year cannot satisfy the threshold of active clinical practice). A physician who spends his professional time teaching a clinic at UCLA medical college can still satisfy the requirement of active clinical practice. See Edwards v. Wall, 542 S.E.2d 258, 263, 142 N.C. App. 111, 117 (N.C. Ct. App. 2001) (holding that seeing patients at a clinic three times per week satisfies the requirements of active clinical practice.)
Thirdly, whether the majority of a physician’s time was devoted to his active clinical practice. A physician’s time is calculated by how he spends his professional time. See Moore v. Proper, 726 S.E.2d 812 at 818-819 (holding that clinical practice, administrative duties, continuing education, and other professional duties of a physician are relevant to the determination of time spent in active clinical practice). A physician who is employed as a professor of pediatrics at UCLA Medical School devotes the majority of his time to active clinical practice. See Edwards v. Wall, 542 S.E.2d at 264 (holding that said physician interacts with patients in a clinical way, while spending the remainder of his time in a teaching and administrative capacity has devoted the majority of his time to active clinical practice).
North Dakota
There is no requirement of active clinical practice in the state of North Dakota. An expert is not required to be licensed in any particular field, but can draw his qualifications from, “knowledge, skill, experience, training, or education.” See Anderson v. A.P.I. Co. of Minnesota, 559 N.W.2d 204, 206 (N.D. 1996) (holding that a witness who was not a medical doctor was competent to testify on the medical dangers of asbestos). A witness may acquire his qualifications from reading or practice alone depending on the speciality or testimony the expert tends to give. Id.
Ohio
The requirement of active clinical practice as it pertains to expert witness physicians in a malpractice trial is subjective. However, it is guided by a principle that requires that a physician expert witness spend at least one-half of his professional time satisfying the threshold of active clinical practice. This evidentiary rule precludes a physician expert witness spending the majority of his time testifying against other physicians when he lacks the experiential judgement to evaluate the actions of others. However, it includes the work of a physician- specialist , “whose work is so related or adjunctive to patient care as to be necessarily included in that definition.” See Aldridge v. Garner, 825 N.E.2d 201, 205, 159 Ohio App. 3d 688, 693 (Ohio Ct. App. 2005).
The question of whether a physician is able to be an expert witness is not a question of qualification alone. Smith v. Sass, Friedman & Associates, Inc., 2004-Ohio-494, 494 (holding that a previously qualified physician can be incompetent to be an expert witness when they cease the clinical practice of medicine for several years). Professional time is calculated as the time that the physician spends in his field of licensure. See Wise v. Doctors Hosp. N., 455 N.E.2d 1032, 1037, 7 Ohio App. 3d 331, 334 (Ohio Ct. App. 1982) (holding that a physician’s professional time is calculated by time spent working in the field of medicine). Furthermore, it is irrelevant should the physician in question spend forty hours a week in pursuit of another, non-medical goal. Id. (holding that it was irrelevant when physician spent forty hours a week working as the county commissioner in regards to their expert witness testimony.) It is possible for a physician to be employed for four hours a week, spend three of them in active clinical practice, and qualify as an expert medical witness. Id.
A physician specialist’s work is defined as being so related to patient care that it satisfies the active clinical practice requirement is if he “assists, directs, or advises” an attending physician about the treatment of ill patients. See Williams v. Reynolds Rd. Surgical Ctr., LTD, 2004-Ohio-1645, 1645 (holding that a physician who consults about neck and spine surgeries, from the operating room, but no longer performs such surgeries can satisfy the inquiry of active clinical practice). A physician who has previously worked in a clinical position, but has since become a consultant may be able to satisfy the inquiry of active clinical practice. Id. (Holding that a consultant who spends the majority of his time physically present, and giving advice, in an operating room can satisfy the requirements of active clinical practice).
If a physician is employed by an insurance company and spent over eighty percent of his professional career without patient contact, he is unable to satisfy the threshold of evidentiary rule of active clinical practice. Aldridge v. Garner, 825 N.E.2d at 205. If the physician was previously an expert in his field, but has since become a professor, they may be disqualified from the ability to become an expert witness. See Smith v. Sass, Friedman & Associates, Inc., 2004-Ohio-494 (holding that a previously renowned cardiologist was unable to satisfy the active clinical practice threshold in teaching only six to eight percent of his time and engaging in the testing of estrogen replacement drugs). A physician is able to take a brief sabbatical from clinical work, and still may be able to satisfy the inquiry of active clinical practice. See Celmer v. Rodgers, 2005-Ohio-7054, 7054 (holding that a radiologist who spent years practicing clinical work and then took a seven month sabbatical where he engaged in related fields of study could satisfy the inquiry of active clinical practice).
Oklahoma
There is no requirement of active clinical practice in the state of Oklahoma. A physician’s expert testimony is governed by Oklahoma Statute section 2702 which provides, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise, if: 1. The testimony is based upon sufficient facts or data; 2. The testimony is the product of reliable principles and methods; and 3. The witness has applied the principles and methods reliably to the facts of the case.” Okla. Stat. Ann. tit. 12, § 2702 (West <2013>). Section 2702 of the Oklahoma Statutes has been held unconstitutional for violating the “single-subject rule.” However, this only provides that Statute Title 12, Section 2702 (and others) encompass more than one subject, not that the standard established by section 2702 is inapplicable. Douglas v. Cox Ret. Properties, Inc., 302 P.3d 789, 792 (Ok. 2013).
The courts in Oklahoma do not require a person to possess a medical degree. Instead they require, along with compliance with section 2702 that a person who wishes to testify as an expert have, “knowledge on the subject under examination ‘not acquired by ordinary persons’ Turner v. Dewbre, 530 P.2d 144, 145 (Okla. Civ. App. 1974). An expert is therefore not required to have formal training or education at all. However, a medical doctor is presumed competent to testify on issues of medical causation, as is a chiropractor. Id.
Oregon
There is no requirement of active clinical practice in the state or Oregon. The testimony of expert witnesses in the state of Oregon is governed by Rule 702 which provides, “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”
Or. Rev. Stat. Ann. § 40.410 (West <1981>). The proposed medical expert must have knowledge of the standard of care that would be required in a “similar community.” An offered expert’s testimony who is licensed in a different locality does not mean the evidence is inadmissible, but goes to the weight of the evidence. Mosley v. Owens, 816 P.2d 1198, 1201, 108 Or. App. 685, 690 (Or. Ct. App. 1991).
Pennsylvania
The testimony of physician expert witnesses is regulated by Pennsylvania statute section 1303.512, which provides that a physician expert is qualified to testify if he, “possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.” Expert Qualifications 40 Pa. Stat. Ann. § 1303.512 (West <2002>).
Additionally, he must possess a physician’s license in any state which is unrestricted and be engaged in active clinical practice or teaching, or have previously retired from teaching or active clinical practice within the past five years. A physician actively engages in clinical practice when they can fulfill a requirement of spending an average of twenty hours a week engaged in the treatment of patients. Clinical practice requires a higher degree of patient contact than mere physical examination. See Verizon Pennsylvania Inc. v. W.C.A.B. (Ketterer), 87 A.3d 942, 949 (Pa. Commw. Ct. 2014) (holding that a physician could not satisfy the clinical practice requirement when she examined pilots for qualifications without referring them for treatment or functioning as their general practitioner). The requirement that a physician engage in teaching requires that the physician engage in the instruction of students in a medical program, but the physician may be able to combine this with clinical work. See Vicari v. Spiegel, 936 A.2d 503, 514, 2007 PA Super 316 (Pa. Super. Ct. 2007) (holding that a physician who held a seat on the Board of Beth Israel medical center, engaged in clinical practice, and instructed students was qualified to testify as an expert witness).
Rhode Island
There is no requirement of active clinical practice in the state of Rhode Island. A proposed physician expert must be able to demonstrate to the court that he has, “knowledge acquired through education or experience in the field of alleged malpractice.” (holding that a physician may qualify to testify as an expert witness on either education or experience). When a particular speciality is in question, the physician must demonstrate more than a “casual” familiarity with the subject matter. However, it is not required that a physician practice the same sub-specialty which is in question. Debar v. Women & Infants Hosp., 762 A.2d 1182, 1188 (R.I. 2000).
South Carolina
There is no requirement of active clinical practice in the state of South Carolina. To qualify as an expert witness in South Carolina, the physician must demonstrate to the trial court that, “1) the expert’s testimony will assist the trier of fact, (2) the expert possesses the requisite knowledge, skill, experience, training, or education, and (3) and the expert’s testimony is reliable. S.C. Code Ann. § 702 (<1976>). A physician is not required to be a licensed specialist to testify on a matter in which a sub-specialty is in question. See Creed v. City of Columbia, 426 S.E.2d 785, 786, 310 S.C. 342, 345 (S.C. 1993) (holding that a physician expert witness who is of a different specialty than is in question goes to the weight of the evidence and not the question of admissibility). Even though there is no active clinical practice in the state of South Carolina, a physician must be willing to demonstrate familiarity with the standard of care required in the situation in question. See Melton v. Medtronic, Inc., 698 S.E.2d 886, 893, 389 S.C. 641, 655 (S.C. Ct. App. 2010) (holding that a physician who testified to their own personal standard of care was insufficient as an expert witness).
South Dakota
There is no requirement of active clinical practice in the state of South Dakota. The qualification of medical experts is governed by a statute which provides that, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise”
Maroney v. Aman, 565 N.W.2d 70, 78 (S.D. 1997). Courts in South Dakota have previously ruled that the proper way to determine the admissibility of expert testimony is to compare the physician’s “knowledge, skill, experience, or education” and the testimony the witness intends to deliver. Id. at 79 Whether or not a person can qualify as an expert witness is never a question of the degree they hold, but the degree is a factor in the analysis. See Klutman v. Sioux Falls Storm, 769 N.W.2d 440, 449 (S.D. 2009) (holding that having a PhD was not substitute for a medical degree and would not allow a witness to testify to a degree of medical certainty).
Tennessee
To qualify as an expert witness in the state of Tennessee, a physician must demonstrate that he is, “(1) “licensed to practice in the state or a contiguous bordering state,” (2) “a profession or specialty which would make the person’s expert testimony relevant to the issues in the case,” and (3) must have “had practiced this profession or specialty in one … of these states during the year preceding the date that the alleged injury or wrongful act occurred.” See Shipley v. Williams, 350 S.W.3d 527, 550 (Tenn. 2011). A physician must have practiced medicine with direct patient contact to satisfy the third prong of the analysis. See Stanfield v. Neblett, 339 S.W.3d 22, 32 (Tenn. Ct. App. 2010) (holding that a medical director and surgeon who interacts with patients on a daily basis can satisfy the third prong of the analysis). A physician is not required to devote a certain percentage of his time to direct work with patients, and therefore it may be possible for a physician to volunteer his clinical time to work with patients to satisfy the third prong of the analysis. Totty v. Thompson, 121 S.W.3d 676, 678 (Tenn. Ct. App. 2003).
Texas
To qualify as an expert witness in the state of Texas a physician must show that he ,“(1) is practicing medicine at the time the testimony is given or was practicing medicine at the time the claim arose; (2) has knowledge of accepted standards of medical care for the diagnosis, care, or treatment of the illness, injury, or condition involved in the claim; and (3) is qualified on the basis of training or experience to offer an expert opinion regarding those accepted standards of medical care.” Pediatrix Med. Grp., Inc. v. Robinson, 352 S.W.3d 879, 883 (Tex. Ct. App. 2011). Although the physician is not required to be practicing medicine in the same specialty as the physician in question, he is required to render medical care which is relevant to the claim. Kelly v. Rendon, 255 S.W.3d 665, 674 (Tex. Ct. App. 2008). There is no minimum requirement of hours that a physician must meet in order to show that he is practicing medicine at the time of the claim. Id. (holding that a physician who is a professor and is head of a hospital department is qualified to testify as an expert witness). The court has insinuated that perhaps teaching medical procedures is also included in the practice of medicine. Larson v. Downing, 197 S.W.3d 303, 305 (Tex. 2006) (holding that a physician who had not practiced in eleven years, and never taught the procedure in question, was too far removed from medical practice to qualify as an expert witness).
Utah
There is no requirement of active clinical practice in the state of Utah. To demonstrate that a physician is qualified to testify as an expert, he must demonstrate his qualifications by, “knowledge, skill, experience, training, or education.” Evans ex rel. Evans v. Langston, 166 P.3d 621, 623 (Utah Ct. App. 2004). The most critical piece of the inquiry of whether or not a physician is qualified to testify as an expert witness is whether the physician has the requisite knowledge to assist the jury in their determination. Id. A physician is competent to testify in a matter involving a different specialty, when they can present a basis that a standard of care is common to both his specialty and the one in question. A physician who has a distinguished background, but may lack certain qualifications goes to the weight of their evidence and not the admissibility. See Swan v. Lamb, 584 P.2d 814, 815 (Utah 1978) (holding that a California neurosurgeon was qualified to testify in a Utah proceeding without a national board certification).
Vermont
There is no requirement of active clinical practice in the state of Vermont. To qualify as an expert witness, the physician must demonstrate that, “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Estate of George v. Vermont League of Cities & Towns, 993 A.2d 367, 372, 187 Vt. 229, 239 (Vt. 2010) (holding that physicians who wished to introduce evidence of an unsafe work environment which may have exposed victims to lymphoma were well qualified). A physician should also demonstrate that, “ [their] skill, knowledge, and experience above and beyond that of the average juror are each an adequate basis upon which to qualify an expert. State v. White, 451 A.2d 1137, 1139 (Vt. 1982) (holding that a physician would unquestionably be qualified to testify about alcohol absorption rates).
Virginia
A physician is presumed competent to testify as a an expert witness in Virginia if he is a licensed physician in the Commonwealth of Virginia or is licensed in another state, but would meet the qualifications of the Commonwealth of Virginia’s licensing authority. See Jackson v. Qureshi, 671 S.E.2d 163, 167 (Va. 2009) (holding that a physician who is licensed in New Hampshire and teaches at Dartmouth College can satisfy this threshold). A physician is not required to have an identical speciality to the matter in question in order to qualify as an expert witness. See Sami v. Varn, 535 S.E.2d 172, 173 (Va. 2000) (holding that a gynecologist was able to qualify as an expert witness in a matter involving women’s reproductive health and emergency treatment).
In Virginia, the state authority requires both a knowledge and an active clinical practice requirement for physicians. Knowledge is satisfied if a physician can show that the field in which the physician being sued for malpractice in is “qualified and certified” is the same as the proposed expert witness. See Jackson v. Qureshi, 671 S.E.2d at 167 (holding that a physician met this threshold of inquiry when his speciality in pediatric infectious diseases was “qualified and certified” as similar to the qualifications of pediatric emergency care when the care of a pediatric patient with an infectious disease was before the court). The active clinical practice requirement cannot be satisfied by a minimum threshold of hours, but the physician must satisfy the active clinical practice requirement within the past year. Id. (holding that the legislature did not set forth minimum hours to constitute active clinical practice and the court declines to impose them)
A physician was unable to meet the threshold of active clinical practice through pure consulting and teaching work alone. See Hinkley v. Koehler, 606 S.E.2d 803, 805-806 (Va. 2005) (holding that some degree of direct patient contact is necessary to satisfy the threshold of active clinical practice). In order to satisfy the threshold of active clinical practice, a physician must have some evidence of patient contact or work with patients. See Lloyd v. Kime, 654 S.E.2d 563, 570 (Va. 2008) (holding that a physician who had not worked in a hospital, had any patient contact, or performed any surgeries in the past ten years was unable to satisfy the inquiry of active clinical practice). However, a professor of clinical programs at a college who spends time directly interacting with patients can satisfy the threshold of active clinical practice. See Jackson v. Qureshi, 671 S.E.2d at 167 (holding that a Dartmouth Professor who spent twenty- thirty percent of his time directly working with patients could satisfy the threshold of active clinical practice).
Washington
There is no requirement of active clinical practice in the state of Washington. A physician who has earned a medical degree is qualified to testify about any medical question with which he has the requisite experience to show he is familiar with the issue or procedure in question. Hill v. Sacred Heart Med. Ctr., 177 P.3d 1152, 1157, 143 Wash. App. 438, 447 (Wash. Ct. App. 2008). There is a two-fold inquiry under Washington Law where a physician who wishes to testify as an expert must first show that 1) he has attained a medical license, and 2) that he has sufficient experience to demonstrate familiarity with the procedure in question. Id. (holding that a physician possessed a medical license and was familiar with the procedure was competent to testify). A physician is not qualified to testify in the state of Washington, unless they are familiar with the standard of care which is required in Washington. See Winkler v. Giddings, 190 P.3d 117, 119, 146 Wash. App. 387, 391 (Wash. Ct. App. 2008) (holding that a physician from Pennsylvania, who made an educated guess about what the standard of care requirement is in the state of Washington was not competent to testify as an expert witness).
West Virginia
West Virginia recently ruled its statute which governs the qualification of expert witnesses to be unconstitutional and preempted. The paramount authority for determining if an expert witness is qualified to testify is the West Virginia Rule of Evidence 702, which provides, “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” 2014 WEST VIRGINIA COURT ORDER 0003 (C.O. 0003). However, courts still rely on five qualifications from the West Virginia Code section 507 which governs the qualification of expert witnesses. They included, “(1) The opinion is actually held by the expert witness; (2) the opinion can be testified to with reasonable medical probability; (3) the expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (4) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided, That the expert witness’ license has not been revoked or suspended in the past year in any state; and (5) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient.” Walker v. Sharma, 655 S.E.2d 775, 779 221 W. Va. 559, 563 (W. Va. 2007) (holding that a physician who spent 60% of his time actively engaged in the practice of medicine was qualified to testify as an expert). There is very little case law on what constitutes active clinical practice, as West Virginia encompasses some of the most restrictive qualifications on the testimony of expert witnesses.
Wisconsin
There is no requirement of active clinical practice in the state of Wisconsin. To qualify as an expert witness in the state of Wisconsin a physician must demonstrate, the he possesses the requisite, “knowledge, skill, experience, training, or education, [and therefore] may testify thereto in the form of an opinion or otherwise.” Martindale v. Ripp, 629 N.W.2d 698, 710, 246 Wis. 2d 67, 96 (Wis. 2001). The threshold question of whether or not an expert is qualified to testify is whether or not his testimony will “assist the trier of fact.” Id.
Wyoming
There is no requirement of active clinical practice in the state of Wyoming. A physician must demonstrate that he is qualified as an expert witness by possessing the requisite, “knowledge, skill, experience, training, or education.” Stallman v. State ex rel. Wyoming Workers’ Safety & Comp. Div., 297 P.3d 82, 94 (Wyo. 2013). A physician must be qualified in every area in which he wishes to introduce expert testimony. Id. A medical expert in the state of Wyoming must be able to establish his familiarity with the standard of care required in the state of Wyoming, and that the physician’s actions in question deviated from that required standard. Weber v. McCoy, 950 P.2d 548, 551 (Wyo. 1997).