The '20 percent rule' - an arbitrary standard in malpractice suits

Our view: Malpractice lawsuits deserve to be judged on merit and not be constrained by an arbitrary standard imposed on certain expert witnesses

Expert witnesses are a crucial part of legal disputes. How do you know if a collapsed bridge was built properly without a civil engineer to analyze it? How could you be certain a claim of physical disability was justified without a medical review? Or that a scofflaw financial company was ripping off its clients without the services of a skilled auditor? A judge and jury benefits from hearing from individuals with expertise before they render judgment in such cases.

But how can they be certain that the civil engineer knew his business? Or that the doctor had the necessary experience? Or that the forensic accountant was as smart as the plaintiff’s lawyer claims? Well, there’s a simple answer to that. Defense lawyers get their chance to cross-examine witnesses and, if necessary, impeach their expertise: Isn’t it true you aren’t a licensed engineer? Didn’t you just graduate from medical school last Thursday? You didn’t even look at all the receipts, did you? It is a time-honored tradition that covers a myriad of professions and circumstances.


But oddly, Maryland law imposes a standard, an arbitrary one, on experts testifying in medical malpractice cases. Under current law, an expert in a malpractice case making a judgment on “standard of care” (the reasonable and competent level of health care provided to patients under certain circumstances) can’t devote more than 20 percent of their professional activities to courtroom testimony (or anything related to that testimony like reading a patient’s medical records). In other words, you can’t call as a witness on standard of care anyone who spends more than one day out of five working as an expert witness.

There’s certainly a reasonable logic behind Maryland’s 20 percent rule. It’s to discourage so-called “hired guns,” doctors who are nothing more than hit men and women for plaintiff’s lawyers and who travel the country bad-mouthing doctors without actually seeing patients themselves. What kind of physician can be an expert on, say, the standard of care for someone complaining of chest pains if they have never actually seen someone with chest pains (or haven’t in years)? The standard of care is always evolving, and someone who never sees patients is likely too detached to render a knowledgeable opinion.


But wait, what about the doctor who spends three days a week seeing patients and two as an expert? Why is that person disqualified? That makes no sense. And that’s particularly true when one considers that testifying in a court case, while often lucrative (experts could be paid $400 an hour or more) is not as easy as it sounds. Communicating effectively to a judge and jury is a learned skill developed over time. A doctor could easily know the standard of care inside and out but be terrible at explaining it to the layman. That’s probably why there’s no 20 percent rule on any other field, including other aspects of medical care.

That could change. The Maryland General Assembly is considering legislation, SB 30, to repeal the 20 percent rule. Both chambers have passed versions of the legislation, but they would have to reconcile some differences for it to go to Gov. Larry Hogan’s desk. MedChi, the state’s primary physician association, is against the bill while plaintiff’s attorneys are for it, arguing that courtroom battles over whether an expert is at 20 percent or 21 percent or 22 percent are a costly waste of time that accomplish exactly nothing. We think they are correct.

That’s not to suggest we’d like to see a sudden influx of medical hired guns in Maryland, it’s more that we don’t believe that will happen. Juries are perfectly capable of recognizing the difference between a practicing doctor lending his or her expertise to a malpractice claim and the testimony of someone who makes a living putting the squeeze on medical providers and their insurance underwriters. After all, they are already being asked to evaluate many other aspects of an expert’s ability. Why are the number of days that individuals have spent in court, or preparing for court, of such overriding importance?

MedChi will doubtless complain that this would encourage frivolous lawsuits. We seriously doubt that. But if MedChi wants to reduce malpractice costs — and we’re all for that — there are more productive avenues like encouraging arbitration to resolve disputes or taking stronger disciplinary action against bad doctors. Neither would benefit plaintiff’s lawyers, and we’d support both in a heartbeat. Arbitrary standards, on the other hand, don’t accomplish much but make doctors look like they get preferred treatment over malpractice victims.