Fusco v. Shannon

HOTTEN, J. Following the death of Anthony Fusco, Sr. (“Mr. Fusco”), appellants, Mafalda Fusco and the surviving children, filed a complaint in the Circuit Court for Prince George’s County against appellees, Kevin Shannon, M.D. (“Dr. Shannon”) and his practice, Hematology-Oncology Consultants, P.A. (“H.O. Consultants”). Appellants alleged that Dr. Shannon failed to obtain Mr. Fusco’s informed consent regarding the risks associated with the administered drug, Amifostine.

Appellants further contended that the direct and proximate result of appellees’ failure caused Mr. Fusco to sustain injuries and ultimately his death. During discovery, appellants identified James Trovato, Pharm.D. (“Dr. Trovato”), a pharmacist, but not a medical doctor, as an expert witness to support their lack of informed consent claim. 1 In addition to their motion for summary judgment, appellees filed a motion in limine to exclude Dr. Trovato’s de bene esse deposition, alleging that appellants failed to present an expert witness who could testify that appellees breached their duty of obtaining Mr. Fusco’s informed consent. In opposition, appellants argued that appellees failed to demonstrate that Dr. Trovato was not qualified to testify as an expert witness.

Following a hearing on December 21, 2010, the trial ⁴⁰⁵ court denied the motion for summary judgment, but granted the motion in limine. Pursuant to the court’s order, appellants filed a proffer of Dr. Trovato’s anticipated trial testimony. During the hearing on January 7, 2011, the court disallowed Dr. Trovato’s testimony in its entirety. Appellees renewed their motion for summary judgment, but it was denied.

Following the trial on January 10 through January 19, 2011, the jury returned a verdict for appellees. Appellants noted an appeal on February 15, 2011, and presented two questions for our review: 1. Did the trial court improperly grant the appellees’ motion to exclude the testimony of James Trovato, Pharm.D. on the basis that he was not able to testify as to the five elements of an informed consent case as outlined in Sard v. Hardy ? 2. Did the trial court’s consistent misapplication and misinterpretation of the holding in University of Maryland Medical System Corporation v. Waldt lead to the repeated erroneous denial of appellants’ admission of evidence relating to the approved uses of Amifostine?

For the reasons that follow, we reverse the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On June 26, 2001, Mr. Fusco, eighty-two years of age at the time, was diagnosed with prostate cancer. On December 27, 2002, Walid Mufarrij, M.D. (“Dr. Mufarrij”), a urologist, examined Mr. Fusco and determined that the cancer was “low-risk,” so Mr. Fusco selected “watchful waiting” as his treatment plan.

On February 21, 2003, Dr. Mufarrij and Mr. Fusco discussed additional options, to which Mr. Fusco elected a combination of radiotherapy and hormone treatment. Dr. Mufarrij conducted the hormone regimen, but referred Mr. Fusco to Lawrence Shombert, M.D. (“Dr. Shombert”) for radiotherapy. ⁴⁰⁶ On March 6, 2003, Mr. Fusco consulted Dr. Shombert, who explained the nature of radiation, including the need for a commonly used radiation protectant, which would possibly eliminate inflammation of the urinary bladder and rectum. Dr. Shombert referred Mr. Fusco to Dr. Shannon, and on March 12, 2003, they discussed a radiation protectant regimen.

While testifying at trial, Dr. Shannon insisted that he discussed the following with Mr. Fusco: Very generally, with respect just to the [AJmifostine, we discussed the potential benefits which, again, is to, is a cytoprotective agent to reduce the risk of radiation induced injury to the organs of the, the bladder and the rectum. The potential side effects, the significant side effects, which, very briefly, can affect, [Ajmifostine can affect blood pressure. It can affect the GI system in the way of causing nausea, and it can cause a local or slightly more extensive skin reaction and the alternatives, which, unfortunately, are none. We still don’t have any alternatives to [Ajmifostine, and, and I explain[ed] a little bit about how our office works.

How the, the dose would be given which is to say subcutaneously, an injection in the arm, rather than an intravenous formation, and other general things to come well hydrated, that it would have to be given on a daily basis prior to radiation. So, the mechanics of administration I spoke of, and with respect to [Ajmifostine, that, in general, was, was it. Between April 15, 2003 and May 15, 2003, Mr. Fusco underwent approximately twenty-three injections of 500 milligrams of Amifostine. On May 16, 2003, Mr. Fusco was administered an Amifostine shot, and Dr. Shannon recorded that Mr. Fusco denied “headaches, visual disturbances, sores in the mouth, difficulty swallowing____No nausea, vomiting, diarrhea and no dysuria.

He has no known drug allergies.... No evidence of rash or inflammation.” The next day, on May 17, 2003, Mr. Fusco was hospitalized at Doctors Community Hospital in Lanham, Maryland for symptoms of acute onset of systemic rash and lip swelling. Dr. Shannon was notified, and theorized that Mr. Fusco had a ⁴⁰⁷ reaction to the Amifostine. The reaction resulted in Stevens-Johnson Syndrome. 2 On May 20, 2003, Mr. Fusco was transferred to Johns Hopkins Burn Center in Baltimore, Maryland for further treatment.

He was informed that his condition advanced to Toxic Epidermal Necrolysis Syndrome. 3 On August 5, 2003, Mr. Fusco was admitted into Magnolia Center Nursing Home in Lanham, Maryland for physical and occupational therapy and wound care. On October 6, 2003, he was re-admitted to Doctors Community Hospital due to an onset of acute pneumonia and fever. He was described as being at “a high risk for aspiration.” 4 As a result, the hospital performed a tube insertion procedure. Unfortunately, the hospital’s treatments proved to be unsuccessful, and Mr. Fusco died on December 4, 2003, from a stroke.

No autopsy was performed, but the medical examiner listed arteriosclerotic cardiovascular disease with a contributing factor of Toxic Epidermal Necrolysis Syndrome as the cause of death. On April 23, 2007, appellants filed wrongful death and survival actions against Dr. Mufarrij, Dr. Shombert, Dr. Shannon, and H.O. Consultants. On December 21, 2010, the court granted motions for summary judgment relating to Drs. Mufarrij and Shombert, finding that “the duty to obtain informed consent only arose to the physician who provided the treat ⁴⁰⁸ ment.” Hence, the claims against Drs.

Mufarrij and Shombert were dismissed, and they are not parties to this appeal. The event giving rise to this appeal occurred when appellees filed a joint motion in limine to preclude Dr. Trovato’s de bene esse deposition. In pertinent part, Dr. Trovato opined that Amifostine was inappropriately used or should not have been used for Mr. Fusco, since he was undergoing radiation therapy for prostate cancer. Appellees argued that Dr. Trovato’s testimony should have been excluded because (1) he was not a physician, and thereby not qualified to render opinions concerning a physician’s advisement to obtain informed consent and (2) his testimony offered criticisms sounding in standard of care.

On December 16, 2010, 5 appellants filed a response to appellees’ joint motion in limine, asserting that (1) case law did not require that Dr. Trovato be a medical doctor, and (2) his testimony regarding the use of Amifostine established the drug’s risks, benefits, and alternatives. On December 21, 2010, the court granted appellees’ motion in limine, finding that (1) Dr. Trovato did not testify regarding the standard of care for an expert in an informed consent case; (2) his testimony was more aligned with negligence than informed consent; (3) his testimony did not incorporate the Sard v. Hardy factors; and (4) he was a pharmacist, not a physician. After the ruling, the court offered appellants the opportunity to file a proffer of Dr. Trovato’s anticipated trial testimony, which was submitted on December 27, 2010. On January 7, 2011, during the second motions hearing, despite Dr. Trovato’s extensive qualifications, the court ruled that he would not be permitted to testify because (1) he was a pharmacist and “[did] not have the ability to give the full demarcation of what [was] involved in informed consentí,]” and (2) his testimony would “confuse and disenchant the jury in their ability to determine what the doctrine of informed ⁴⁰⁹ consent” denoted because the proffer did not give a completeness to the overall treatment plan.

Appellees then renewed their motion for summary judgment, which was denied. On January 10 through January 19, 2011, following a jury trial, a verdict was returned in favor of appellees. 6 Appellants filed this timely appeal, to which appellees filed a cross-appeal that we need not resolve. STANDARD OF REVIEW Under Md. Rule 5-702, supra, “the admissibility of expert testimony is within the sound discretion of the trial judge and will not be disturbed on appeal unless clearly erroneous.” In re Adoption/Guardianship of Tatianna B., 417 Md. 259, 263 , 9 A.3d 502 (2010) (citing Blackwell v. Wyeth, 408 Md. 575, 618 , 971 A.2d 235 (2009)) (quoting Wilson v. State, 370 Md. 191, 200 , 803 A.2d 1034 (2002)). We therefore review a ruling to admit expert witnesses under the abuse of discretion standard.

Morton v. State, 200 Md.App. 529, 545 , 28 A.3d 98 (2011) (citing Oken v. State, 327 Md. 628, 659 , 612 A.2d 258 (1992)). ⁴¹⁰ Because admittance or exclusion of expert testimony is a matter substantially within the trial court’s discretion, the court’s ruling will seldom constitute a reason for reversal. Gutierrez v. State, 423 Md. 476, 486 , 32 A.3d 2 (2011) (citing Raithel v. State, 280 Md. 291, 301 , 372 A.2d 1069 (1977)). Moreover, the court’s exclusion of evidence will not be reversed in the absence of a clear abuse of discretion. Thomas v. State, 397 Md. 557, 579 , 919 A.2d 49 (2007) (citing Kelly v. State, 392 Md. 511, 530 , 898 A.2d 419 (2006); Merzbacher v. State, 346 Md. 391, 404-05 , 697 A.2d 432 (1997)). “‘An appellate court will only reverse upon finding that the trial judge’s determination was both manifestly wrong and substantially injurious[,]’ ” Wantz v. Afzal, 197 Md.App. 675, 682 , 14 A.3d 1244 cert. denied 420 Md. 463 , 23 A.3d 895 (2011) (citing Brown v. Contemporary OB/GYN Assocs., 143 Md.App. 199, 252 , 794 A.2d 669 (2002)) (additional citation omitted), or “may be reversed if founded on an error of law or some serious mistake, or if the trial court has clearly abused its discretion.” Gutierrez, 423 Md. at 486 , 32 A.3d 2 (citing Raithel, 280 Md. at 301 , 372 A.2d 1069 ).

DISCUSSION “The doctrine of informed consent ... imposes on a physician, before he or [she] subjects his [or her] patient to medical treatment, the duty to explain the procedure to the patient and to warn of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment.” Schwartz v. Johnson, 206 Md. App. 458, 484 , 49 A.3d 359 (2012) (quoting Sard v. Hardy, 281 Md. 432, 440 , 379 A.2d 1014 (1977)) [hereinafter “Sard ”]. The duty to explain the procedure encompasses the following Sard factors: [T]he nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, the nature of available alternatives to treatment and whether or not disclosure would be detrimental to a patient. ⁴¹¹ Sard, 281 Md. at 448 , 379 A.2d 1014 (citing Getchell v. Mansfield, 260 Or. 174 , 489 P.2d 953, 956 (1971); Small v. Gifford Memorial Hosp., 133 Vt. 552 , 349 A.2d 703, 705 (1975)). “A material risk is one which a physician knows or ought to know would be significant to a reasonable person in the patient’s position in deciding whether or not to submit to a particular medical treatment or procedure.” Id. at 444, 379 A.2d 1014 (citing Miller v. Kennedy, 11 Wash.App. 272 , 522 P.2d 852, 863 (1974)) (“[W]hen a reasonable person in the patient’s position probably would attach significance to the specific risk in deciding on treatment, the risk is material and must be disclosed.”). See also Getchell, 489 P.2d at 956 ; Wilkinson v. Vesey, 110 R.I. 606 , 295 A.2d 676, 689 (1972) (additional citation omitted). Similar to a presumption of due care, there is a presumption of proper consent, which arises from “ ‘the natural instinct of human beings to guard against danger....’” See Eagle-Picher Indus. v. Balbos, 326 Md. 179, 228 , 604 A.2d 445 (1992) (quoting Tucker v. State, 89 Md. 471, 480 , 43 A. 778 (1899)).

For a complainant to establish a prima facie case of failure to obtain informed consent, the complainant must illustrate (1) an existence of a material risk, which the physician must explain to the patient; (2) the failure of the physician to inform the patient of the material risk; (3) the physician knew or ought to have known of the material risk; and (4) a causal connection between the lack of informed consent and the harm. See generally Schwartz, 206 Md.App. at 484 , 49 A.3d 359 ; Sard, 281 Md. at 444 , 379 A.2d 1014 (citing Miller, 522 P.2d at 863 ); Goldberg, et al. v. Boone, 396 Md. 94, 123 , 912 A.2d 698 (2006) (citing Sard, 281 Md. at 448 , 379 A.2d 1014 ). Complainants usually offer expert testimony to establish their prima facie case. An expert witness is required to ascertain the material risks and other significant factors concerning the medical therapy.

Univ. of Maryland Med. Sys. Corp. v. Waldt, 411 Md. 207, 232 , 983 A.2d 112 (2009) [herein ⁴¹² after “Waldt II ”]. Md. Rule 5-702 governs the admissibility of expert witness testimony.

It provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue. In making that determination, the court shall determine (1) whether the witness is qualified as an expert by knowledge, skill, experience, training, or education, (2) the appropriateness of the expert testimony on the particular subject, and (3) whether a sufficient factual basis exists to support the expert testimony. Concerning the first factor, a trial court ought to contemplate whether the subject matter is within the expert’s knowledge to which he or she could aid the trier of fact in ascertaining the evidence. Wantz, 197 Md.App. at 683 , 14 A.3d 1244 (citing Radman v. Harold, 279 Md. 167, 169 , 367 A.2d 472 (1997); Casualty Ins.

Co. v. Messenger, 181 Md. 295, 298 , 29 A.2d 653 (1943)) (quotations omitted). “The trial court is free to consider any aspect of a witness’s background in determining whether the witness is sufficiently familiar with the subject to render an expert opinion, including the witness’s formal education, professional training, personal observations, and actual experience.” Massie v. State, 349 Md. 834, 851 , 709 A.2d 1316 (1998) (citations omitted). As previously stated, appellees assert that the trial court properly exercised its discretion to preclude Dr. Trovato’s testimony because he (1) was not a physician or clinician; (2) was not licensed to practice medicine; (3) did not prescribe or write prescriptions; and (4) had never obtained a patient’s consent to treatment or had experience obtaining informed consent from patients. Appellants contend that Maryland’s case law did not require Dr. Trovato to be a medical doctor who routinely provided the basis for informed consent. However, the more pressing issue was whether Dr. Trovato, as a pharmacist, was qualified to testify regarding Amifostine. ⁴¹³ I. Whether The Trial Court Abused Its Discretion In Ruling That Dr. Trovato Was Not Qualified To Testify Concerning The Material Risks of Amifostine In An Informed Consent Action.

In an action alleging medical malpractice, a patient avers that a healthcare provider breached his or her duty of medical care and skill based on the medical community’s standard of care. McQuitty v. Spangler, 410 Md. 1, 18 , 976 A.2d 1020 (2009) (citing Dehn v. Edgecombe, 384 Md. 606, 618 , 865 A.2d 603 (2005)) (“Medical malpractice is predicated upon the failure to exercise requisite medical skill and, being tortious in nature, general rules of negligence usually apply in determining liability.”). According to the Health Care Malpractice Act, “when a defendant health care provider is board certified in a specialty, an expert witness attesting that the defendant deviated from (or complied with) the standard of care must be board certified in the same or a related specialty[ ] with certain exceptions.” DeMuth, et al. v. Strong, 205 Md.App. 521, 524 , 45 A.3d 898 (2012) (internal quotations omitted). However, regarding informed consent actions, this “qualification” restriction does not apply because a breach of informed consent action occurs when “a patient complains that a healthcare provider breached a duty to obtain effective consent to a treatment or procedure by failing to divulge information that would be material to his/her decision about whether to submit to, or to continue with, that treatment of procedure.” McQuitty, 410 Md. at 18-19 , 976 A.2d 1020 (citing Sard, 281 Md. at 444 , 379 A.2d 1014 ).

The complainant “... is not required to establish either the scope or the breach of the physician’s duty [of the standard of care] to disclose all material risks.” Mahler v. Johns Hopkins Hosp., Inc., 170 Md.App. 293, 319 , 907 A.2d 276 (2006) (citing Sard, 281 Md. at 447 , 379 A.2d 1014 ). For instance, in Hinebaugh v. Garrett County Mem. Hosp. et al., 207 Md.App. 1, 16 , 51 A.3d 673 (2012), our Court determined whether a dentist was board certified in a medical ⁴¹⁴ specialty. There, the plaintiff sustained injuries to his left cheek and jaw while incarcerated.

Id. at 6 , 51 A.3d 673 . He was evaluated by three defendants-medical doctors, a family medicine physician and two radiologists. Id. The plaintiff filed a medical negligence claim against the defendants, alleging a breach of care when they failed to perform a maxillofacial CT scan.

Id. at 7 , 51 A.3d 673 . To establish his prima facie case, the plaintiff identified a dentist, who specialized in oral and maxillofacial surgery (OMS), as his expert witness. Id. at 7-8 , 51 A.3d 673 . The plaintiff was required to file a certificate of a qualified expert, in addition to his qualifications, which attested to the defendants’ breach of the standard of care. 7 Id. at 11 , 51 A.3d 673 .

The defendants filed a joint motion to strike the dentist’s certificate and to dismiss the complaint, arguing that he did not meet the same or related specialty board certifications. Id. at 12-13 , 51 A.3d 673 . The trial court dismissed the action, finding that: [Although [the dentist] had taught OMS in OMS [sic] and dental departments and also in surgery departments of hospitals, the specialty of surgery was not related to the defendants’ specialties; and, in any event, [the dentist] had not taught general surgery, because he [was] not a physician. Id. at 16 , 51 A.3d 673 .

We affirmed the trial court’s ruling, and analyzed as follows: (1) The dentist diagnosed and treated facial fractures, and taught OMS trainees, but this did not demonstrate that there was an overlap between OMS and family medicine/radiology; (2) In the dentist’s certificate and his affidavit, he failed to establish his knowledge of the prevailing standard of care for ⁴¹⁵ family medical doctors in diagnosing patients, and for radiologists in examining x-rays; and (3) OMS dentists only specialized in limited areas concerning facial fractures. Id. at 26-29 , 51 A.3d 673 . We concluded that the dentist was not qualified as an expert because “the areas of knowledge and experience of board certified family medicine and radiology doctors [did] not overlap the areas of knowledge and experience of board certified OMS dentists.” Id. at 26 , 51 A.3d 673 . As previously indicated, Hinebaugh is distinguishable because an informed consent action does not require that the complainant establish a breach of the physician’s duty regarding the standard of care akin to a medical malpractice case.

See Mahler, 170 Md.App. at 319 , 907 A.2d 276 (citing Sard, 281 Md. at 447 , 379 A.2d 1014 ). We have not found any Maryland cases concerning whether a pharmacist is qualified to testify regarding a prescription drug in an informed consent action. While this issue is one of first impression in Maryland, several jurisdictions have undertaken consideration of similar issues. Although not directly analogous to the instant case, our sister states have examined whether non-medical doctors, such as pharmacists and/or pharmacologists, are qualified as an expert to opine regarding properties, scientific effects, warning signs, and/or known material risks of prescribed drugs.

We limit our focus to those specific aspects of these cases, along with the qualifications, because the aforementioned factors also impact informed consent claims. In Parker v. Harper, 803 So.2d 76, 79 (La.Ct.App.2001), the Louisiana Court of Appeal, Third Circuit, ruled that the affidavit of a pharmacist could define the existence, nature, and the probability of a risks’ occurrence. The plaintiffs filed a medical malpractice claim against the defendant-physician, alleging that he failed to inform them of the potential side effects and warning signs of the prescribed drug, Dilantin. Id.

The injured plaintiff experienced daily seizures, so the physician increased the prescription to Dilantin 100 milligrams three times a day. Id. The plaintiff developed a rash on her ⁴¹⁶ face and was hospitalized. Id.

The plaintiffs diagnosis was a possible drug reaction, resulting in Stevens-Johnson Syndrome or a varicella virus infection. Id. at 79 . She lost complete vision in one eye, partial vision in the other, and sustained permanent scarring on her body. Id.

The defendant filed a motion for summary judgment, which was granted. Id. at 80 . In opposition, the plaintiffs offered a pharmacist’s affidavit, who averred that Stevens-Johnson Syndrome was a possible side effect and known risk of taking Dilantin. Id.

On appeal, the court ruled: Though we recognize that he is not a neurologist, the potential development of Stevens-Johnson syndrome is not peculiar to the practice of neurology, [the expert] does not need to have treated patients with neurological problems to discuss the frequency of risks associated with Dilantin. His opinions represent to this court that he is an ‘other qualified expert’ with regard to drugs and potential reactions thereto and is capable of judging what risks exists, its nature, and the likelihood of its occurrence. There would be a serious question as to the sufficiency of [the expert’s] affidavit if he were opining regarding [the doctor’s] compliance with a neurologist’s standard of care. However, we do not view his affidavit as being employed for this purpose.

Id. at 84 . In Sinkfield v. Oh et al., 229 Ga.App. 883 , 495 S.E.2d 94, 95 (1997), the plaintiff experienced two previous miscarriages, and during her third pregnancy, she suffered from severe bleeding and excessive back pain. She was hospitalized, and the treating physician prescribed her Motrin 800. Subsequently, the plaintiff suffered her third miscarriage, and filed a complaint predicated on medical malpractice.

See id. The defendants-physicians filed motions for summary judgment, arguing that the plaintiff failed to establish a causal connection between their conduct and the miscarriage. Id. In opposition, the plaintiff offered testimony of a pharmacologist, who was also a toxicologist.

He opined that: ⁴¹⁷ He [had] knowledge of the effects of dosages of Motrin on pregnant women and their fetuses at various states of pregnancy. [He] testified that it was his professional opinion that “ ‘the Motrin-800 (ibuprofen, 800 milligrams) prescribed by [the treating physician] on December 24, 1992 was the predominate major contributing factor to the demise of the fetus of [the plaintiff].’ ” Id. The trial court excluded the pharmacologist’s testimony, stating that he was unqualified because he was not a medical doctor. Id. On appeal, the Court of Appeals of Georgia reversed, and reasoned that the pharmacologist was not testifying to medical malpractice, but causation.

Id. at 95-96. “If [he], as a toxicologist and pharmacologist, had been offered as an expert witness against the two medical doctors for purposes of [medical malpractice], [he] would not have been a competent witness” because it was traditionally held that an expert had to be qualified in the same or similar medical specialty. Id. at 96. However, because he was not opining to the standard of care, and because a pharmacologist was the individual who “ ‘ma[de] a study of the actions of drugs[,]’ ” the expert was qualified to testify regarding the scientific effect of the prescribed medicine. Id.

In Tidwell v. Upjohn, Co., 626 So.2d 1297, 1299 (Ala.1993), the decedent suffered from a sleeping disorder to which a physician prescribed him .25 milligram dosages of Halcion, and recommended him to a psychiatrist. The psychiatrist increased the dosage to .5 milligrams, and diagnosed him with severe depression. Id. The next day, the decedent expressed that he was “losing [his] mind,” and subsequently committed suicide.

Id. The decedent’s estate filed an action against the defendant-drug manufacturer, alleging that it failed to warn of the drug’s effects. To establish its prima facie case, the estate submitted deposition testimony of a pharmacist. Id.

The manufacturer moved for summary judgment, averring that the expert was not qualified because he was not a medical doctor. Id. The trial court granted the motion for summary judgment. Id. ⁴¹⁸ On appeal, the Supreme Court of Alabama concluded that the trial court abused its discretion in excluding the expert testimony because the pharmacist’s education, expertise, and training in pharmacology 8 rendered him qualified to opine regarding whether the drug contributed to the suicide.

Id. at 1300 . In Goodman et al. v. Lipman et al, 197 Ga.App. 631 , 399 S.E.2d 255, 256 (1990), the plaintiffs fled a medical malpractice complaint against the defendant-physician, asserting that he failed to exercise due care in treating the injured plaintiffs heart disease by prescribing Coumadin and Nembutal. To establish their case, the plaintiffs offered the testimony of a pharmacologist. Id. at 257.

The defendant filed a motion to exclude the expert because he was not a medical doctor. Id. The trial court agreed, and granted the motion. Id.

On appeal, the Court of Appeals for Georgia concluded that “ ‘[t]he opinions of experts on any question of science, skill, trade, or like questions shall always be admissible ... [,]’ ” and that the evidence illustrated that the pharmacologist’s testimony relating to the properties of the prescribed drugs was likely relevant to a finder of fact. Id. at 258. In Garvey v. O’Donoghue, 530 A.2d 1141, 1142 (D.C.1987), the plaintiffs filed a medical malpractice claim against the defendants-physicians for prescribing an antibiotic, which allegedly caused the injured plaintiff to contract tinnitus. 9 The plaintiffs identified a pharmacologist as their expert witness. Id. at 1146 .

The trial court limited the expert’s testimony, and precluded him from testifying about the prescription’s ⁴¹⁹ amount of dosage, and whether the prescription was properly-prescribed. Id. On appeal, the court stated: It seems clear, then, that to the extent physicians do rely on a body of pharmacological information, the expertise of a pharmacologist is virtually indistinguishable from that of the physician. Since physicians rely upon information that originates with or is provided by the practitioners in another field, here pharmacologists, this reliance opens the door for these non[-]physicians to testify as to that body of information.

In effect, where a physician “borrows” a standard of care from the research and work of other professionals, members of that profession may testify about it. Id. at 1147 . The District of Columbia (“D.C.”) Court of Appeals concluded that the trial court erred in disallowing the pharmacologist to testify regarding the effects and proper dosage of the drug. Id.

See also Thompson v. Carter, 518 So.2d 609, 615 (Miss. 1987) (“The instant record reflect[ed] that [the pharmacologist], who taught medical students and advised and counseled physicians as to drug use and administration, through his skill, knowledge, training, and education, knew the standard of care to which physicians adhered when prescribing Bactrim,” thereby, he was qualified as an expert witness.). We also examine federal cases that have ruled on a similar issue. In United States v. Smith, 573 F.3d 639, 653 (8th Cir.2009), the United States (“U.S.”) Court of Appeals for the Eighth Circuit determined whether a pharmacist constituted an expert regarding a physician’s standard of care. The defendant was convicted of several crimes 10 for prescribing medications over .the internet without examining the patients or verifying their alleged illnesses and injuries.

Id. at 643 . ⁴²⁰ On appeal, the defendant argued that the trial court erred because it permitted a pharmacist to testify as an expert. Id. at 646 . The Eighth Circuit examined the pharmacist’s expertise, and found that: [He was] ... the executive director of the National Association of Boards of Pharmacy (“NABP”) for twenty years.... [He] annually [gave] testimony before Congress, state legislatures, and state committees on Internet pharmacies and the relevant laws. Through his work with the NABP, [he] also helped institute a national accreditation program that developed standards of operation for legitimate Internet pharmacies.... [He had] twenty years of teaching at the Washington University Medical School, [which] qualifie[d] him as an expert entitled to express an opinion as to medical procedures in prescribing drugs.... [He] ... also helped the Government identify over 1,500 “rogue pharmacies,” or pharmacies that operate[d] in contravention of state and federal law and offer[ed] medications to patients or customers without legitimate or valid prescriptions.

Id. at 653-54 . As a result, the Eighth Circuit concluded that the pharmacist was an expert with the necessary expertise to testify regarding the defendant’s standard of care. Id. at 653 . In United States v. Bek, 493 F.3d 790, 795 (7th Cir.2007), the defendant was “convicted of twenty-six counts of conspiring to distribute and distributing controlled substances, and committing health care fraud” for prescribing medications without examining his patient’s medical records, performing MRIs, conducting x-rays, and failing to diagnose them.

Id. at 796 . During trial, the Government offered expert testimony from a pharmacist who opined that “[the defendant’s] practices were dangerous and very unusual[”] and that the defendant “should have conducted several diagnostic tests and reviewed patients’ medical histories before prescribing drugs such as Vicodin.” Id. at 796 . ⁴²¹ On appeal, the defendant did not contend whether the pharmacist was an expert, but instead averred that the Government’s witness established a prima facie case for civil negligence, not criminal conduct. Id. at 798 . The U.S. Court of Appeals for the Seventh Circuit concluded that the evidence was sufficient to fulfill the criminal standard.

Id. at 799 . See also United States v. Jones, 570 F.2d 765, 769 (8th Cir.1978) (holding that “[although not a[ ] [medical doctor], [the pharmacist’s] twenty years of teaching at the Washington University Medical School qualifiefd] him as an expert entitled to express an opinion as to medical procedures in prescribing drugs ... ”). Although we relate our ruling to the abovementioned cases, we observe that other jurisdictions and courts have ruled otherwise. In Hollabaugh v. Arkansas State Med.

Bd., 43 Ark.App. 83 , 861 S.W.2d 317, 318 (1993), the State Medical Board (“Board”) found the defendant-physician grossly negligent for prescribing patients disproportionate amounts of harmful medications. A pharmacist, on behalf of the Board, testified about the kinds, quantities, and regularity of the medications that the physicians prescribed to the patients. Id. at 321. However, the pharmacist lacked experience in testifying whether the physician’s treatment was a breach of ordinary care.

Id. Because the expert could not ascertain whether the physician breached the medical community’s standard of care, the Arkansas Court of Appeals reversed the trial court’s ruling, and concluded that the expert was not qualified to testify. Id. In Chandler v. Koenig, 203 Ga.App. 684 , 417 S.E.2d 715 (1992), the plaintiff alleged that two physicians breached the ordinary standard of care, resulting in medical malpractice.

The plaintiff provided the court with an affidavit from a professor, who possessed a Ph.D in pharmacology and toxicology, to establish the defendants-physicians’ negligence. 11 Id. ⁴²² The professor asserted that he was “familiar [with the] standard of care required and the properties and interactions of the drugs prescribed to [the plaintiff] by [the physicians] and with their recommended use” and was “competent to testify regarding the standards of care and recommended use” of the drugs. Id. The Georgia Court of Appeals concluded that the professor’s affidavit lacked evidence to illustrate that his “education, training, or experience as a [pharmacologist] would likewise demonstrate his similar expert qualifications as to [the prescribing of drugs by a medical doctor],” thereby, he did not qualify as an expert witness for the purposes of the defendants’ alleged breach of the standard of care. Id.

(emphasis in original). In Bell v. Hart, 516 So.2d 562, 564 (Ala.1987), the plaintiffs filed a medical malpractice action against the defendant-physician for prescribing the injured plaintiff a drug, which caused her to sustain injuries. The plaintiffs identified a psychologist and a pharmacist as their expert witnesses. 12 Id. The Alabama Supreme Court concluded that the trial court correctly excluded the expert witnesses’ testimonies because: Although [the pharmacist and psychologist] [were] shown to be highly qualified experts in their fields of study, we [could] not permit them to testify whether a medical doctor followed the proper standard of care in prescribing the drug Elavil.

Neither was shown to be authorized to prescribe the drug. While their knowledge of the drug and its effect on the human body may or may not be greater than that of a medical doctor authorized by law to prescribe the drug, ⁴²³ we [could] not permit a non[-]physician, who [could] not legally prescribe a drug, to testify concerning the standard of care that should [have] be[en] exercisefd] in the prescription of the drug. Id. at 570 . In Rodriguez v. Jackson, 118 Ariz. 13 , 574 P.2d 481, 482 (Ct.App.1977), the injured plaintiff brought a medical malpractice action against the defendants-physicians who prescribed an excessive amount of Streptomycin to address the plaintiff’s tuberculosis diagnosis, resulting in permanent neural damage.

Among other experts, the plaintiffs designated a pharmacologist to testify concerning the physician’s breach of the standard of care. 13 Id. at 484. The Arizona Court of Appeals stated that: More than twenty-three hundred years ago Aristotle wrote, in his work on Politics, wrote [sic]: As a physician ought to be judged by the physician, so ought men