Family Medicine Expert Not Allowed to Opine on the Standard of Care in Rural Nebraska

This medical malpractice action by Plaintiff Alexander Thomas (Plaintiff) for the wrongful death of his mother, Pamela Thomas (the Decedent), arises from the alleged failure of the staff of a licensed medical clinic, Defendant McCook Family Medicine, P.C. (McCook Clinic), including one of its doctors, Defendant John West, M.D. (Dr. West), to notify the Decedent of critical lab results and send her to the nearest hospital.

Pursuant to Federal Rule of Civil Procedure 26(a)(2), Plaintiff disclosed a family medicine physician, Robert L. Perkel, MD. Defendants argued that Perkel could not testify on the relevant standard of care because of the difference in his experience as a family practice physician in a large metropolitan hospital and his failure to research and understand the standard of care required in a rural community.

Family Medicine Expert Witness

Robert Louis Perkel, MD is a board-certified family practice physician with approximately 48 years of clinical experience. He has trained approximately 200 medical students over the last 45 years and has trained between approximately 300 and 500 residents in family medicine who are practicing all over the country.

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Discussion by the Court

In order to testify about a national standard of care, Perkel needed to establish that the local standard reflects the national standard; that is, he must begin by proving his familiarity with the local standard.

The Court found that Perkel did not sufficiently familiarize himself with the local standard of care to support the admissibility of his opinions as an expert. Recognizing that Perkel is undoubtedly a competent doctor, the Court highlighted from his deposition that Perkel had never been to McCook or practiced in Nebraska, did not consult any Nebraska family practice physicians, and recognized that “there might be sometimes a local difference.” Perkel’s assertion that the standard of care is often a national standard was not enough.

Similarly, his belief that "the local answer is the same as the national answer" or that the national standard is taught in medical school does not evidence his familiarity with the specific local rule as demanded by Nebraska law. Additionally, any attempt Perkel made at familiarizing himself with the McCook clinic was superficial.

The whole of Perkel's research amounted to "googl[ing] the McCook Clinic and the hospital there" to "get a sense of it." Therefore, the Court concluded that Perkel did not establish in his disclosures or deposition that he was sufficiently familiar with the local standard of care as required by Nebraska law to testify as an expert in this case.

Held

The Court granted Defendants' motion to exclude the testimony of Dr. Robert Perkel.

Key Takeaway

Nebraska's locality rule requires the Court to look for evidence that the expert is familiar with the local standard of care or that the local standard reflects the national standard. Perkel did not familiarize himself with the local standard of care. Therefore, the Court cannot admit Perkel's opinion as an expert on the standard of care.

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