Must 'experts' in malpractice cases have same specialties?
THE SUPREME COURT OF MICHIGAN AFFIRMED THE JUDGMENT OF THE COURT OF APPEALS. The court held, inter alia, that although specialties and board certificates must match, not all specialties and board certificates must match. The court observed that Michigan law states that "a person shall not give expert testimony on the appropriate standard of practice or care unless...."(Emphasis added.) Put another way, the court addressed the necessary qualifications of an expert witness to testify regarding the "appropriated standard of practice or care," not regarding an inappropriate or irrelevant standard of medical practice or care. The court reasoned that because an expert witness is not required to testify regarding an inappropriate or irrelevant standard of medical practice or care, Michigan law should not be interpreted to require such witness to specialize in specialties and possess board certificates that are not relevant to the applicable standard of medical care about which the witness is to testify. Further, the court observed that the law refers to "the same specialty" and "that specialty," and that it does not refer to "the same specialties" and "those specialties." The court concluded that the law requires the matching of a singular specialty, not multiple specialties. The court concluded that Dr. Custer could have either filed an interlocutory appeal or could have waited until a jury rendered a verdict adverse to him before filing an application for leave to appeal. Either way, he could have preserved the issue for appeal by objecting to the plaintiffs' expert's testimony on the basis that the expert was not qualified because he did not specialize in the relevant specialty. Then, the Dr. Custer could have made it clear what he perceived the relevant specialty to be and why.
IN ADDITION TO TWO CONCURRING OPINIONS, THREE OF THE SEVEN JUDGES ON THE COURT FILED A DISSENTING OPINION. The dissenting judges concluded that the majority opinion, by allowing "theory preclusion" in a medical malpractice case, allowed the trial judge, rather than the jury, to determine the factual question of whether the procedure performed by Dr. Custer did, in fact, implicate one or more of the doctor's specialty areas. The dissenting opinion concluded that the question was not a relevance question, no matter how adamant the majority was in trying to characterize it as one. Simply put, the dissenting opinion focused on the fact that under the majority opinion the trial court was given carte blanche to invade the province of the jury. Woodard v. Custer, No. 124994 (Mich. 07/29/2006) N.W.2d--MI
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.
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|Author:||Tammelleo, A. David|
|Publication:||Medical Law's Regan Report|
|Date:||Aug 1, 2006|
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