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Must 'experts' in malpractice cases have same specialties?

FIFTEEN-DAY-OLD AUSTIN WOODARD WAS ADMITTED TO THE PEDIATRIC INTENSIVE CARE UNIT (PICU) AT THE UNIVERSITY OF MICHIGAN HOSPITAL FOR A RESPIRATORY PROBLEM. During his stay at the hospital, he was under the care of Dr. Joseph Custer, the hospital's Director of Pediatric Critical Care Medicine. When the infant was moved to the general hospital ward, physicians in that ward discovered that both of the infant's legs were fractured. The infant's parents sued Dr. Custer and the hospital, alleging that the fractures were the result of negligent medical procedures, namely, the improper placement of an arterial line in the femoral artery of the infant's left leg. The plaintiffs' proposed expert witness, who signed the plaintiffs' affidavit of merit, was board-certified in pediatrics, but did not have any certificates of special qualifications. Dr. Custer, board-certified in pediatrics, had certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine. Before discovery, the trial court denied the defendants' motion for summary disposition, concluding that the plaintiffs' attorney had a "reasonable belief" under Michigan law that the plaintiffs' proposed expert was qualified to testify against the defendant physician and, thus, that the plaintiffs' affidavit of merit was sufficient. After discovery, the trial court granted the defendants' motion to strike the plaintiffs' expert witness on the basis that he was not actually qualified to testify against the defendant, Dr. Custer. The trial court dismissed the plaintiffs' suit with prejudice, concluding that the plaintiffs could not reach a jury without the proper expert testimony. Editor's Note: Dismissal with prejudice precludes a party from initiating another suit. The Court of Appeal of Michigan affirmed the trial court's ruling that, under Michigan law, the plaintiffs' proposed expert witness was not qualified to testify against Dr. Custer. One judge on the Court of Appeals dissented on this issue, but took the position that he would have reversed the trial court's dismissal on the basis that expert testimony was unnecessary under the doctrine of Res Ipsa Loquitur (RIL). The Court of Appeals held that under RIL an inference of negligence might be drawn from the fact that the infant was admitted to the PICU with two healthy legs and discharged from the PICU with two fractured legs. One judge dissented on this issue. The defendants sought leave to appeal the Court & Appeals decision that the doctrine of RIL applied. The plaintiffs sought leave to cross-appeal the Court of Appeal's decision that their proposed expert witness was not qualified to testify against Dr. Custer.

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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