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A Better Partnership
June 08, 2015

MSC to consider whether expert may testify in malpractice action if no longer certified in same specialty as defendant

The Michigan Supreme Court granted leave to appeal in Rock v. Crocker, No. 150719, to determine whether an expert in a medical-malpractice action may testify at trial if the expert was board certified in the same area as defendant at the time of the alleged negligent act, but not at the time of trial. The Court will also consider whether the trial court erred when it did not strike testimonial evidence from plaintiff’s expert that defendant violated the standard of care but those violations did not cause damages.
Dustin Rock sued Dr. Thomas Crocker for medical malpractice after Dr. Crocker performed orthopedic surgery on Rock’s ankle and provided him with post-surgical care. Rock alleged that Dr. Crocker was negligent in his placement of the plate in his ankle, the number of screws used, and advising Rock that it was okay to put weight on his ankle after surgery. Shortly before trial, the circuit court excluded one of Rock’s expert witnesses because he was no longer board certified in orthopedic surgery, although he was certified when the surgery took place. During trial, another expert testified that some of Dr. Crocker’s actions violated the applicable standard of care (i.e. were malpractice) but did not cause damages. Dr. Crocker moved to strike the expert’s testimony regarding these other incidents of malpractice, which the trial court denied.
The Court of Appeals granted interlocutory application for leave to appeal and held that the circuit court should not have excluded Rock’s expert witness because the language of MCL 600.2169(1)(a), which provides for the admissibility of expert testimony in medical malpractice actions, allows an expert witness to testify so long as the expert is board certified at the time of the alleged malpractice, rather than at a later trial. The court also concluded that the trial court erred in part by denying the defendant’s motion to strike other allegations of malpractice and that Rock may not seek damages on those alleged breaches that did not cause damages. The court remanded to the trial court, directing it to decide whether the probative value of the evidence of the two alleged breaches was substantially outweighed by the danger of unfair prejudice, such that it should be excluded under MRE 403. Click here for our previous post on the Court of Appeals opinion.
The Michigan Supreme Court will determine (1) whether the lower courts erred in concluding that allegations relating to violations of the standard of care that the plaintiff’s expert admitted did not cause the plaintiff’s injury were admissible as evidence of negligence; and (2) whether the Court of Appeals erred in holding that, if the defendant is a board-certified specialist, MCL 600.2169(1)(a) only requires an expert to be board certified in that same specialty at the time of the malpractice, and not at the time of trial.

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