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A Better Partnership
November 20, 2014

COA holds that expert may testify in medical malpractice case if relevant board certification was in force at the time of the alleged malpractice

In Rock v. Crocker, No. 312885, the Michigan Court of Appeals held that in a medical malpractice case, under MCL 600.2169(1)(a), the plaintiff’s expert witness may testify because he was board certified in the same specialty as the defendant at the time of the alleged malpractice, although he had allowed his board certification to lapse. The plaintiff sued the defendant doctor for medical malpractice after he performed orthopedic surgery on his ankle and provided him with post-surgical care. Shortly before trial, the court excluded one of the plaintiff’s expert witnesses because he was no longer board certified in orthopedic surgery. The court also excluded any mention of the plaintiff’s receipt of no-fault insurance benefits connected with his injury, and denied defendant’s motion to “strike allegations of malpractice.” The Court of Appeals granted the defendant’s interlocutory application for leave to appeal, and the defendant cross-appealed.
 
The court held that the trial court erred by excluding plaintiff’s expert because under the text of the statute, MCL 600.2169(1)(a), the expert need only be board certified in the same specialty as the defendant at the time of the alleged malpractice. The court reasoned that the first sentence of the relevant statute, while using present-tense verbs, includes the words “at the time of the occurrence,” and so it is irrelevant that the second part of the statute that requires board certification also uses present tense verbs.
 
The court also held that the trial court erred in part by denying the defendant’s motion to “strike allegations of malpractice,” although the motion really operated as both a partial motion for summary judgment and motion in limine. The plaintiff alleged that the doctor was negligent in his placement of the plate in his ankle and in using the number of screws he used, and in advising the plaintiff that it was okay to put weight on his ankle after surgery. Plaintiff’s expert testified that these actions violated the applicable standard of care, but did not cause damage. The court held that to the extent the motion operated as a partial motion for summary disposition, it should be granted and the court should not allow the plaintiff to seek damages on those alleged breaches. However, 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. The court also held that the trial court properly excluded evidence that the plaintiff received no-fault insurance benefits as a result of the accident, which occurred while he was changing a tire on a motor vehicle. The exclusion was proper because its probative value was clearly outweighed by the danger of unfair prejudice under MRE 403.

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