A medical malpractice expert must be board-certified in the same specialty as the defendant at the time of the occurrence, but not at the time of trial, according to the Michigan Supreme Court. Rock v. Crocker and Crocker D.O., P.C., No. 150719. Furthermore, evidence of malpractice that does not result in injury but would be used to show inexpertise or incompetence must first be evaluated under MRE 404(b)’s “other acts” rule before determining whether it is more probative than prejudicial under MRE 403. MRE 404 is a rule of legal relevance, excluding propensity evidence that may be logically relevant under MRE 401 and 402.
Dustin Rock fractured his right ankle while changing the brake pads on a truck. Defendant K. Thomas Crocker, D.O., a board-certified orthopedic surgeon, conducted surgery and provided postsurgical care. After surgery defendant allegedly told plaintiff that he could start bearing weight on his leg, though plaintiff did not start doing so at the time. Later in the year, another doctor, Dr. David Viviano, performed a second surgery on plaintiff’s ankle, purportedly because the surgery performed by defendant had failed to unite all the pieces of the fracture. At the time of the surgery performed by defendant, Viviano was a board-certified orthopedic surgeon. Plaintiff later filed a complaint against Dr. Crocker, alleging he committed 10 specific acts of negligence over the course of the first surgery and postsurgical care. With it he proffered an affidavit of merit from Dr. Antoni Goral, a board certified orthopedic surgeon, who opined that Dr. Crocker breached his duty of care by not using enough screws and the proper length plate during surgery and that defendant prematurely allowed plaintiff to start putting weight on the leg after surgery. He also stated, however, that this did not cause any injury to the plaintiff. The trial court admitted this evidence as relevant to Dr. Crocker’s general competency under, after determining it was not unduly prejudicial under MRE 403. Plaintiff also offered testimony of Dr. Viviano, who performed the second surgery, as a standard-of-care expert. Dr. Viviano was board-certified at the time of the alleged malpractice, but by the time of his testimony, his certification had expired. On Dr. Crocker’s motion, the trial court excluded Dr. Viviano’s testimony under MCL 600.2169(1)(a), on the basis that he was not board-certified. The Court of Appeals affirmed the trial court’s first ruling and reversed the second.
The Michigan Supreme Court affirmed in part and reversed in part. The Court explained that, even if evidence is relevant under MRE 401 and 402, it may still be excluded under MRE 404 because MRE 404 “is a rule of legal relevance, defined as a rule limiting the use of evidence that is logically relevant.” MRE 404(b)(1) prohibits the admittance of evidence of other crimes or wrong acts in order that a person acted in conformity with a character trait, but it does allow such evidence if it is introduced for other acceptable purposes that are enumerated in the statue (e.g. motive, scheme, plan, preparation). Because the evidence that defendant had failed to use proper screws and plates during the surgery and gave bad advice as to when the defendant could begin putting weight on his leg was evidence that appears to show that defendant had a propensity to breach the standard-of-care, the court needed to embark on a MRE 404(b) analysis.
As for Dr. Viviano’s testimony, his testimony was admissible because he had a board-certification in the same specialty as the defendant at the time of the occurrence that is the basis for the action. MCL 600.2169(1) allows the expert testimony of a duly licensed health professional if several criteria are met, including: “[i]f the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.” The first part of the provision speaks in terms of specializing at the time of the occurrence. Because use of the word “however” transitions the two sentences, the latter specialty requirement is complimentary to, rather than independent from the board-certification requirement, such that both sentences should be read together. They both relate to the time of the occurrence that is the basis for the action.