Michigan Appeals Court Holds Trial Court Improperly Struck Expert Testimony in Medical Malpractice Case

On December 19, 2012, a doctor performed a Roux-en-Y gastric bypass and hernia repair on a patient. The doctor performed the gastric bypass procedure laparoscopically, but he found it necessary to open the abdomen to complete the hernia repair. During his recovery, the plaintiff vomited numerous times, including his intestinal contents. The doctor determined that the plaintiff needed a second surgery to repair an acute small bowel obstruction, which he believed was related to the hernia repair. On December 21, 2012, he operated on the plaintiff for the small bowel obstruction. The doctor and the anesthesiologist discussed whether to use a nasogastric (NG) tube, but the doctor decided against it because of the risk of perforating the fresh anastomosis from the gastric bypass procedure. The plaintiff subsequently aspirated, causing aspiration pneumonitis that in turn caused adult respiratory distress syndrome (ARDS), a stage IV bed sore, and neuropathy in the plaintiff’s legs.

operating room

The plaintiff filed a Michigan medical malpractice action against the defendants, alleging that the standard of care was breached by the failure to place an NG tube before the second surgery, although one was placed after the plaintiff aspirated. Both parties retained expert witnesses who disputed whether the doctor should have inserted an NG tube to avoid aspiration before the plaintiff’s second surgery.

Following discovery, the plaintiff filed a motion to strike the testimony of the defendants’ two expert witnesses. He argued that the experts’ opinions that an NG tube should not have been placed before the second surgery were based solely on their own personal opinions and experience. Therefore, he argued the defendants’ experts’ opinions were scientifically unreliable and should be precluded under MCL 600.2955 and MRE 702. Furthermore, the plaintiff argued that one of them incorrectly defined “standard of care” as “[w]hat a prudent individual of similar experience and expertise would do,” and he incorrectly applied a local, rather than a national, standard of care.

Following oral arguments, the trial court denied the motion as to the scientific reliability of the defendants’ experts’ opinions, holding that a decision would be made at trial about whether an expert opinion is based on a sufficient foundation. However, the trial court granted the motion with respect to the testimony of the one witness for articulating the wrong standard of care, i.e., one of prudence, a standard of care not applicable in Michigan. Thus, his expert opinion was unreliable, and he was stricken as an expert witness.

On appeal, the defendants argued that the trial court abused its discretion in striking this testimony solely because he used the word “prudent” rather than “ordinary” to define the standard of care. The Michigan Court of Appeals agreed.

The appeals court first explained that to prove a malpractice claim against a specialist, the plaintiff must show that the defendant failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.

In granting the plaintiff’s motion in limine to exclude the testimony, the trial court focused on the use of the word “prudent” to define “standard of care.” The trial court noted that the words “prudent” and “ordinary” have “materially different” definitions. The trial court granted the plaintiff’s motion to exclude the testimony because “it would be inappropriate to allow a jury to hear” his opinion, which was “based on an incorrect standard.”

The appeals court agreed with the defendants that the trial court erroneously focused on the word “prudent” and should not have excluded the testimony for this reason alone. In medical malpractice cases, the plaintiff must prove that the defendant physician failed to provide the standard of practice of care, as recognized either in their local community, if a general practitioner, or nationwide, if a specialist. In other words, while a physician does not guarantee a particular result and generally cannot be held liable for the failure to provide a specific result, it can be said that a general practitioner does guarantee to possess and to carefully apply such professional skill and learning as are ordinarily possessed by general medical practitioners in the locality in which he practices and that a specialist, by holding himself out as possessing special knowledge and skill in his branch of the medical profession, impliedly guarantees that he possesses learning and skill superior to those of the general practitioner and that he will carefully apply them in his treatment or operation.

Therefore, the appeals court concluded, the expert did not articulate or necessarily apply the “wrong” standard of care simply because he used the word “prudent,” which is commonly understood to mean careful or cautious, in his definition of “standard of care.” Accordingly, the trial court’s decision to strike the testimony of the witness because he used the word “prudent” in his definition of “standard of care” constituted an abuse of discretion and was reversed.

On cross-appeal, the plaintiff argued that the opinion testimony of the defendants’ expert witnesses was not scientifically reliable; thus, his motion in limine to preclude their testimony and strike them as expert witnesses should have been granted. The trial court held that it would wait until trial to determine whether the defendants’ experts’ opinion testimony was reliable and thus admissible. The appeals court agreed with the trial court that a decision on the plaintiff’s challenge to the scientific reliability of the defendants’ experts’ opinions was premature and affirmed that decision.

The medical malpractice attorneys at the Neumann Law Group represent people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.

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