Appellate court preserves modest verdict for victim in medical malpractice case

Elizabeth Krushena sued A & G Aesthetics and General Surgeon Ali Meslemani, doing business as "Lumiere Medical Spa," after the doctor administered intense pulse laser (IPL) therapy to treat discoloration on Krushena's face and created stripes of tissue completely and permanently devoid of pigment. Krushena's attorneys presented the testimony of a cosmetic surgey subspecialist, and argued that the defendants had breached the standard of care, as well as the Michigan Consumer Protection Act.  The trial judge dismissed all but Krushena's malpractice claim, which was submitted to an Oakland County jury.  The jury awarded Krushena $117,000.00 in past non-economic damages, $3,000.00 in current economic damages and a little over $20,000.00 in future damages.  The defendants appealed.

The doctor's insurer's attorneys argued that a cosmetic surgery specialist could not testify against the defendant because the defendant was board certified in General Surgery.  The Court noted that both men practiced the same sub-specialty of cosmetic surgery, which was the relevant specialty.  Therefore, the trial judge properly allowed the Plaintiff's expert to testify. The higher court also upheld the trial judge's ruling that the question of the Plaintiff's expert's experience in completing IPL therapy on patients was a matter of the weight to be given his testimony, not the admissibility.

The higher court also upheld the trial judge's admission of the testimony of a certified laser technician who explained both how the Cutera IPL machine operated and also the manufacturer's guidelines.  The Defendant argued that neither the operator's testimony nor the manufacturer's guidelines should be admitted when a doctor's compliance with the standard of care is under scrutiny.  Both Courts rejected this argument.  The higher court pointed out that the trial judge carefully restricted the operator's testimony to exclude any opinion about the standard of care, and all of the physicians testified that the operating guidelines did not establish the standard of care.

The unanimous Court of Appeals opinion rejected the Defendants' argument that a machine manufacturer's guidelines were akin to internal rules of a health care provider and therefore irrelevant.