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Court holds that it is error to exclude standard of care testimony that cannot be based on peer-reviewed research

Paulette Elher sued her surgeons, Murphy & Misra and the William Beaumont Hospital after Dwijen Misra screwed up her gall bladder surgery.  In a mistake of fundamental proportions, Misra severed the common bile duct, rather than the cystic duct in removing Elher's gall bladder, resulting in long-term complications and additional surgery.  Her attorneys retained a highly qualified, Board-certified general surgeon who teaches at Case Western University Medical School and had performed literally thousands of gall bladder surgeries; he testified that since Ehler's anatomy was not marred by scar tissue or inflammation, Misra violated the standard of care by failing to isolate the related structures before mistakenly severing the common bile duct.

Incredibly, Misra's insurance attorneys argued that the well-qualified surgeon who testified for Elher was not qualified to offer expert testimony, because he could not cite peer-reviewed research that documented his opinion.  The expert explained that no related studies had ever been performed, and that it is malpractice to sever the common bile duct during a cholecystectomy if the surrounding tissue is not obscured by inflammation or scarring. 

Not surprisingly, the defendant offered a surgeon "friend" to claim that a severed common bile duct could occur, even in the absence of surgical complications, without malpractice.  He cited to the court an "Editorial Opinion" from the American Journal of Surgery supporting his opinion that severing the common bile duct "might not be practice below the standard."  The trial judge relied on this opinion essay to conclude that the Case Western professor-surgeon could not testify for the injured woman because he lacked scientific support for his opinion.

The Court of Appeals overturned this decision and instructed the trial judge that it was for the jury to decide which of the two experts' testimony should be believed.  The appellate judges noted that standard of care opinions are precisely that--opinions--and not necessarily capable of documentation with research.    The existence of a contrary "editorial opinion" does not invalidate the opinions of an experienced, otherwise qualified expert.  Rather, as the editorial opinion expressly acknowledged, the experts' disagreement "boils down to a difference of opinion on an issue outside the realm of scientific methodology."  The appellate judges cited a Massachusetts Supreme Court case and earlier Michigan Supreme Court decisions that previously addressed the same+ issue;  since Ehler's expert's opinion was "rationally derived from a sound foundation," it was admissible.


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