Judges throw out another woman's expert testimony and then her case
A panel of the Court of Appeals that included the special interests' best friend, Judge Henry Saad, threw out another medical malpractice case this week. Tamara Morrow suffered a perforated bowel when her O.B.Gyn, Edilberto Moreno, nicked her colon during an unrelated surgery. Morrow presented the testimony of another O.B. specialist surgeon, Dr. Jeffrey Soffer, who testified that it was a breach of the standard of care for Moreno to close Morrow's abdomen without detecting the injury he had caused. Soffer also testified that in his opinion it is always negligent to close the abdomen without detecting an injury that the surgeon has caused. Morrow sued to recover damages for her additional surgery, her resulting colostomy and several months of misery.
The Defendant's attorneys produced medical literature suggesting that failing to detect an iatrogenic [physician-caused] injury during surgery is a not infrequently-occurring event. On this basis, they asked the Genessee County trial judge to exclude Soffer from testifying that the defendant breached the standard of care. They argued that he was over-reaching science by offering the opinion that average competent surgeons would always catch injuries he had caused before closing. The judge granted the Defendant's request, and since Morrow no longer had an expert witness, the judge also dismissed the case. When Morrow sought an extension to name a new expert, the judge denied it.Morrow's attorneys appealed. They pointed out that Soffer had filed a supplemental affidavit confirming the fact that given the location and size of Morrow's perforation there was no good excuse for Moreno's failure to recognize and repair it. Judge Saad's panel upheld the lower court's decision. The court of Appeals opinion concluded that Soffer could not add his explanation to his deposition testimony and that since there was medical literature that contradicted his opinion about the standard of care, he couldn't offer his opinion, at all.
Normally, medical literature is considered to be "hearsay" because the author of the study or textbook is not present to be cross-examined. In fact, this kind of "hearsay" expert opinion cannot be admitted in either party's case-in-chief; the adverse party can only use published literature to diminish the weight of his opinion by cross-examination with the contradictory medical literature: the article or textbook is not even admitted as an exhibit, even if it directly contradicts the expert's opinion.
Under the long-standing rules, it is then up to the jury to decide how much weight to give the expert's opinion. In our current political climate, however, all of these rules are bent to provide greater protection to health care providers. This kind of aberrant decision--essentially holding a victim's expert to an arbitrarily higher threshold of proof--is rendered against patients and in favor of doctors on a consistent basis. While doctors' experts are frequently allowed to offer extremist views and to speculate based on their experience and judgment, victims' experts' opinions receive harsh treatment in Michigan's courts. If the reader were to review the past five years' similar decisions (available here and elsewhere) it will be noted that excuses are made to allow non-compliant testimony from doctors' experts, while novel interpretations of the rules are used to exclude patients' experts. Consistently. We invite you to add up the numbers. You will be startled.