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Malpractice claim dismissed after adequacy of plaintiff's expert opinion is questioned

Marilyn Chirilut sued Beaumont Hospital claiming that during a 2005 surgical work-up, a hospital employee injured her shoulder joint while positioning her right arm over her head.  She claimed she heard a "pop" at the time and that she had experienced pain ever since.  X-rays confirmed an injury.  Chirilut's attorneys obtained an affidavit from her orthopaedic surgeon confirming his opinion that the injury was suffered when the woman heard the "pop" during overhead positioning at Beaumont.  When he was approached and deposed by the insurance attorneys, however, the doctor obviously became intimidated.  He stuck by his opinion, but suggested that the plaintiff's attorneys had only obtained the affidavit by threatening to subpoena him.

The doctor questioned his own "expertise" despite the fact that he was a board-certified orthopaedic surgeon, and he admitted that he hadn't reviewed all of the medical records from Chirilut's care prior to his own treatment.  The trial court granted summary disposition to Beaumont, holding that the surgeon's opinion was not adequate proof of causation.  While it would seem that this constituted an inappropriate "weighing" of the surgeon's expert testimony, the more distressing development is the Appeals Court's denigration of Chirilut's doctor's affidavit as potentially involuntary and invalid--even though he acknowledged signing it and continued to manifest the same opinions--simply because it  was allegedly obtained at "subpoena-point."  The Court's willingness to honor such an argument about validity, and its willingness to suggest that the surgeon was unqualified because he suggested that "he [no longer, apparently] considered himself an expert"--despite his affidavit, his board certification and his related medical practice--is simply disingenous and an embarrassment to our jurisprudence.
Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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