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Malpractice insurer loses a round on appeal; victim's expert--the subsequent treater--can testify.

In Rock v. Crocker, the plaintiff sued his orthopaedic surgeon alleging that the surgeon botched the treatment of his trimalleolar ankle fracture.  He presented the testimony of the subsequent treater to support his claim.  Both doctors were board-certified experts when the treatment was rendered, however, the witness who took over treatment had allowed his board certification to lapse prior to the trial.  The insurance company for the defendant argued that this made him ineligible to testify as an expert.

The Court held that the statute which narrowly limits who can testify in a malpractice case applies to the witnesses' credentials at the time the the standard of care was allegedly breached:  at that point they must match the defedant's credentials exactly.  After the fact, their specialty credentials may diverge.

The Defendant also argued that it should be allowed to argue that the plaintiff was a "malingerer" and that it should be able to break the normal rule and admit evidence that he recieved collateral benefit insurance payments.  (Normally those payments are deducted from any jury verdict, but not published to the jury.)  The higher court ruled that the trial judge did not abuse his discretion in holding that the potential confusion and prejudice associated with admitting this evidence out-weighed its probative value. 

Lastly, the Court ruled that the trial judge could properly allow testimony regarding  errors made by the defendant surgeon that did not cause injury, but only to the extent this evidence was necessary to an explanation of the treatment afforded, and only with a clear instruction to jurors that breaches of the standard of care that did not cause injury cannot be the basis for a damage verdict.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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