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Michigan Supreme Court sides with doctors on issue of how much proof it takes to show error is "malpractice."

When Paulette Elher went in for gall bladder surgery, her surgeon, Dwijen Misra, Jr., M.D., got confused and clipped her common bile duct instead of trimming the cystic duct.  He argued that it is hard to distinguish the organic structures in the abdomen during laparoscopic surgery, and therefore this happens once in every few hundred cases.  He argued that under Michigan law, he had not "breached the standard of care" because this mistake can occur even if a doctor isn't "negligent."  Elher hired a physician-professor from Case Western Reserve University who had spent a lifetime performing gall bladders surgeries.  This doctor testified that since the surgeon didn't encounter unusual scarring or inflammation, he breached the standard of care in failing to accurately identify the structures he was cutting.

The Defendants asked the trial judge to strike the woman's expert's testimony, arguing that he could cite no scientific support for his opinion that cutting the wrong organ in this situation is malpractice.  The trial judge agreed, struck the expert testimony and granted summary disposition to the defendant surgeon.  Elher appealed and the Court of Appeals judges who reviewed the case overturned the lower court decision.  The Court of Appeals majority noted the expert's superior credentials, recognized the controversy among surgeons on this question, pointed out that this type of medical opinion is not subject to research or testing, and concluded that it was for the jury to decide how much weight to give the conflicting expert opinions regarding negligence.

The Supreme Court granted leave to appeal and reinstated the trial judge's decision.  The Justices who sided with the doctor and his insurers ruled that regardless of the woman's expert's background and expertise, his opinion wasn't admissible unless he provided medical literature support.  Since he testified that there were no peer-reviewed articles in the medical literature confirming his opinion (because scientific medical literature does not address legal standards like negligence), the Court ruled that he could not offer his opinion at trial.  The Court majority the Court held that "There is no doubt that Priebe...was qualified to testify as an expert based on his extensive experience."  Nevertheless, the Justices concluded that regardless of his background, academic credentials and lifetime experience, his opinion wasn't "reliable" because he couldn't corroborate it with the opinions of other doctors. 

The Court further held that even thought the trial judge erred by focusing on the lack of scientific testing and replication for the expert's opinion, since such testing simply isn't available in this context.  Nevertheless, the majority Justices ruled that the judge's error didn't constitute an abuse of discretion or warrant overturning his decision to strike the expert.  

Thompson O’Neil, P.C.
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