Medical malpractice; Expert witness as to the standard of care (SOC) in laparoscopic cholecystectomy procedures; Woodard v. Custer; MRE 702; MCL 600.2955; Claim that the expert testimony stated a “negligence per se” standard; Jones v. Porretta; Claim that all the factors under MCL 600.2955 were not met; Elher v. Misra; Claim that Elher was “incorrectly decided”; MCR 7.215; Claim that the Elher majority ignored the mandate in Edry v. Adelman

The trial court abused its discretion when it struck the plaintiff’s expert witness, and erred in granting the defendants’ motions for summary disposition. “During plaintiff’s laparoscopic cholecystectomy surgical procedure, clips used to close the cystic duct to the gallbladder were improperly placed and blocked the common bile duct, necessitating a second surgery and extensive medical treatment.” Plaintiff sued for medical malpractice, alleging in pertinent part that defendant-Lorenzo breached the SOC by not recognizing that the surgery had been performed improperly. The court held that plaintiff’s expert (Dr. M) was a reliable expert witness and able to testify as to the SOC in a medical malpractice case involving laparoscopic cholecystectomy surgery. It disagreed with the trial court that M’s testimony must be excluded because it stated a “negligence per se” standard. In this case, there was expert testimony so Woodward and Jones were inapposite. M’s opinion was “not that the surgeons were negligent merely because plaintiff was injured, but rather that the surgeons must have been negligent because a clip does not end up on the common bile duct unless someone is not using due care by following the stated precautions.” Also, as to the trial court’s holding that all the factors under MCL 600.2955 were not met, the trial court abused its discretion under the reasoning set forth in Elher. The dispute here was identical to that in Elher. M’s theory was that the “plaintiff’s common bile duct was clipped because her surgeon failed to exercise due care to ensure that it was not clipped.” Defendants argued that the “surgeons exercised due care and that the bile duct became clipped because it is an inherent risk.” Just like in Elher, the parties agreed that the SOC “is what a reasonable surgeon would do under similar circumstances.” Also, like in Elher, the real dispute was “whether clipping the common bile duct under the circumstances here constitutes a breach of that standard.” Finally, defendants argued that Elher does not control because it was “incorrectly decided.” Having “performed 2500 laparoscopic cholecystectomy procedures and being a board certified general surgeon” made M “qualified to give an opinion as to what is required of a reasonable surgeon under similar circumstances.” As the Elher court pointed out, “this is not something than can be subject to testing and replication—this is” the SOC. Reversed and remanded.