Medical malpractice; Cox v Flint Bd of Hosp Managers; Affidavit of merit (AOM); MCL 600.2912d(1); Expert testimony; MCL 600.2169; Woodard v Custer; Standard of care (SOC)

The court held that the trial court erred by failing to strike plaintiff’s expert witness (S) as he was not qualified to give SOC testimony against defendant-doctor. Plaintiff sued defendant for medical malpractice alleging he performed a post-operative procedure to control pain without his consent, causing him harm. The trial court denied defendant’s motion to strike S’s expert testimony, noting “it was clear that a pain-medicine procedure was at the heart of plaintiff’s action, and, consequently, pain medicine was the one most relevant specialty.” On appeal, defendant argued that the trial court erred by finding S was qualified to testify against him because although they were both “board-certified in anesthesiology and pain medicine, [defendant] was practicing anesthesiology at the time of the alleged malpractice,” while S devoted 100% of his time to the practice of pain medicine. The court agreed. “Although a pain-medicine procedure was used, the particular nerve block [defendant] employed is most commonly used by anesthesiologists in connection with surgeries.” Indeed, S “acknowledged that he had not performed a femoral nerve block in at least 12 years because ‘operating room anesthesiologists are typically the ones that are providing those services.’ While such regional nerve blocks are typically placed preoperatively, anesthesiologists occasionally perform them postoperatively. When the procedure to control plaintiff’s pain is viewed within the context of the underlying surgery, it becomes evident that the one most relevant specialty is anesthesiology and not pain medicine.” Moreover, in the year immediately preceding the date of the alleged medical malpractice, S “had not devoted the majority of his professional time to either the active clinical practice of anesthesiology or to the instruction of students in anesthesiology.” Finally, plaintiff’s action “encompassed not only the events that took place after the surgery on his fractured patella and immediately before the nerve block was performed, but also events that occurred before the surgery when plaintiff allegedly stated his desire for no regional nerve blocks.” The postoperative nerve block “cannot be viewed in isolation or in a vacuum given the nature of plaintiff’s lawsuit; rather, all of the circumstances surrounding the surgery must be considered, and it was the practice of anesthesiology and not pain medicine that was the relevant specialty when the circumstances are viewed more broadly, as is appropriate in this case.” Reversed and remanded.