Medical malpractice; Expert witness qualifications; MCL 600.2169; Standard of care (SOC); MRE 702; Albro v Drayer

The court held that by “‘apply[ing] an overly narrow test of qualifications in order to preclude [Dr. M] from testifying as an expert,’ the trial court misapplied the law and” abused its discretion. Thus, it also erred in granting defendants summary deposition on the basis that plaintiff “failed to produce admissible expert testimony to support” her claim. On appeal, plaintiff contended “the trial court abused its discretion by concluding that her sole expert witness was not qualified to testify about the requisite” SOC. The court held that there was no dispute that M satisfied “the ‘matching’ requirements of MCL 600.2169(1); he, like [defendant-]Dr. Ruiz, is board-certified in physical medicine and rehabilitation and in pain medicine, and he spent the majority of his time in active clinical practice of those specialties in the year preceding the incident that gave rise to plaintiff’s claim.” While he had not personally “performed the specific procedure involved in this case in over” 10 years, the court held that the trial court’s analysis conflicted with Albro. Here, too, M “has less, or at least no recent, personal experience with fluoroscopic-guided epidural steroid injections, the specific procedure that Dr. Ruiz performed.” But his deposition testimony reflected “that he regularly performs injection therapies. As for the specific procedure used here, he testified that he is trained to do them, has performed them in the past, is ‘very familiar’ with them, treats ‘thousands’ of patients who have had them, and works ‘very closely’ with colleagues in his own practice who perform the procedure which includes discussing patients with them on a daily basis.” Unlike the experts in Albro, M “has not authored publications discussing the procedure, but the overall gist of Albro is that ‘gaps or weaknesses in the witness’ expertise are a fit subject for cross-examination, and go to the weight of his testimony, not its admissibility.’” The court also did “not believe that there are independent grounds for excluding [his testimony] solely because he did not rely on literature.” The court’s analysis was “reinforced by the limited scope of what remained at issue in this case by the time the trial court ruled on defendants’ motion for summary disposition.” The court concluded that Dr. M “is qualified to offer expert testimony regarding Dr. Ruiz’s compliance with the [SOC] in response to plaintiff’s complaints, assuming that plaintiff’s deposition testimony is accurate. Contrary to the trial court’s opinion, [M] is qualified to form an opinion about what kinds of post-procedure complaints should trigger immediate follow-up care, and sharing that opinion would help the trier of fact determine whether Dr. Ruiz breached the [SOC] and caused plaintiff to suffer noneconomic damages during the time in question.” Reversed and remanded.