Monday, September 01, 2008
By Dan Schulte, J.D.
MDA Legal Counsel
From the September 2008 issue of the Journal
Question: I remember reading about a dental malpractice case in one of your previous columns. In that case, the plantiff attempted to have an endodontist serve as her expert witness. The defendant was a general dentist. I thought the court decided that a specialist could not testify against a general dentist. Is that correct? Has that changed recently?
Answer: You have a good memory. The column you are referring to was published in October 2002. It dealt with a then-recent decision of the Michigan Court of Appeals. The plaintiff in that case suffered severe pain and other serious complications following a root canal procedure. She sued, alleging that the cause was the general dentist’s failure to meet the standard of practice when drilling, cleaning, filling and packing the root canal. The plaintiff hired a certified and full-time practicing endodontist who gave this opinion. The Court of Appeals, construing Michigan’s Expert Witness Qualification Statute, ruled that a specialist could not testify against a general dentist. The court correctly required that the plaintiff’s expert must have devoted a majority of his or her professional time to active clinical practice as a general dentist during the year immediately preceding the date of the alleged act of malpractice. The endodontist expert witness in that case did not satisfy the requirement.
In the years that have followed that decision, the Michigan appellate courts have been fairly consistent in requiring that when the defendant is a general practitioner the expert witnesses must also be general practitioners. All this may have changed earlier this year with the Michigan Supreme Court’s decision in Reeves vs. Carson City Hospital. In Reeves, the defendant physician was board-certified in family medicine but practicing in the Carson City Hospital Emergency Room at the time of the alleged act of malpractice. The Court of Appeals allowed the board-certified expert in emergency medicine to testify against a defendant who was board-certified in family medicine, reasoning that at the time of the alleged act of malpractice emergency medicine was being practiced, and that therefore that specialty was more “relevant” than the defendant’s speciality. This was contrary to what many believed the expert witness qualification statute required (i.e., a peer-to-peer matching of the qualifications of the expert witness with qualifications of the defendant, regardless of the fact that the defendant may have been practicing outside his/her specialty at the time of the alleged act of malpractice).
Surprisingly, the Michigan Supreme Court (in a two-sentence order) upheld the Court of Appeals decision
The full impact of the Reeves decision will not be known until further expert witness qualification cases work their way through the appellate courts. Whether a dentist who holds a specialty certification and limits his or her practice to that specialty will be allowed to provide expert testimony against a general dentist alleged to have committed malpractice while engaging in the practice of that specialty remains to be seen. It is now more likely that a certified and full-time practicing endodontist will be allowed to testify against a general dentist alleged to have committed malpractice while performing a root canal.
The Reeves decision certainly has the potential to expand the population of potential expert witnesses for plaintiffs in dental and medical malpractice cases.