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by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the October 2002 issue of the Journal

Question: I'm a general dentist and I also perform root canal treatment. Recently, I had a patient who had a bad outcome. The patient went to an endodontist, who completed the root canal. I believe I conformed to the standard of practice, but the patient says that the endodontist has a different opinion. Can I be held liable based upon the endodontist's opinion?

Answer: Your case is similar to a recent case decided by the Michigan Court of Appeals. In that case the plaintiff needed a root canal and a general dentist performed the root canal procedure. The plaintiff then experienced pain and was instructed to return to the general dentist's office, where he received three successive injections of Novocain. Following this, the plaintiff became cold, began to shake and eventually stopped breathing. The general dentist administered cardiopulmonary resuscitation and the plaintiff was taken to a hospital. The plaintiff recovered the following day and an endodontist repaired and completed the root canal begun by the general dentist.

In order to commence a malpractice action against a dentist, the plaintiff must file an affidavit of merit. This is a requirement under the Michigan malpractice reform legislation that became effective April 1, 1994. The statute requires that the plaintiff, in an action alleging malpractice, file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under the expert witness qualification statute.

This statute, which is also part of the malpractice reform legislation, provides that a person shall not give expert testimony in a malpractice case on the appropriate standard of practice or care unless the person is licensed and meets certain criteria. If the defendant is a general practitioner, the expert witness must have devoted a majority of his or her professional time to the active clinical practice as a general practitioner during the year immediately preceding the date of the occurrence. A more detailed explanation of the affidavit of merit requirement is covered in the "Dentistry and the Law" column published in the July/August 2000 issue of the Journal.

In the case decided by the Michigan Court of Appeals, the plaintiff argued that the endodontist expert witness was familiar with the standard of practice of a general dentist, and that the endodontist opined that the defendant general dentist breached the standard of practice by failing to properly drill, clean, fill or pack the root canal. The endodontist further opined that this was the proximate cause of the plaintiff's pain and other damages. The plaintiff argued that the endodontist should be able to testify on the issue of root canals for the reason that the endodontist is a true expert in the area and to preclude such testimony would lead to an absurd result. The court determined that a general practitioner is commonly defined as a practitioner whose practice is not limited to any specific branch of dentistry, and a specialist is a practitioner who deals only with a particular class of diseases, conditions or patients. The court concluded that the endodontist is clearly a specialist and does not meet the requirements of the statute.

The Court of Appeals referred to decisions from the Michigan Supreme Court that preclude a court from utilizing rules of statutory construction to impose different policy choices than those selected by the Legislature.

The Court of Appeals decision is binding precedent in Michigan. Under this decision, the endodontist in your case may not sign the affidavit of merit, which is a condition precedent to filing a malpractice lawsuit. In addition, the endodontist may not testify against you in a deposition or trial as to the standard of practice, or render an opinion that you violated the standard of practice. In order to proceed against you in a malpractice case, the plaintiff would be required to provide an affidavit of merit signed by a general practitioner who meets the qualifications of the expert witness statute in Michigan.

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