A man underwent a shoulder replacement procedure. He sued the orthopedic surgeon for medical malpractice. He filed an affidavit of merit executed by a board certified orthopedic surgeon.
The man’s expert indicated during his deposition that he did not operate as a general orthopedic surgeon. 99.9% percent of the expert’s active clinical practice was devoted to the hands and upper extremities. More than 60% of this work was devoted to treating and performing surgeries relative to shoulder-and-elbow problems, with over 50% of his practice being devoted solely to treating and repairing shoulders. Less than 50% of his practice was devoted to treating and performing surgeries of the hand.
The Ogemaw Circuit Court granted summary disposition in favor of the defendant orthopedic surgeon. The trial court found the expert had not devoted a majority of his professional time to the active clinical practice of orthopedic surgery or to the instruction of students in that specialty, during the year immediately preceding the alleged malpractice.
The Court of Appeals of Michigan reversed and remanded. The court held that the expert was qualified to testify as a standard-of-care expert against the orthopedic surgeon and was thus qualified to sign the affidavit of merit.
The expert was qualified to testify as a standard-of-care expert against the orthopedic surgeon and was thus qualified to sign the affidavit of merit. To be qualified to testify as a standard-of-care expert, the expert must have devoted a majority of his or her professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing the specialty that the defendant physician was practicing at the time of the alleged malpractice. The expert’s deposition made clear that he focused on shoulder and shoulder-and-elbow surgeries. No board certification was available in the category of shoulder surgery. The alleged malpractice pertained to the active clinical practice of treating problematic shoulders and performing shoulder-related surgeries, just like the expert performed.
The Court of Appeals of Michigan reversed the trial court’s grant of the orthopedic surgeon’s motion to dismiss on the ground that the plaintiff’s expert was not qualified to sign the affidavit of merit.
See: Langley v. Rubert, 2015 WL 7750183 (Mich.App., Dec. 1, 2015) (not designated for publication).
See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements