Exclusion of Medical Expert for Alleged “Negligence Per Se” Standard Reversed

A general surgery expert witness who testified that an "… injury to the common bile duct during a laparoscopic cholecystectomy is always due to negligence" was not opining, as the trial court had found, tantamount to a "negligence per se" standard, the Michigan Court of Appeals has ruled, reversing the trial court's rejection of the surgeon's testimony.

In Hooks v. Ferguson, Mich. App., Jan. 5, 2016, the defendant, Dr. Ferguson, performed a laparoscopic cholecystectomy (gall bladder removal) during which he improperly placed clips to close the cystic duct, clipping the common bile duct and injuring it, requiring a second surgery and extensive medical treatment.

The expert witness, Leonard F. Milewski, M.D., stated in his deposition that "… injury to the common bile duct during a laparoscopic cholecystectomy is always due to negligence." The defendant argued that was tantamount to a "negligence per se" standard, an argument the trial court accepted.

The appeals court rejected that argument, finding that Milewski's opinion "… was not that the surgeons were negligent merely because plaintiff was injured, but rather that the surgeons must have been negligent because a clip does not end up on the common bile duct unless someone is not using due care."

The defense also had challenged Milewski's opinion under MCL 600.2955, the admissibility of an expert opinion, and the trial court had agreed that the opinion did not meet all the statutory factors for admissibility.

The appeals court disagreed, noting that admissibility of expert testimony in a medical malpractice case was governed by MCL 600.2955 and MRE 702. Factors under MCL 600.2955 such as "testing and replication" did not apply in this case. The real dispute was the standard of care. As Dr. Milewski was a board certified general surgeon who had performed some 2,500 laparoscopic gallbladder surgeries over 25 years, he was well qualified to give an opinion as to what was required of a reasonable surgeon under similar circumstances.

The trial court abused its discretion by striking Milewski as an expert witness and erred in granting summary disposition, the appeals court found, reversing and remanding the case.