Surgery Expert Witness Excluded for Not Being “Active”

A “world-renowned TMJ surgeon, scholar, and surgical instructor” — as described by the appeals court — who was active in research in his field and teaching surgical techniques, was excluded as an expert witness as he was found not to be in “active practice.”

In McGill v. Syzemela, (Ala. 2020 CV-16-901198), an Alabama trial court excluded the plaintiff's oral and maxillofacial surgery expert witness, Louis G. Mercuri, MD, as it found he had not “practiced” in the specialty of the defendant, Victor F. Szymela, MD, in the year that the alleged malpractice occurred. The Supreme Court of Alabama upheld that decision, referring to it as a “close call.”

In this case, the plaintiff, Janice McGill, claimed that Dr. Syzemela failed to properly perform her temporomandibular-joint total-replacement (TJR) surgery. McGill had been experiencing clicking and locking of her jaw and excruciating jaw and ear pain. Dr. Szymela recommended TJR surgery, which he performed in April 2014, installing prosthetic joints. McGill alleged that she continued to experience “popping in her jaw”, exacerbated overbite, and lost sensation in her lips, among other allegations.

Later that same year, she consulted with another oral surgeon, Michael Koslin, MD. Eventually, Dr. Koslin, finding that McGill was unresponsive to pain treatment, surgically removed the prosthesis inserted by Dr. Syzemela and implanted custom joints. McGill alleged that Dr. Koslin's treatment relieved her pain and sued Dr. Szymela, alleging that Dr. Syzmela breached the standard of care for an oral and maxillofacial surgeon. Her husband joined the complaint, alleging loss of consortium.

The trial court excluded Dr. Mercuri as he had “stopped performing surgeries in the United States” four years before the alleged malpractice and his board certification had changed to "retired" status, even though he was admittedly a “world-renowned TMJ surgeon, scholar, and surgical instructor”, active in research in his field, teaching TMJ surgical techniques, and acting as a consultant for a manufacturer of custom TMJ prostheses.

Perhaps the most damning evidence against Dr. Mercuri was his own words, in an email to a colleague, disclosed at trial, where he stated: “'… There is a TMJR legal case in Alabama that I have been consulting on that needs an actively practicing, Boarded [oral and maxillofacial surgeon] with knowledge and experience in [TJR surgery]. I can consult, but cannot be an expert witness because I am retired.'”

On appeal to the Supreme Court of Alabama, McGill argued that the trial court incorrectly concluded that Dr. Mercuri did not meet the statutory qualifications of a “similarly situated health care provider,” noting that Dr. Mercuri's affidavit referenced his involvement with one TJR surgery in Brazil during the relevant time period. The state Supreme Court found the affidavit insufficient as Dr. Mercuri said he "performed" with another doctor and described his role in that surgery as that of a “visiting professor.”

Upholding the trial court's decision, the state Supreme Court described it as a “close call,” but reinforced its opinion that the state's trial courts have “wide latitude” to decide what constitutes “active practice.”

Requiring a medical malpractice expert witness to be in active practice has become more common under state laws in recent years, but the definition of “active practice” has often been ill defined and left to the discretion of trial courts.

Finding a “similarly situated health care provider” under Alabama law can be nearly impossible in medical standard of care cases involving narrow specialties like oral and maxillofacial surgery, given the multiple training, certification and licensing requirements required to match the defendant health care provider's qualifications.

The justification for such laws may seem reasonable to legislators, but at times they may serve to deny any malpractice claims in narrow medical specialties.