Monday, July 22, 2019

In a Michigan Supreme Court case decided in February 2016, the court gave insight on when a doctor’s expert opinion would be excluded for lack of reliability.  

In the case, Paulette Elher V. Dwijen Misra, Jr., M.D, Et Al, the Plaintiff filed a lawsuit against her doctor after her common bile duct was clipped during surgery to remove her gall bladder.  During the surgery, Paulette Elher, the Plaintiff, underwent emergency surgery to remove the clip.  The doctor, Dwijen Misra, accidentially clipped the bile duct.  The common bile duct is a tube-like anatomic structure in the gastrointestinal tract of organisms.  The common bile duct led to the Plaintiff’s liver. 

The Circuit Court did not allow the testimony of the Plaintiff’s expert witness in the medical malpractice case.  When Elher sued the doctor in Oakland Circuit Court, she engaged Dr. Paul Priebe as a gastroenterology expert witness causation expert. 

Misra filed a motion to exclude Priebe’s expert witness testimony.  The court granted the motion and Elher appealed.  On appeal, the appeals court overturned the trial court’s ruling.  The appeals court was split in the opinion.  The appeals court stated the expert testimony should not be excluded based on three guideposts.  The majority appeals court opinion stated that this medical malpractice case was a difference of opinion between qualified experts and the opinion was outside of the scope of scientific study.  First guidepost:   The appeals court stated there was no testing to support either side’s opinion.  Second guidepost:  The appeals court stated there was no peer-reviewed literature to prove each side’s opinions.  Third guidepost:  The appeals court stated there was no widespread standard of care in the literature in cases like this.  The appeals court concluded Priebe’s expert testimony was admissible. 

When the case went up to the Michigan Supreme Court, the high court reversed the judgment of the appeals court and reinstated the Circuit Court opinion because the expert lacked supporting documents or authority for his opinion.  The expert did not show his opinion was scientifically valid, and subject to peer-reviewed publications. 

During his deposition in the Circuit Court case, Priebe testified that it is always malpractice if the bile duct is injured during a gall bladder removal surgery.  Because the expert did not provide supporting documents or authority, Misra filed a motion for summary disposition arguing  Priebe’s testimony was not reliable.  The Circuit Court stated the Plaintiff only pointed to Priebe’s experience and background to support reliability for the expert’s opinion. 

The Michigan Supreme Court rejected the Plaintiff’s argument that the breach of standard of care was obvious to a layperson and no expert witness testimony was needed.  The appeals court erred when it stated the issue was not studied in peer-reviewed articles.  There was a peer-reviewed article, written by Dr. Lawrence Way.  The Circuit Court did not abuse its discretion by stating there was a lack of evidence regarding the degree of which Priebe’s opinion was accepted widely.  Priebe’s opinion was not reliable or admissible because it lacked supporting literature to support Priebe’s opinion, and there was no other form of support.

Read the Article Here