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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

Michigan Law Firm - Warner Norcross + Judd LLP

In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20141125_C316478_31_316478.OPN.PDF" target="_blank" rel="noopener"><em>Elher v. Misra</em>, No. 316478</a>, the COA vacated its November 25, 2014 opinion and issued a new opinion, which similarly ruled that a doctor’s conclusions regarding the standard of care was reliable despite his inability to identify peer-reviewed literature or other physicians in the community who supported his position. For a summary of the former opinion, click <a href="https://www.wnj.com/updates/coa-holds-that-expert-testimony-on-the-standard-of-care-need-not-be-supported-by-peer-reviewed-literature-or-general-acceptance-in-the-community/" target="_blank" rel="noreferrer noopener"><u>here</u></a>.

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The Defendant, Dr. Misra, performed gallbladder surgery on Plaintiff Elher and accidentally clipped the wrong bile duct. Elher filed suit against Dr. Misra for medical malpractice and offered testimony from Dr. Priebe, who asserted that Dr. Misra’s conduct fell below the standard of care. Dr. Priebe could not provide literature or proof of general acceptance in the community to support his conclusions. Dr. Misra also offered an expert who took the position that Dr. Misra’s actions did not breach the standard of care. The trial court excluded Dr. Priebe’s testimony on the basis that it was unreliable.

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The Court of Appeals held that Dr. Priebe’s surgical experience with gallbladder surgeries and board certification as a general surgeon qualified him as an expert in the standard of care for laparoscopic surgeries. The Court opined that a court must rely on the specific factual context of the case to determine which reliability factors apply. The Court then ruled that the trial court abused its discretion by relying on the “peer review” and “general acceptance” prongs as reasons to exclude Dr. Priebe’s testimony because they were not pertinent in this case. It reasoned that, if an expert’s analysis is based on scientific principles, knowledge, experience and training, then the testimony might fulfill the reliability standards even in the presence of conflicting conclusions. The Court stressed that the clash of opinions in this case are exactly what a jury is designed to resolve.

Therefore, the Court of Appeals affirmed in part the trial court’s conclusion that a res ipsa loquitur theory does not apply to this case and reversed in part the trial court’s holding to exclude the expert’s testimony and remanded for further proceedings.

Partner

Jason L. Byrne

Labor and Employment

COA vacates recent opinion on admissibility of expert medical testimony and reaches the same conclusion that surgeon was qualified to testify about the standard of care

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COA vacates recent opinion on admissibility of expert medical testimony and reaches the same conclusion that surgeon was qualified to testify about the standard of care

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