The Michigan Supreme Court recently ruled in Rock v. Crocker on two unique evidentiary issues arising within a medical malpractice context – admissibility of standard-of-care evidence and qualification of an expert witness.
In September 2008, the plaintiff in Rock sought treatment from the defendant orthopedic surgeon for a fractured right ankle. Dr. Crocker performed surgery on the ankle and provided post-surgical care, and a month after the procedure, he advised the plaintiff that he could start bearing weight on his right leg. The plaintiff alleged that because the surgery failed to unite all the pieces of the fracture, he was forced to undergo a second operation by Dr. David Viviano, another orthopedic surgeon, to correct the problem. In June 2010, the plaintiff filed suit against Dr. Crocker, claiming that he committed ten separate acts of professional negligence associated with his medical care and treatment.
Attached to the complaint was an affidavit from Dr. Antoni Goral stating that the defendant breached the applicable standard of care by not using enough screws or the proper length plate to treat the fracture, and prematurely allowed the plaintiff to begin bearing weight on his ankle. Dr. Goral later admitted that neither of the breaches resulted in the plaintiff’s injuries, which prompted the defendant’s motion to strike the two allegations. Additionally, the plaintiff introduced Dr. Viviano as an expert witness regarding the standard of care. Dr. Viviano was board-certified at the time of the alleged malpractice, but not at the time of his testimony, prompting another defense motion to exclude Dr. Viviano from testifying pursuant to the expert witness requirements of MCL 600.2169(1)(a).
The trial court denied the first motion, finding that Dr. Goral’s testimony was relevant to the issue of the defendant’s general competency, and that “the prejudice posed by this evidence did not substantially outweigh its probative value” under the Michigan Rules of Evidence, and MRE 403 in particular. Regarding Dr. Viviano’s qualifications, the trial court granted the defendant’s motion, finding that because his board certification lapsed after the time of the alleged malpractice, he did not meet the requirements imposed by MCL 600.2169(1)(a) and could not testify about the applicable standard of care. After an interlocutory appeal to the Michigan Court of Appeals, the Michigan Supreme Court granted leave.
With respect to the defendant’s two breaches of the standard of care, the Court relied on MRE 404(b)(1), which states:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
According to the Court, even if evidence is logically relevant under MRE 401 and MRE 402, the evidence may be excluded under MRE 404(b)(1) for lacking legal relevance if it does not have a “proper purpose.” The Court left the question to the trial court to determine if evidence of the alleged breaches had a proper purpose that would allow it to then apply MRE 403.
Regarding Dr. Viviano’s qualifications as an expert, the Court reversed the trial court, interpreting the specific phrasing of MCL 600.2912(a)(1) to conclude that the statutory board-certification requirement applies at the time of the occurrence that is the basis for the action, not the time of testimony.
The implications of the Rock ruling are still uncertain, especially its analysis of MRE 401, 402, 403, and 404. That interpretation may provide the means for defendants to exclude evidence at trial in a variety of medical malpractice, personal injury, and other civil matters, as well as criminal cases. We will, of course, continue to monitor developments in this area, and report back in later Newsroom posts.