Michigan law is clear: An expert witness must spend most of his or her time practicing in the same specialty as the physician who testifies against him, doctors say to the Michigan Supreme Court.
In a friend summary, the The Litigation Center of the American Medical Association and State Medical Associations The Michigan Medical Society (MSMS) has asked the state’s highest court to deny the plaintiff’s request to hear a case that would challenge applicable legislation and case law, which could open the door for plaintiffs to call “experts to hire” witnesses at the stand.
The Michigan legislature in 1993 rewrote the 1986 law to make it clear that an expert witness must practice in the same specialty as the defendant, be board-certified in the same specialty as the defendant and dedicate most of his professional time to that specialty in the year before the misconduct occurred alleged behaviour.
Nearly 15 years ago, the Michigan Supreme Court said the expert must pass the “most relevant specialty test,” asserting that the expert’s specialty—the one they practice more than 50% of the time—must match that of the defendant.
“There is nothing wrong or inappropriate in this rule. It does not conflict with the statute; as the summary provided by the AMA Litigation Center and MSMS in the case says, Soliman vs. Colton.
“This court cannot reformulate the law or interpret the 1993 law as if it were the same as the 1986 law. If the plaintiff requests that the law go back to earlier days, the expert could be qualified if he devoted only a significant portion of his professional time in the previous year to misrepresentation. alleged practice to a relevant discipline, he shall direct his argument to the legislature.”
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Antonio Silliman asked the court to consider whether the appeals court had correctly applied Michigan law when it ruled that his expert witness did not meet the qualifications of an expert.
Defendant Jeffrey J. Colton, MD, was practicing facial plastic and reconstructive surgery when he treated Silliman. The plaintiff’s expert testified that the procedure Suleiman underwent was cosmetic and was not performed for a medical purpose.
However, last year, Selliman spent only 10% of his professional time practicing facial plastic and reconstructive surgery. The other 90% of his time was spent practicing otolaryngology, according to court documents.
The law is “specific; it requires that the proposed expert have devoted most of his professional time in the previous year to the alleged malpractice of the specialty that the defendant was practicing at the time of the alleged misconduct. Nothing less than that would suffice,” the summary says.
The AMA Litigation Center and MSMS explained what prompted the state legislature to change the 1986 law governing expert witness testimony. Under the previous law, an expert could be qualified to testify based on his “knowledge, skill, experience, training or education.”
The summary explains: “This standard gave Michigan courts the freedom to determine whether the expert presenting had the familiarity required with the Standard of Care to pass the mobilization of evidence.” Under the 1986 law, experts were allowed to testify if they did not have credentials in the defendant’s specialty and even if the expert had not practiced medicine for decades.
This has led to a proliferation of “experts” who “practice” only in the field of litigation, offer “pay for what you want testimony” and jeopardize the integrity of the judicial process. The resulting “perfect storm” contributed to the high cost of medical malpractice insurance, and physicians’ reluctance to practice specialties high exposure, and consequent deficiencies in the availability of health care,” says the brief for the court.
This is the reasoning that Silliman defends in this case. But his analysis is too late. The 1986 law no longer controls,” the memo urges the Michigan Supreme Court not to hear the case or, if it does, to uphold the appeals court’s decision to dismiss Solomon’s argument.