Michigan Appeals Court Agrees That Expert in Medical Malpractice Case Lacked Sufficient Experience, Upholds Dismissal of Complaint

The Michigan Court of Appeals recently affirmed a lower court’s dismissal of a medical malpractice complaint with prejudice due to the expert’s lack of experience.The plaintiffs alleged that Dr. Kenneth Markiewicz, a board-certified specialist in otorhinolaryngology, was negligent while performing a procedure known as a canaloplasty on plaintiff Robert Walworth’s ear canal to remove bony growths. The canaloplasty required Dr. Markiewicz to use a rotating “Skeeter” drill to remove the bony growths. Following the October procedure, the plaintiff discovered that he had lost virtually all hearing in his right ear. The plaintiffs’ theory of the case was that Dr. Markiewicz allowed the Skeeter drill to contact Walworth’s eardrum, injuring it and resulting in hearing loss.

The defendants’ theory of the case was that Dr. Markiewicz did not touch the plaintiff’s eardrum with the Skeeter drill and had taken precautions to avoid doing so. Furthermore, the defendants contended that the potential of having the Skeeter drill contact a patient’s eardrum during the canaloplasty procedure is a known potential complication or risk. According to Dr. Markiewicz, he had explained to the plaintiff that in “any ear surgery there is potential for hearing loss, and that can be anything from a subtle change to complete loss of hearing.”

In December 2013, the plaintiffs filed a medical malpractice action in Kent County Circuit Court against Dr. Markiewicz and his professional corporation. The plaintiffs’ complaint was accompanied by an affidavit of merit regarding the standard of care and its alleged breach, signed by Dr. Donald Kitain, who is also board-certified in otorhinolaryngology.

Dr. Kitain was deposed in November 2014. Although Dr. Kitain holds the same board-certified specialty as Dr. Markiewicz, he testified in his deposition that he had virtually no experience performing the procedure at issue. Although Dr. Kitain claimed to have knowledge regarding the standard of care for performing canaloplasty because he performs other surgeries in and around the ear anatomy, he acknowledged that he does not perform surgery involving the temporal bone, which was the source of the bony growths removed during the canaloplasty procedure. Furthermore, Dr. Kitain does not use the type of surgical instrument used during the canaloplasty, the Skeeter drill.

In April 2015, the defendants moved to strike Dr. Kitain as the plaintiffs’ sole standard of care expert witness and to dismiss the plaintiffs’ case. The motion was heard and granted on May 8. In addition to arguing that Dr. Kitain was qualified under the law, the plaintiffs also argued that even if Dr. Kitain were struck as a standard of care expert, the plaintiffs could establish the standard of care consistent with their theory of the case by an admission Dr. Markiewicz made during his deposition.

After hearing the arguments of counsel, the trial court ruled from the bench that Dr. Kitain was not qualified to offer standard of care testimony. The court reasoned that Dr. Kitain had never done this procedure. He only observed it maybe six times, almost 30 years ago. He had not spoken on it or written any articles on it. He had never used the type of drill that was used in this surgery. The judge found that “this lack of experience in these areas is so significant, I don’t believe this individual is qualified to give an opinion with regard to standard of care in this area.”

The trial court also rejected the plaintiffs’ argument that they could prove their case without a standard of care expert. Additionally, the trial court denied the plaintiffs’ request to add a substitute standard of care expert, noting that trial was fast approaching and that discovery had closed. Therefore, the trial court granted the defendants’ motion.

The appeals court found that the record supported the trial court’s reasonable and principled determination that Dr. Kitain lacked sufficient “knowledge, skill, experience, training, or education,” pursuant to MRE 702, with respect to performing the canaloplasty procedure to render a reliable opinion regarding the standard of care. Thus, the court held, the trial court did not abuse its discretion in striking Dr. Kitain as the plaintiffs’ sole standard of care expert.

The appeals court further held that since the trial court did not abuse its discretion by striking Dr. Kitain as the plaintiffs’ standard of care expert, the court properly dismissed the plaintiffs’ complaint. In a medical malpractice case, the court explained, the plaintiff bears the burden of proving:  (1) the applicable standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4) proximate causation between the alleged breach and the injury.

For these reasons, the appeals court affirmed the judgment.

The medical malpractice attorneys at the Neumann Law Group represent victims of accidents throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.

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