By Eric Berkman
BridgeTower Media Newswires
DETROIT — A Michigan Court of Appeals panel recently reversed a Wayne County Circuit Court ruling granting a directed verdict for defendants in a dental malpractice case.
In Price v. Callis, the COA determined that plaintiff Michele Price’s endodontist, who discovered the defendants’ alleged negligence in performing a root canal, should have been qualified to testify as an expert.
“We cannot find any reason in the record why [the endodontist] could not testify as an expert endodontist, or why he could not testify as an expert regarding his own expert experience performing root canals,” the opinion stated.
The COA also determined that the trial court should have allowed the plaintiff to reopen the proofs to qualify the defendants themselves as expert witnesses regarding the standard of care.
Judges Jane M. Beckering, Mark J. Cavanagh and Amy Ronayne Krause ruled unanimously in the unpublished opinion.
The case
Price originally went to see defendant Eleni Callis complaining of pain around one of her teeth.
On Oct. 26, 2010, Callis performed a root canal on the tooth. During the procedure, Callis allegedly broke several drill bits, but after the procedure, when Callis took an x-ray of Price’s tooth, the dentist allegedly told the patient that everything “looked good.”
Price claims that after the procedure, her pain was slightly alleviated. But the pain intensified over time, so she went back.
By this time Callis had left the practice, so Price saw defendant Jerry Aronoff, who allegedly reassured her that everything looked fine and that “root canals just sometimes don’t take.”
In December 2013, still in pain, Price consulted with endodontist Jeffrey Dzingle, who told her that x-rays showed metal pieces left behind during the root canal.
In 2015, Price sued Callis and Aronoff in Wayne County Circuit Court. According to her complaint, Callis performed the root canal negligently and the defendants’ fraudulent concealment of Callis’s negligence prevented her from discovering the cause of her pain sooner.
Callis moved for summary disposition, arguing that the complaint was untimely and that Price hadn’t properly pleaded fraudulent concealment.
The trial court denied the motion.
At trial, after Price presented her case the defendants moved for a directed verdict, arguing that Price had failed to provide expert testimony to establish the appropriate standard of care or breach of standard of care.
The trial court granted the directed verdict and Price appealed. Meanwhile, the defendants appealed the denial of summary disposition.
COA analysis
The COA rejected the defendants’ argument that they should have been granted summary disposition on statute-of-limitation grounds, pointing out that medical malpractice claims generally must be filed within two years of the date the claim began to accrue, unless a plaintiff can show fraudulent concealment.
“At a summary disposition stage of proceedings, we must presume that Dr. Callis did leave pieces of broken tooling in plaintiff’s tooth and falsely informed plaintiff that she did not,” the opinion stated. “The trial court properly found that plaintiff had sufficiently pleaded and provided evidence of fraudulent concealment.”
The COA similarly disagreed with the defendants that Price would have discovered the claim sooner with more diligence.
“It was not until December 11, 2013, that plaintiff was informed by an endodontist of the pieces of metal lodged in the root of her tooth that had been left during the root canal,” the panel observed. “Only at that point was there objective information to suggest that plaintiff might have a cause of action.”
Conversely, the panel agreed with Price that the trial court erroneously granted the defendants a directed verdict on grounds that Price failed to provide expert testimony as to the standard of care.
The COA did not believe that Dzingle, who had previously practiced general dentistry, should have been qualified to testify as to the defendants’ standard of care because at the time of the alleged malpractice he was back in school pursuing a specialty in endodontics. Nonetheless, the panel believed he should have been able to testify either as an expert endodontist or as an expert on his own experience giving root canals.
“If the trial court’s ruling was premised on the misapprehension that Dr. Dzingle could not testify as an expert at all, the trial court abused its discretion,” the opinion stated.
The panel further agreed that the trial court wrongly denied, on futility grounds, the plaintiff’s request to reopen the proofs to qualify the defendants as experts for the purposes of their own testimony on the standard of care.
“Defendants’ testimony was replete with statements to the effect that it would be a violation of the standard of care if certain events did or did not take place,” the opinion stated. “There was also evidence in the record that, if believed by the jury, could have reasonably allowed it to conclude that those violations had occurred. Consequently, defendants’ testimony could establish the standard of care, and an expert witness specifically qualified under MCL 600.2169(1)(c) was not mandatory to establish a breach of that standard of care.”
Accordingly, the COA ordered the matter remanded for a new trial.
Attorney comments
Plaintiff’s counsel Mark R. Bendure of Bendure & Thomas in Grosse Pointe Park was pleased with the outcome.
“I think the trial judge was plain wrong, although there are some earlier, poorly written decisions that he could have misread [as standing for] the proposition that you need an expert to draw the conclusion from the facts that there was a violation of the standard of care,” he said.
On the other hand, said Bendure, he and his client believed they could prove what the standard of care was through the defendants’ testimony and then, through the endodontist, prove the facts that would constitute a breach.
“The idea that the defendants could be experts is self-evident,” Bendure continued. “If they’re licensed, they’re still practicing and they know what the standard of care is, I don’t see the controversy.”
Defense counsel Michael J. Cook of Collins Einhorn Farrell PC in Southfield said he disagreed with the panel’s opinion.
First, said Cook, a recent unpublished COA opinion, Harris v. Owens, involved nearly the same facts but reached the opposite conclusion on the statute of limitations issue, holding that the plaintiff in that case should have discovered her claim when she learned an instrument broke during her procedure and experienced physical discomfort she hadn’t felt before
“So we have panels reaching different outcomes on similar facts,” Cook said. “That’s a major problem.”
Additionally, Cook said the plaintiff could have moved to qualify the defendants as experts in the first place, obviating the need to reopen the proofs, but opted not to for trial strategy reasons.
“Her claim was that Dr. Callis wasn’t qualified to do the root canal,” said Cook. “So qualifying her as an expert would have undermined Ms. Price’s entire theory.”
However the COA seemed to think the trial court should have saved Price from the consequences of such a strategy by ordering the proofs reopened, Cook continued.
“I don’t think the trial court was required to throw that life preserver,” he said.
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