Supreme Court hears oral argument on Kent County malpractice case


The Michigan Supreme Court Justices during January 13 oral argument included, left to right: Bridget McCormack, Stephen Markman, Robert Young (Chief Justice), Brian Zahra, David Viviano, and Joan Larsen. Not shown, though present, is Justice Richard Bernstein; at far right is Michael Cook, appellate counsel for Dr. Thomas Crocker.

by Cynthia Price
Legal News

On Wednesday, the Michigan Supreme Court heard oral arguments on two important issues in Michigan medical malpractice law based on a case that got started in Kent County.

Or, to state it more accurately, a case that did not ever actually get started in Kent County.

Dustin Rock filed a medical malpractice suit against Dr. Thomas Crocker in 2010, but since then, rulings on pretrial motions by then-Circuit-Court-Judge James Redford have been under appeal, so no trial on the merits has been held.

As the case has made its way to the Michigan Supreme Court, however, it has become clear that resolving the issues will have consequences beyond the matter at hand.

Dustin Rock, whose right ankle was fractured when he was changing the brake pads on a truck, sued Dr. Crocker after the doctor performed surgery in 2008. Following that surgery and Crocker’s post-surgical treatment, Rock moved to the other side of the state and came under the care of Dr. David Viviano. Dr. Viviano performed a second and a third surgery to correct what he deemed an “incompletely reduced” fracture.

Rock then sued Dr. Crocker for malpractice in the original surgery, but ruling on the two motions came before trial got underway.

One motion concerned the eligibility of Dr. Viviano — who, as Chief Justice Robert Young made clear Wednesday, only coincidentally bears the same name as Justice David Viviano — to testify as an expert

Dr. Viviano was, at the time of Rock’s original injury and surgery, a board-certified orthopedic surgeon, which fulfills the statutory requirement that a witness who will testify on standards of care be a specialist in the same area as the medical professional being sued, and be board-certified if the original doctor is board-certified.

At some point afterwards, prior to trial, Dr. Viviano let his board certification lapse and as trial loomed, he had not been recertified.

Judge Redford, who has since been appointed Governor Rick Snyder’s Chief Legal Counsel, ruled that, indeed, Dr. Viviano was not qualified to be an expert witness.

On the other pretrial in limine motion, Redford ruled against the defendant. The plaintiff’s other expert witness, Dr. Antoni Goral, signed an affidavit of merit and testified in his deposition stating that there were a series of things that Dr. Crocker did wrong. The motion asked that two of them be disallowed, because Dr. Goral admitted that neither the “substandard” use of fewer pins than recommended in the operation, nor the likely-incorrect advice he gave regarding when Rock’s ankles could bear weight directly led to  his subsequent injury.

Redford did not agree to disallow the two items. He opined that such testimony had the potential to help jurors gain a more in-depth understanding of what had happened.

The Court of Appeals panel, which consisted of Judges Douglas Shapiro, William Whitbeck and Cynthia Diane Stephens, agreed with him on that motion and disagreed on the other.

Stating, “The Court further finds the conduct by the defendant sought to be excluded is all part of the res gestae of the claims before the Court,” the panel said it did not find that the prejudice of this information outweighed its probative value.

At the Supreme Court, appellate attorney Michael Cook of Collins Einhorn and Farrell took over for his colleague Noreen Slank in arguing on Dr. Crocker’s behalf.

His argument on the two pieces of testimony was that his client’s general competency was not appropriately at issue, but rather whether Crocker had committed a specific act of malpractice.

Justice Richard Bernstein asked him whether, in particular regarding the advice about weight-bearing, it was not all part of the conduct of care and therefore was in the scope of the incident under consideration. Cook replied,  “Over hundreds of years the courts have said that it doesn’t follow that because he did something wrong there, he must’ve done something wrong here.”

Then Justice Bridget McCormack asked Cook why he was pursuing an argument about logical relevancy under MRE 402 and 403, when it would have been easier to make the case for the points being legally impermissible, which had already been conceded, under 404(b). This argument had not been preserved, but Cook said that he thought the logical relevancy arguments led directly to 404(b).

Chief Justice Young entered the inquiry, which went on for a while. Cook later noted that he had clerked for the Chief Justice (from 2007 to 2009) and the challenging questions were “just a continuation of that.”
The justices spent more time on the other question, which was stated as, “Did the Court of Appeals correctly interpret MCL 600.2169(1) in concluding that plaintiff’s standard of care expert, Dr. David Viviano, only needed to match the defendant’s board certification as of the date of the malpractice committed in this case?”

The relevant part of the provision says that a potential expert witness must be a licensed health professional who “(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.”

The discussion entailed a lot of parsing of the grammar, hinging on the term “however” — which Cook argued was intended to indicate that the second sentence represented a “turn” from the first and therefore did not refer back to “at the time of the occurrence”— and the use of the present tense.

The justices offered a number of thought experiments, most indicating they found it exceedingly difficult to apply if the intent was anything other than at the time of the alleged malpractice. When his turn came, Dustin Rock’s attorney, solo practitioner Mark Granzotto, questioned the logic of his opponent’s argument that “is” means “is.” He argued that if that were followed and the person being sued were to change specialties by the time of trial, then the expert witness would have to practice in the changed specialty to match.

Despite the justices’ seeming unanimity about interpretation of the wording, it is, of course, impossible to guess how the court will rule on either question.