Albro v. Drayer
846 N.W.2d 70
Mich. Ct. App.2014Background
- Plaintiff underwent an ankle surgery (Chrisman–Snook) performed by Dr. Steven Drayer; the procedure failed and plaintiff developed a post‑operative infection requiring further corrective surgeries with incomplete recovery.
- Plaintiff sued for medical malpractice, alleging improper preoperative evaluation, misdiagnosis, an unnecessary and inappropriate choice of the Chrisman–Snook over the Broström procedure, technical errors in surgery, and inadequate postoperative infection management.
- Defendant conceded the procedure was performed and failed and that an infection occurred but maintained that risks and failures do not alone establish malpractice and that his care met the applicable standard.
- At trial defendant presented three expert witnesses who regularly performed ankle reconstructions but had little or no recent personal experience performing the Chrisman–Snook procedure; they nevertheless were familiar with the technique from literature, teaching, or discussion.
- Plaintiff moved to strike defendant’s experts (or parts of their testimony) for lack of qualification and objected to an expert’s testimony suggesting roughly one‑third of certain surgeons use the Chrisman–Snook approach; the trial court admitted the experts and the testimony, the jury found for defendant, and plaintiff appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Qualification of defendant’s experts to opine on standard of care | Experts lacked sufficient, recent personal experience with the Chrisman–Snook and thus were unqualified | Experts were board‑certified ankle reconstruction specialists, familiar with the procedure through literature/teaching, and competent to opine under MRE 702 and MCL 600.2169 | Court affirmed trial court: experts’ gaps go to weight, not admissibility; they were sufficiently qualified and admission was not an abuse of discretion |
| Whether identical procedural experience is required between party and expert | Plaintiff urged a rule requiring identical experience between surgeon and expert | Defendant argued no such rule exists and requiring it would preclude most expert testimony | Court refused to create such a rule and held identical experience is not required; admissibility depends on relevant expertise |
| Admissibility of expert statement that "a third" of surgeons use the Chrisman & Ankle procedure | Plaintiff argued the numeric statement lacked foundation and was speculative | Defendant’s expert relied on general familiarity with community practice and literature | Court held the unsupported numeric estimate should have been struck but its admission was harmless error given cumulative testimony and lack of prejudice |
| Whether testimony that practitioners do what they are best at improperly defines standard of care | Plaintiff contended this description could misstate statutory/jury definitions of standard of care | Defendant’s expert explained both procedures have pros/cons and surgeons often choose what they perform best; expert relied on literature and practice norms | Court found the expert’s explanation consistent with statutory and jury definitions of specialty standard of care and did not err |
Key Cases Cited
- Craig v. Oakwood Hosp., 471 Mich. 67 (discusses standard of review for evidentiary rulings)
- Woodard v. Custer, 476 Mich. 545 (expert qualification review is for abuse of discretion)
- People v. Hawthorne, 293 Mich. 15 (historical authority on expert qualification)
- McEwen v. Bigelow, 40 Mich. 215 (historical authority on expert qualification)
- Gilbert v. DaimlerChrysler Corp., 470 Mich. 749 (distinguishes admissibility vs weight where expertise is limited)
- Wischmeyer v. Schanz, 449 Mich. 469 (gaps in expertise generally affect weight not admissibility)
- People v. Gambrell, 429 Mich. 401 (supporting principle on cross‑examination and weight)
- Swanek v. Hutzel Hosp., 115 Mich. App. 254 (expert excluded where specialty standard changed rapidly and expert lacked contemporaneous knowledge)
- Marietta v. Cliffs Ridge, Inc., 385 Mich. 364 (frequency of practice not determinative of standard of care)
- Detroit/Wayne Co. Stadium Auth. v. Drinkwater, Taylor & Merrill, Inc., 267 Mich. App. 625 (harmless‑error analysis)