Estate of Luella Ehrlinger v. Phillip a Dean Md
334243
| Mich. Ct. App. | Jan 9, 2018Background
- Decedent Luella Ehrlinger underwent colorectal surgery performed by Dr. Phillip Dean; postoperative leakage and a second surgery followed, after which her condition worsened, leading to death on September 7, 2009.
- Plaintiff alleged malpractice by Dean for inadequate post-surgical monitoring, especially on August 4, 2009, causing cardiopulmonary arrest and decline.
- Defendants moved to dismiss based on an allegedly defective affidavit of merit and statute-of-limitations issues; plaintiff sought to amend affidavits and pleadings and conceded many claims tied to the surgeries themselves.
- This Court limited plaintiff’s claim on remand to alleged breaches of the general surgery standard of care for post-operative monitoring after the second surgery (August 4 onward).
- On remand the trial court granted summary disposition because plaintiff’s designated expert, Dr. Ralph Silverman, though board-certified in general and colorectal surgery, devoted a majority of his recent practice to colorectal surgery and thus did not meet MCL 600.2169’s active-practice requirement for testifying about general surgery; plaintiff’s belated request to reinstate Dr. Todd Campbell as her general-surgery expert was denied as untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dr. Silverman was qualified to testify to the general-surgery standard of care under MCL 600.2169 | Silverman is board-certified in general surgery and colorectal surgery and thus qualified | Silverman’s practice was predominantly colorectal surgery, so he did not devote a majority of his time to general surgery as required | Court held Silverman unqualified because majority of his recent practice was colorectal, so summary disposition was proper |
| Whether the trial court abused discretion by denying reinstatement of Dr. Campbell as expert | Campbell (a general surgeon) should be allowed to replace Silverman as plaintiff’s general-surgery expert | Plaintiff missed scheduling deadlines; Campbell was not listed in final witness list and request was untimely | Court affirmed denial: trial court did not abuse discretion in refusing belated substitution under scheduling order |
| Whether prior appellate rulings limited plaintiff’s claims to general surgery post-op care | Plaintiff argued prior review concerned only affidavit of merit and did not preclude other theories | Defendants relied on plaintiff’s concessions and this Court’s prior instruction limiting claims to general surgery post-op care | Court applied law-of-the-case and plaintiff’s prior concessions, holding claims are limited to general-surgery post-op care |
| Standard of review applicable to expert qualification and witness-list enforcement | Plaintiff urged reversal of trial court’s discretionary rulings | Defendants urged deference to trial court under abuse-of-discretion standard | Court applied de novo to statutory interpretation and abuse-of-discretion to witness/expert rulings; found no abuse of discretion |
Key Cases Cited
- Peters v. Dep’t of Corrections, 215 Mich. App. 485 (discussing standard of review for summary disposition)
- Tate v. Detroit Receiving Hosp., 249 Mich. App. 212 (statutory interpretation de novo)
- Maldonado v. Ford Motor Co., 476 Mich. 372 (abuse of discretion explained)
- Woodard v. Custer, 476 Mich. 545 (specialist may devote majority of professional time to one specialty)
- Driver v. Hanley (After Remand), 226 Mich. App. 558 (law-of-the-case doctrine)
- Carmack v. Macomb Co. Cmty. Coll., 199 Mich. App. 544 (deference to trial court on witness-list decisions)
- Schellenberg v. Rochester, 228 Mich. App. 20 (court will not search for uncited authority)