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June 2022

FBMJ Dismissal – When An Expert Is Not An Expert

Foley, Baron, Metzger & Juip attorney Brian W. Whitelaw successfully obtained the dismissal of a medical malpractice suit in Kent County Circuit Court on June 3, 2022 before the honorable Judge Mark A. Trusock.  Whitelaw defended a Certified Family Nurse Practitioner (NP) and professional corporation, on a theory that she failed to properly diagnose and treat a 20-year-old man with a purportedly infected blood blister, resulting in the need for surgical irrigation and debridement and causing pain, suffering, alleged lifelong disability, and economic damages exceeding $5,000,000.  

Whitelaw argued that Plaintiff’s expert, a Nurse Practitioner (NP) and Board Certified Wound Specialist (CWS) was not qualified to testify against an NP as she admitted in deposition that 90% of her professional time in the year prior to the care at issue was spent in wound care management. As such, she was not primarily practicing in the same health profession as the defendant in accordance with MCL 600.2169. He further argued that a Certified Wound Specialist cannot be considered a “subspecialty” of an NP, as an individual can qualify for the CWS board certification as an MD, DO, RN, NP, PA or even a pharmacist, as long as the applicant has 3-years clinical experience in wound care. The Court agreed with the defense position and on June 3, 2022, granted summary disposition and dismissed the Complaint, holding plaintiff’s expert did not qualify under MCL 600.2169(1)(b).

Although the plaintiff argued his expert was a Nurse Practitioner for 20-years, and therefore her practice as a CWS was irrelevant, the Court relied on MCL 600.2169 which governs qualifications for experts in malpractice cases. It states a proposed expert must have spent a majority (greater than 50%) of his or her professional time in the active clinical practice of the same health profession as the defendant in the year preceding the alleged malpractice. 

For more information on this case, please contact Brian Whitelaw at 734.742.1800.