Janice McGill had surgery to relieve pain in her temporomandibular joint (TMJ). Dr. Victor Szymela replaced the joints in her jaw with prosthetic joints. He assured her that the excruciating pain she felt after the surgery would lessen with time. It did not. The surgery also worsened her overbite and failed to correct the “popping” she experienced when she moved her jaw.
McGill consulted Dr. Michael Koslin, who tried to manage her pain conservatively. After three years, Dr. Koslin determined that McGill’s pain was not responsive to treatment. He therefore performed surgery to remove the prosthetic joints. The procedure immediately relieved McGill’s pain.
McGill sued Dr. Szymela for malpractice. She alleged that he failed to explore alternative treatments and installed the prosthetic joints incorrectly.
McGill identified Dr. Louis Mercuri as an expert witness. The trial court excluded Dr. Mercuri’s testimony because he was not qualified as a malpractice expert under Alabama law. Without his testimony, McGill could not prove her negligent surgery claim. The jury ruled against her on her claim that Dr. Szymela negligently failed to explore alternative treatments.
McGill appealed, arguing that Dr. Mercuri was improperly excluded. The Alabama Supreme Court affirmed the exclusion of Dr. Mercuri’s testimony.
Legislative Interference with Choice of Malpractice Experts
Claiming that a nonexistent malpractice litigation crisis was impairing the availability of healthcare, the insurance and medical industries lobbied state legislatures for “reforms” that make it more difficult for malpractice victims to prove their cases. The perceived crisis involved escalating malpractice insurance premiums that were largely unrelated to litigation.
Many see the true crisis as being the extent of medical malpractice in the United States. Studies estimate that no more than one in seven patients who are harmed by malpractice bring a lawsuit to recover compensation for their injuries.
Since doctors are notoriously reluctant to testify against other doctors, several “reforms” protected doctors from liability by narrowing the range of experts who are allowed to testify. As a consequence, doctors who have the knowledge, training, and experience that traditionally qualify an expert to testify are excluded from the pool of available expert witnesses. Laws limiting the availability of expert witnesses often succeed in their intended goal — making it impossible for victims of medical malpractice to obtain compensation for their injuries.
The Alabama Medical Liability Act limits the healthcare providers who are allowed to testify as expert witnesses in a medical malpractice lawsuit. An expert who expresses an opinion about a defendant doctor’s standard of care must be a “similarly situated” healthcare provider. If the defendant doctor is board certified in a medical specialty, the expert witness must be board certified in the same specialty.
Alabama law also requires the expert witness to have practiced in the same specialty within the past year. Since it is easier to find expert witnesses who teach medicine or who have retired from practice, Alabama’s practice requirement serves the insurance industry’s goal of making it difficult for injury victims to find expert witnesses who are willing to testify.
Dr. Mercuri’s Qualifications
The Alabama Supreme Court acknowledged that Dr. Mercuri is “a world-renowned TMJ surgeon, scholar, and surgical instructor” who has been “lifetime-certified by the American Board of Oral and Maxillofacial Surgery.” Unfortunately for McGill, the alleged malpractice occurred in 2014 and Dr. Mercuri retired in 2010.
Since 2010, Dr. Mercuri “devoted himself to research in the field of TMJ prosthetics and to teaching [joint replacement] surgical technique, including supervising students performing surgery on cadavers.” There was no dispute that Dr. Mercuri kept current on surgical techniques and the applicable standard of care.
The question before the court was whether Dr. Meruri met the statutory practice requirement. Dr. Mercuri testified that, as a visiting professor, he performed joint replacement surgery in Brazil with another doctor in 2013. The trial court deemed that testimony to be too vague to establish that Dr. Mercuri had actually “practiced.” Why the court believed that “I performed joint replacement surgery in Brazil” was vague is unclear.
As appellate courts tend to do, the Alabama Supreme Court decided that whether a doctor had “practiced” should be left to a trial court’s discretion. That decision is difficult to justify when the facts are undisputed. Whether Dr. Mercuri “practiced” depends on how that word is interpreted. The court was confronted with a pure question of law but declined to decide what the term “practice” actually means.
Instead, the court said that it has “allowed the contours of trial courts’ discretion to be determined over time, in a case-by-case manner.” There’s nothing wrong with developing the law — not every potential application of a statutory term can be foreseen — but trial courts do not have “discretion” to misinterpret or misapply the law. Once the facts are developed, whether those facts satisfy a legal standard is a question of law that the appellate court should decide without deferring to the trial court.
After reviewing four prior cases, the court decided that it had articulated a “clear” rule: “a court has wide latitude in deciding whether to admit or exclude as witnesses medical experts whose work in the year preceding the breach.” In fact, “we let trial courts do what they want” isn’t a rule at all. The supreme court provided no guidance to trial courts in future cases who must decide whether a doctor who practiced in a foreign country has met Alabama’s “practice” standard.
The supreme court affirmed the trial court’s decision to disallow Dr. Mercuri’s expert testimony, notwithstanding Dr. Mercuri’s undisputed testimony that he “performed” the surgical procedure that was the subject of his testimony within one year prior to Dr. Szymela’s performance of the same procedure. While the supreme court noted that Dr. Mercuri’s “general responsibilities” do not include practicing surgery, the statute only requires the expert to have practiced within the last year, not to have practiced with any particular frequency.
In a footnote, the court also recognized that Alabama allows “highly qualified” experts to testify even if they have not actively practiced within the last year. Because McGill did not expressly argue that Dr. Mercuri was highly qualified, a fact that was never in doubt, the court declined to apply the exception.
The McGill decision assured that a potential victim of malpractice lost her right to ask a jury for compensation because her expert witness, who was well qualified to express an expert opinion, had not engaged in sufficient practice within the prior year to satisfy the trial court. The decision elevates the protection of negligent doctors and their insurers above justice to injury victims.
It may have been difficult to find a better witness than Dr. Mercuri, but the decision stands as a reminder that the best expert witness is not always the right expert witness. A board-certified doctor with lesser qualifications who had performed multiple joint replacements for TMJ patients within the last year would have satisfied the statutory standard. Plaintiffs cannot always benefit from the best expert, but they should always try to find an expert who will be deemed qualified to testify.