Awsienko v. Cohen (CA1 5/12/11)

The statute says that an expert witness in a malpractice action against a board-certified specialist must be a board-certified specialist. The main question here is whether the witness had to be so at the time of the events giving rise to the claim. The Court of Appeals says “no.”

When Plaintiff’s husband/father died they sued his cardiologist and nephrologist. Their expert witness was an internist who hadn’t become board-certified in nephrology until after the death. So the defendants moved for summary judgment – the cardiologist because the expert wasn’t one, the nephrologist because the expert had become one too late. The trial court granted summary judgment.

The Court of Appeals affirms as to the cardiologist but reverses as to the nephrologist.

The statute says an expert against a specialist must have been specialist at the time of the occurrence. The next sentence says that a specialist against a board-certified expert must be board-certified – but doesn’t say when. The Legislature could have had it wanted to. “When “the legislature has used a particular term in one place in a statute and has excluded it in another place in the same statute, a court should not read that term into the provision from which the legislature has chosen to omit it.”

The court also tells us that because the certification process takes awhile, a witness could have sufficient expertise even if certification came “a day or a week after the incident.” In this case it apparently came a year later, which makes this not the best argument to base the opinion on. However, in context the point is that the statute’s wording is consistent with a rational legislative intent.

As to the cardiologist, Plaintiffs argued that he “never asserted” that he was board-certified. But the statute talks about what the doctor is, not what he “asserts.” Plaintiffs also argued that the witness’s criticisms of the cardiologist “were unrelated to cardiac treatment.” The court says that “the statute contains no such exception.” (The court also agrees with the cardiologist that the witness did not criticize him at deposition, although it does some fact-finding to get there.)

Plaintiffs had asked, in the alternative, for more time to get a new expert, arguing that the statute gives a plaintiff has a reasonable time to cure an insufficient preliminary affidavit. But in this case the time for expert discovery had passed and the witness had been deposed. Why the affidavit hadn’t been challenged isn’t explained but you can draw your own conclusion.

(link to opinion)