THIS OPINION HAS BEEN VACATED

Even we have sympathy for trial judges once in a while. This opinion decides that he made the right decision, then reverses him.

Baker’s daughter died in defendants’ care; he sued for malpractice. But his expert was a hematologist/oncologist and the defendant doctor was a pediatrician, sub-specializing in pediatric hematology/oncology. The trial court ruled that the expert did not qualify under 12-12604 and therefore granted summary judgment for defendants.

The statute requires that the expert “be a specialist who is board certified in [the defendant’s] specialty . . .” The Court of Appeals says that “specialty” is ambiguous and decides that it means a member of a specialty board. It then reads from the web sites of a couple of specialty boards to help decide the case.

To its credit, the court is apparently at least a bit uneasy about this and so throws in a footnote to the web site stuff saying that it can take judicial notice of facts not subject to reasonable dispute even if the trial court didn’t. So, it’s now official: the court can read a web site and decide the case based on that rather than the record or the briefs. And how does it know that what’s there is not subject to reasonable dispute or that it hasn’t missed some site or page with contradictory or qualifying information, especially when the court is doing it’s own factual research not checked by the adversarial, discovery/disclosure process that we used to be told was the cornerstone of our legal system? Just trust the courts, folks; after all, if they weren’t infallible then some joker might have started his own web page pointing out their mistakes.

The court notes that Awsienko used a dictionary rather than medical board web sites to define “specialist.” But that was dictum and, anyway, CA1 tells us that its definition is more refined than Awsienko’s. Web sites are apparently more reliable than dictionaries.

The parties argued that an expert has to be in the same subspecialty as the defendant. The court says that since the statute says “specialty,” that’s what it means, not subspecialty.’ (This means that Baker actually wins this round; see below.)

Baker made the usual sorts of arguments – there was some overlap between the physicians’ training, the expert had studied some pediatrics and would be willing to see pediatric patients, the 17-year-old patient wasn’t really pediatric, etc. But that’s not enough since the statute requires the same specialty.

Baker also argued that the statute abrogates the right to recover damages. We thought we’d been through that one before and it turns out we were right: Governale (2011). Baker’s new argument was that the statute prohibited him from bringing an action because there are only 1800 pediatric hematologists and none of the twenty he contacted would help him. This doesn’t fly because under the court’s analysis he doesn’t need a pediatric hematologist, just a pediatrician. Baker unsuccessfully also tried to make the old, Governale arguments.

Having concluded that the trial court’s grant of summary judgment was correct the court affirms it, right? Wrong; it vacates and “remands for further proceedings consistent with this opinion.”  The opinion does not claim to have changed the law; on the contrary, it insists that it just reads the words the Legislature has used. But because the statute, in the court’s view, allows the use of any pediatrician and Baker didn’t try that, he gets to try again.

Give Baker’s lawyer credit: it apparently didn’t occur to her that the actions of a pediatric hematologist/oncologist could be judged by a pediatrician whose career has been spent treating earaches and giving inoculations. Maybe that’s why the court cuts Baker a break not warranted by any principle of procedure – though she was wrong on the law and wrong on the facts, she tried to be truer to the statute than the court thinks she had to be. Her reward is to have the best of both worlds; she can use any pediatrician on standard of care and will call her hematologist to make up for the pediatrician’s ignorance.

Judge Eckerstrom concurs but adds that he would have the trial judge decide “whether defendant’s specialization in pediatrics was pertinent to the standard of care or practice in treating the patient‟s blood condition.” It would, you see, be “absurd” (a word he uses three times) to judge a pediatrician by the standards of a pediatrician if the patient didn’t really need a pediatrician. The trial court should, it appears, determine (as a matter of fact? as a matter of law? as a matter of judicial notice? maybe he can just read some web sites) what specialty was really the most appropriate (here, a pediatrician or hematologist) and require an expert from it. The majority refers to this “test” as “logical and attractive” even though it rejects (as noted above) the same factual argument because the statute says “same specialty,” quotes legislative history to the effect that the defendant and expert must have the same training, and notes evidence that hematologists and pediatricians have different training and approaches.

(link to opinion)