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)

A notice-of-claim case illustrating how not to do a number of things.

Slaughter, a security guard at the Superior Court and some Justice Courts, sued the County for discrimination. The County argued that she was not its employee but instead the State’s and moved for summary judgment. The trial court ruled that there was an issue of fact about whether the County acted as the State’s agent. Slaughter then amended her Complaint to name both the County and the State. The State moved to dismiss because her notice of claim had been directed to the County. She asked for time for discovery to prove that she had somehow asserted a valid State claim, which the court granted. But she never did any discovery. So the State eventually moved again on the notice-of-claim issue and both State and County moved to dismiss for failure to prosecute. The motion was granted. Slaughter appealed.

Having taken four years (that’s how long the case had lasted by that point) to not figure out who employed her, she then didn’t figure out how to appeal. Instead of including transcripts in the record on appeal she attached them to her brief. But the defendants didn’t object, so the Court of Appeals accepted them.

Slaughter argued that because the County was arguably the State’s agent for purposes of her employment it was also the agent for purposes of receiving a notice of claim. But the notice-of-claim statue requires service on the person identified by the Rules of Procedure, Rule 4.1 provides that the State is served by delivery to the attorney general, so serving the County didn’t satisfy the rule or statute. The court distinguishes Ames, which let a plaintiff bring in the DOT without a notice of claim because he had already sued the Corporation Commission in the same action and so the State had notice anyway. Lest anyone think it too mean, the court adds that Slaughter had been told of her mistake in 2005 and again in 2006 and had done nothing about it.

The Court upholds with little problem the dismissal for failure to prosecute. She hadn’t in four years done anything. Why the case clunked along so haphazardly for so long, and how it stayed on the active calendar, are the kinds of mysteries that turn up too often.

(link to opinion)