Background Facts

Douglas Widmar sustained traumatic injuries when he accidentally crashed his ultralight plane on October 8, 2015. Emergency responders intubated him with an endotracheal ventilator before transporting him to the surgical intensive care unit at William Beaumont Hospital. His injuries included a nondisplaced cervical spinal fracture, other spinal fractures, fractures in both legs, a traumatic head injury, and a punctured lung. An orthopedic team decided to treat the cervical spinal fracture without surgery, by placing the decedent’s neck in a collar while the fracture healed naturally.

He remained on a ventilator until October 21, 2015, when Dr. Frikker made the decision to perform a percutaneous tracheostomy. This procedure is performed bedside rather than in an operating room. The purpose of the procedure is to begin weaning the patient off the ventilator. It is typically done for patients who have been on a ventilator for 14 days or more. Performing a percutaneous tracheostomy on a patient with a cervical spinal fracture carries the risk of displacing the fracture.

Dr. Frikker and Dr. Villalba are board-certified specialists in general surgery and surgical critical care. Dr. Sevak and Dr. Abbott were surgical residents working under Dr. Villalba’s supervision. These four defendants performed the percutaneous tracheostomy procedure on Mr. Widmar. On October 22, 2015, the day after the procedure, he showed signs of paralysis on his right side. The orthopedists treating him decided that the cervical fracture required surgical treatment. The fixation surgery was performed on October 22.

The plaintiff contended in the Michigan medical malpractice wrongful death lawsuit that Mr. Widmar was not quadriplegic before the tracheostomy was performed. In November 2015, Mr. Widmar was discharged from William Beaumont Hospital and admitted to the University of Michigan spinal rehabilitation unit. He was later transferred to a Veterans Administration Hospital in Ohio. He died on February 11, 2017.

Defendants William Beaumont Hospital, Dr. Mark Frikker, Dr. Mario Raul Villalba, Dr. Emily Abbott, and Dr. Shruti Sevak
appealed by leave granted the trial court’s order denying their motion in limine to strike plaintiff’s standard-of-care expert, Dr. Steven Salzman, D.O., and to preclude him from giving expert testimony regarding the standard of care applicable to these defendants.

MCL 600.2169(1) provides, in pertinent part:

In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the
following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is
licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.

The State of Michigan Court of Appeals (“Michigan Appellate Court”) stated in its Per Curiam unpublished opinion filed on November 9, 2023: “We conclude that the one most relevant specialty applicable to these defendants is surgical critical care. Although Dr. Salzman specializes in surgical critical care, because Drs. Frikker and Villalba are board-certified in surgical critical care, and Dr. Salzman is not, Dr. Salzman is not qualified under MCL 600.2169(1)(a) to testify regarding the standard of care applicable to Drs. Frikker and Villalba. However, because Drs. Sevak and Lilly similarly are not board-certified in surgical critical care, Dr. Salzman’s lack of board certification in that specialty does not disqualify him from providing standard-of-care testimony against them. Accordingly, we affirm in part, reverse in part, and remand to the trial court for further proceedings.”

Source Estate of Douglas Widmar v. William Beaumont Hospital, No. 362012.

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