General surgery standard-of-care expert
Expert class library · Medical malpractice · Either side
A general surgeon who says whether a procedure such as a laparoscopic cholecystectomy, hernia repair or bowel surgery was performed and followed up within the standard of care, often after a bile duct injury, a perforation or a missed leak. Courts examine both qualification, under statutes that require recent experience in the same area of practice, and reliability: an opinion resting only on the surgeon's own experience can be excluded when it is contradicted by the literature, though literature is not required in every case.
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What this expert is retained to answer
- Is the complication one that occurs in careful hands, or does it signal a departure from accepted technique?
- What did the operative report or video show about identification of anatomy before structures were clipped or divided?
- Was the complication recognized and treated promptly after surgery?
- What supports the expert's view beyond personal experience: literature, guidelines, or the practice of other surgeons?
- Does the expert have recent experience with this procedure or with closely related procedures, as the state's qualification rule requires?
Methods
- Operative report and video review
- Comparison with recognized operative techniques such as the critical view of safety
- Postoperative course and complication response review
- Review of surgical literature on complication rates
- Analysis of informed consent discussions
How the testimony is attacked
- Opinion based only on personal experience. Defendants argue that a standard of care opinion needs support beyond the expert's say-so. In Elher v. Misra the Michigan Supreme Court reinstated exclusion of a surgeon's opinion that clipping the common bile duct during a laparoscopic cholecystectomy breached the standard of care, because it rested only on his own views and was contradicted by the published literature.
- Literature is not always required. Plaintiffs answer that the absence of literature is not decisive. In Danhoff v. Fahim the Michigan Supreme Court held that a trial court abused its discretion by excluding a surgical standard of care expert for failing to cite literature without properly weighing the other reliability factors, and explained that Elher turned on the lack of any support at all.
- Experience with the specific procedure. Defendants argue the expert must have performed the exact procedure recently. In Dubois v. Brantley the Georgia Supreme Court rejected that reading and held that a surgeon with extensive experience in other abdominal laparoscopic procedures could qualify to criticize a laparoscopic umbilical hernia repair.
- Different specialty or technique. Courts bar a surgeon from judging a different procedure he is not trained to perform. In Winham v. Reese the Oklahoma Court of Civil Appeals upheld excluding a retired general surgeon experienced in open surgery from criticizing a gastroenterologist's endoscopic sphincterotomy.
- Known complication. Defendants stress that bile duct injury and perforation are recognized risks disclosed in consent forms, so the injury alone does not prove negligence.
What the public record shows
A deliberately narrow CourtListener search, "standard of care" AND surg* AND (cholecystectomy OR "bile duct" OR laparoscop* OR "bowel perforation") AND (Daubert OR "Rule 702"), returned 33 opinions filed since 2015, as of October 4, 2026; broader searches return more. 4 rulings that show how courts handle this class of testimony:
| Outcome | Case | Court | Year | Why |
|---|---|---|---|---|
| Excluded | Elher v. Misra499 Mich. 11 | Mich. | 2016 | The Michigan Supreme Court reversed the Court of Appeals and reinstated the exclusion of a surgeon's opinion that clipping the common bile duct during a laparoscopic cholecystectomy breached the standard of care, because it rested on his own experience alone and was contradicted by peer-reviewed literature. One justice dissented. |
| Exclusion reversed | Danhoff v. FahimDocket No. 163120 | Mich. | 2024 | In a case over a colon perforated during a lateral spinal fusion, the Michigan Supreme Court held the trial court abused its discretion by excluding the plaintiffs' standard of care expert for lack of supporting literature without properly analyzing the reliability factors, and reversed. |
| Exclusion reversed | Dubois v. Brantley297 Ga. 575 | Ga. | 2015 | The Georgia Supreme Court reversed a holding that a surgeon was unqualified to criticize a laparoscopic umbilical hernia repair because he had performed only one such repair in five years, holding that his extensive experience with other abdominal laparoscopic procedures could satisfy the statute. |
| Excluded | Winham v. Reese2017 OK CIV APP 18 | Okla. Civ. App. | 2017 | The Court of Civil Appeals affirmed excluding a retired general surgeon, experienced in open surgery but not endoscopy, from testifying that a gastroenterologist negligently performed an endoscopic sphincterotomy, and held his opinion on a second physician did not reliably show causation. |
Each case links to the free opinion text on CourtListener.
Under amended Rule 702
Since December 1, 2023, Rule 702 says expressly that the party offering an expert must show the court it is more likely than not that the testimony meets each requirement: that it rests on sufficient facts or data, uses reliable methods, and reflects a reliable application of those methods to the case. Questions about the basis of an opinion are no longer automatically matters of weight for the jury. For how the circuits have applied the amendment, see the Rule 702 tracker, which follows each court of appeals; for what that means for preparing or attacking this class of expert, see the guide on amended Rule 702.
Related classes
- Anesthesiology standard-of-care expert
- Medical standard-of-care expert
- Radiology missed-diagnosis expert
Guides
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Last reviewed October 4, 2026. How this page is built: rulings are found by searching court opinions on CourtListener, and each one is read in the opinion before it is summarised here; outcomes are labelled by what the court did with the expert's testimony. No individual expert is named. This page summarises public decisions for orientation and is not legal advice; read the opinion before relying on any ruling.