Dental malpractice claim dismissed because victim relied on a specialist to criticize general practitioner

Penny Gable sued David M. Kolakowski, DDS, after he alleged botched her root canal.  Her attorneys filed an Affidavit of Merit from a prosthodontist--a dentist who specializes in tooth replacement--attesting to several breaches of the standard of care by Kolakowski.  The case progressed for a number of months before the dentist's insurer sought summary disposition, arguing that the victim's expert was too highly qualified to criticize a general dentist. They did not argue that he did not understand the care given, but rather that he failed to meet the very specific statutory "tort reform" criteria of  practicing the same specialty as the Defendant.

The trial judge granted summary disposition and the victim appealed.  They argued that summary disposition was inappropriate and that, in any event, the dismissal should have been "without prejudice," allowing the victim to file a new suit with an expert who met statutory definitions.  The higher court upheld the lower court's decision that the victim's expert was over-qualified and also rejected the argument that the defendants had waived this defense by delay and  "sand-bagging."  It returned the case to the lower court, however, to determine whether the statute of limitations had run while the case was pending, since it lacked sufficient facts to decide whether the dismissal should be "with prejudice" or final, on that basis.