Order Michigan Supreme Court
Lansing, Michigan
March 19, 2008 Clifford W. Taylor,
Chief Justice
134749 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
BONNIE JEAN GONZALEZ, Personal Robert P. Young, Jr.
Representative of the Estate of CONDE Stephen J. Markman,
Justices
GONZALEZ,
Plaintiff-Appellee,
v SC: 134749
COA: 272093
Wayne CC: 05-506716-NH
ST. JOHN HOSPITAL & MEDICAL CENTER,
Defendant-Appellant,
and
NORTHEAST SURGICAL ASSOCIATES,
P.C., PETER D. KOWYNIA, M.D., and
CHRISTOPHER N. VASHI, M.D.,
Defendants.
_________________________________________/
On order of the Court, the application for leave to appeal the April 19, 2007
judgment of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the question presented should be reviewed by this Court.
CORRIGAN, J., dissents and states as follows:
I would reverse the Court of Appeals and reinstate the trial court’s order granting
summary disposition in defendants’ favor. The Court of Appeals incorrectly concluded
that a resident physician must be held to the standard of a specialist under MCL
600.2169(1)(a) and this Court’s decision in Woodard v Custer, 476 Mich 545 (2006).
Plaintiff alleges that the defendant resident physician, Dr. Christopher Vashi,
negligently failed to properly diagnose and treat plaintiff’s decedent’s acute intra-
abdominal hemorrhage while the decedent was a patient at defendant St. John Hospital.
Vashi was a third-year surgical resident who evaluated the decedent on June 7, 2003.
Previously—on April 8 and May 9, 2003—the decedent had undergone two abdominal
surgeries to treat colon cancer. He returned to the hospital on June 7 after discovering
that he was bleeding from a post-surgical drainage tube. Defendants ultimately
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discovered a leak in the decedent’s left iliac artery but, despite surgical intervention to
repair the leak, the decedent died on June 8, 2003.
Plaintiff’s sole expert was a board-certified specialist in surgery. Accordingly, the
trial court granted summary disposition in defendants’ favor, holding that a resident
physician is neither a specialist nor held to the standards of a specialist. Rather, he is a
general practitioner and, therefore, to establish the relevant standard of care a plaintiff
must present the testimony of a general practitioner or someone who instructs students in
the same health profession in which the resident is licensed. MCL 600.2169(1)(c).
The Court of Appeals initially affirmed the trial court but, it reversed on
reconsideration. Gonzalez v St John Hosp & Med Ctr (On Reconsideration), 275 Mich
App 290 (2007). The panel concluded that, “[u]nder Woodard’s definition of specialist,
any physician who can potentially become board-certified in a branch of medicine or
surgery in which he or she practices is defined as a ‘specialist’ for purposes of MCL
600.2169(1).” Gonzalez, supra at 298. Accordingly, because Vashi is a physician “who
limited his training to surgery, and who could potentially become board-certified on
completion of his residency, at the time decedent died, Vashi would be considered a
‘specialist.’” Id. at 298-299. The panel also held that Woodard overruled the contrary
holding of the Court of Appeals in Bahr v Harper-Grace Hosps, 198 Mich App 31, 34
(1993), rev’d on other grounds 448 Mich 135 (1995) (“It is clear that interns and
residents are not ‘specialists,’ and, therefore, . . . the applicable standard of care for such
persons is that of the local community or similar communities.”).
I disagree with the Court of Appeals conclusion because it misinterprets both
Woodard and the relevant statutory language. The distinction between specialists and
general practitioners is significant because specialists and general practitioners are
subject to different standards under Michigan’s malpractice statutes. If a defendant is a
general practitioner, a medical malpractice plaintiff must show that he “failed to provide
the plaintiff the recognized standard of acceptable professional practice or care in the
community in which the defendant practices or in a similar community . . . .” MCL
600.2912a(1)(a). If the defendant is a specialist, a plaintiff must show that he “failed to
provide the recognized standard of practice or care within that specialty as reasonably
applied in light of the facilities available in the community or other facilities reasonably
available under the circumstances . . . .” MCL 600.2912a(1)(b).
In Woodard, we considered the definition of “specialist,” which is not defined by
the relevant statutes. We concluded:
Dorland's Illustrated Medical Dictionary (28th ed) defines a
“specialist” as “a physician whose practice is limited to a particular branch
of medicine or surgery, especially one who, by virtue of advanced training,
is certified by a specialty board as being qualified to so limit his practice.”
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. . . Both the dictionary definition of “specialist” and the plain language of
§ 2169(1)(a) make it clear that a physician can be a specialist who is not
board certified. They also make it clear that a “specialist” is somebody
who can potentially become board certified. Therefore, a “specialty” is a
particular branch of medicine or surgery in which one can potentially
become board certified. Accordingly, if the defendant physician practices a
particular branch of medicine or surgery in which one can potentially
become board certified, the plaintiff's expert must practice or teach the
same particular branch of medicine or surgery. [Woodard, supra at 561-
562.]
Woodard addressed the meaning of “specialist” for purposes of determining how the term
applies when a defendant physician practices in a specialty or subspecialty but is not
board-certified as a specialist. Id. at 560-562. In light of this context, the Court of
Appeals applies Woodard too broadly in this case to mean that the term “specialist”
includes any physician who practices a particular branch of medicine “in which one can
potentially become board certified.” Id. at 561-562; Gonzalez, supra at 298-299. The
more relevant definition, for our purposes, is the basic definition of “specialist” as “a
physician whose practice is limited to a particular branch of medicine or surgery,
especially one who, by virtue of advanced training, is certified by a specialty board as
being qualified to so limit his practice.” Woodard, supra at 561, quoting Dorland's
Illustrated Medical Dictionary (28th ed). A resident physician simply does not qualify
under this definition. Indeed, Dorland’s separately defines “resident” as “a graduate and
licensed physician receiving training in a specialty in a hospital.” Dorland's Illustrated
Medical Dictionary (29th ed) (emphasis added). Because a resident is receiving training
in a specialty, by definition he is not yet a specialist. Further, such an overbroad
application of Woodard would largely eliminate the statutory distinction between
specialists and general practitioners altogether; any general practitioner who has the
“potential” to become board-certified will automatically qualify as a specialist.
Therefore, I agree with the trial court that Vashi must be considered a general
practitioner because he was still a resident at the time of the alleged malpractice.
Accordingly, plaintiff was required to present an expert on the standard of care who,
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) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional school
or accredited residency or clinical research program in the same health
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profession in which the party against whom or on whose behalf the
testimony is offered is licensed. [MCL 600.2169(1)(c).]
Because plaintiff’s expert did not meet either of these criteria, the trial court properly
granted summary disposition in defendants’ favor.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 19, 2008 _________________________________________
d0312 Clerk