Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 31, 2006
JOHANNA WOODARD, Individually and as
Next friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants
v No. 124994
JOSEPH R. CUSTER, M.D.,
Defendant-Appellant
and Cross-Appellee
and
MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,
Defendants.
______________________________________
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124995
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant
and Cross-Appellee.
______________________________________
SHIRLEY HAMILTON, as Personal Representative
of the ESTATE OF ROSALIE ACKLEY,
Plaintiff-Appellee,
and
BLUE CROSS BLUE SHIELD,
Intervening Plaintiff,
v No. 126275
MARK F. KULIGOWSKI, D.O.,
Defendant-Appellant.
______________________________________
BEFORE THE ENTIRE BENCH
MARKMAN, J.
We granted leave to appeal in these two cases to consider whether
plaintiffs’ proposed expert witnesses are qualified under MCL 600.2169(1) to give
expert testimony on the appropriate standards of medical practice or care. The
trial courts in both cases ruled that plaintiffs’ expert witnesses are not qualified
under § 2169(1). In Woodard, the Court of Appeals affirmed the trial court’s
ruling on this issue, and, in Hamilton, the Court of Appeals reversed the trial
court’s decision. We conclude that the trial courts did not abuse their discretion in
concluding that plaintiffs’ proposed expert witnesses are not qualified under §
2
2169(1). Therefore, in Woodard, we affirm the part of the Court of Appeals
judgment that held that plaintiffs’ proposed expert is not qualified and remand to
the trial court for reentry of its order dismissing plaintiffs’ claim with prejudice.
In Hamilton, we reverse the Court of Appeals judgment and remand to the trial
court for reentry of its order granting a directed verdict to defendant.1
I. FACTS AND PROCEDURAL HISTORY
A. WOODARD V CUSTER
We summarized the facts underlying this case in our recent decision in
Woodard v Custer, 473 Mich 1, 3-5; 702 NW2d 522 (2005) (Woodard I):
Plaintiffs’ fifteen-day-old son was admitted to the Pediatric
Intensive Care Unit (PICU) at the University of Michigan Hospital,
where he was treated for a respiratory problem. During his stay in
the PICU, he was under the care of Dr. Joseph R. Custer, the
Director of Pediatric Critical Care Medicine. When the infant was
moved to the general hospital ward, physicians in that ward
discovered that both of the infant’s legs were fractured. Plaintiffs
sued Dr. Custer and the hospital, alleging that the fractures were the
result of negligent medical procedures, namely, the improper
placement of an arterial line in the femoral vein of the infant’s right
leg and the improper placement of a venous catheter in the infant’s
left leg.
Defendant physician is board-certified in pediatrics and has
certificates of special qualifications in pediatric critical care
medicine and neonatal-perinatal medicine. Plaintiffs’ proposed
expert witness, who signed plaintiffs’ affidavit of merit, is board-
certified in pediatrics, but does not have any certificates of special
qualifications.
1
Contrary to Chief Justice Taylor’s concurrence’s assertion, this opinion is
the majority opinion in this case given that it has four supporters-- Justices
Cavanagh, Weaver, Kelly, and myself. Chief Justice Taylor’s concurrence sows
confusion in an area of the law that is desperately in need of clarity.
3
Before discovery, the trial court denied defendants’ motion
for summary disposition, concluding that plaintiffs’ attorney had a
“reasonable belief” under MCL 600.2912d(1) that plaintiffs’
proposed expert witness was qualified under MCL 600.2169 to
testify against the defendant physician, and, thus, that plaintiffs’
affidavit of merit was sufficient. After discovery, the trial court
granted defendants’ motion to strike plaintiffs’ expert witness on the
basis that he was not actually qualified under MCL 600.2169 to
testify against the defendant physician. The trial court dismissed
plaintiffs’ claim with prejudice, concluding that plaintiffs could not
reach a jury without expert testimony.
The Court of Appeals affirmed the trial court’s ruling that
plaintiffs’ proposed expert witness was not qualified under MCL
600.2169 to testify against the defendant physician (Judge Borrello
dissented on this issue), but reversed the trial court’s dismissal on
the basis that expert testimony was unnecessary under the doctrine
of res ipsa loquitur, i.e., an inference of negligence may be drawn
from the fact that the infant was admitted to the PICU with healthy
legs and discharged from the PICU with fractured legs (Judge Talbot
dissented on this issue). Unpublished opinion per curiam, issued
October 21, 2003 (Docket Nos. 239868-239869). The case was
remanded for trial.
Defendants sought leave to appeal the Court of Appeals
decision that res ipsa loquitur applies and that expert testimony was
not necessary. Plaintiffs sought leave to cross-appeal the Court of
Appeals decision that their proposed expert witness was not
qualified under MCL 600.2169 to testify against the defendant
physician. We heard oral argument on whether to grant the
applications or take other peremptory action permitted by MCR
7.302(G)(1). 471 Mich 890 (2004).
In Woodard I, we addressed defendants’ application for leave to appeal and held
that expert testimony is necessary in this case. At the same time, we granted
plaintiffs’ cross-application for leave to appeal to address whether plaintiffs’
4
proposed expert witness is qualified under MCL 600.2169(1), which is the subject
of the instant opinion. 473 Mich 856 (2005).2
B. HAMILTON V KULIGOWSKI
Plaintiff alleges that the defendant physician failed to properly diagnose
and treat the decedent while she exhibited prestroke symptoms. The defendant
physician is board certified in general internal medicine and specializes in general
internal medicine. Plaintiff’s proposed expert witness is board certified in general
internal medicine and devotes a majority of his professional time to treating
infectious diseases, a subspecialty of internal medicine. The trial court granted
defendant’s motion for a directed verdict on the basis that plaintiff’s expert is not
qualified to testify against the defendant physician because plaintiff’s expert
specializes in infectious diseases and did not devote a majority of his professional
time to practicing or teaching general internal medicine. The Court of Appeals
2
We directed the parties to address:
(1) what are the appropriate definitions of the terms
“specialty” and “board certified” as used in MCL 600.2169(1)(a);
(2) whether either “specialty” or “board certified” includes
subspecialties or certificates of special qualifications; (3) whether
MCL 600.2169(1)(b) requires an expert witness to practice or teach
the same subspecialty as the defendant; (4) whether MCL 600.2169
requires an expert witness to match all specialties, subspecialties,
and certificates of special qualifications that a defendant may
possess, or whether the expert witness need only match those that
are relevant to the alleged act of malpractice. See Tate v Detroit
Receiving Hosp, 249 Mich App 212 (2002); and (5) what are the
relevant specialties, subspecialties, and certificates of special
qualifications in this case.
5
reversed, concluding that plaintiff’s expert is qualified to testify against the
defendant physician because both plaintiff’s proposed expert witness and the
defendant physician specialize in internal medicine and because plaintiff’s
proposed expert did devote a majority of his professional time to the practice of
internal medicine given that the treatment of infectious diseases is a subspecialty
of internal medicine. 261 Mich App 608; 684 NW2d 366 (2004). We granted
defendant’s application for leave to appeal. 473 Mich 858 (2005).3
II. STANDARD OF REVIEW
These cases both involve the interpretation of MCL 600.2169(1). This
Court reviews questions of statutory interpretation de novo. Halloran v Bhan, 470
Mich 572, 576; 683 NW2d 129 (2004). However, this Court reviews a trial
court’s rulings concerning the qualifications of proposed expert witnesses to
testify for an abuse of discretion. Cox v Flint Bd of Hosp Managers, 467 Mich 1,
16 n 16; 651 NW2d 356 (2002). An abuse of discretion occurs when the decision
results in an outcome falling outside the principled range of outcomes. Novi v
Robert Adell Children’s Funded Trust, 473 Mich 242, 254; 701 NW2d 144
(2005).
3
We directed the parties to address:
(1) the proper construction of the words “specialist” and “that
specialty” in MCL 600.2169(1)(a) and MCL 600.2169(1)(b)(i); and
(2) the proper construction of “active clinical practice” and “active
clinical practice of that specialty” as those terms are used in MCL
600.2169(1)(b)(i).
6
III. ANALYSIS
MCL 600.2169 provides, in pertinent part:
(1) 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. [Emphasis added.][4]
4
MCL 600.2169(1) only applies to expert testimony on the appropriate
standard of practice or care; it does not apply to other kinds of expert testimony,
such as expert testimony on causation.
7
A. MOST RELEVANT SPECIALTY AND BOARD CERTIFICATION
Although specialties and board certificates must match, not all specialties
and board certificates must match. Rather, § 2169(1) states that “a person shall
not give expert testimony on the appropriate standard of practice or care
unless . . . .” (Emphasis added.) That is, § 2169(1) addresses the necessary
qualifications of an expert witness to testify regarding the “appropriate standard
of practice or care,” not regarding an inappropriate or irrelevant standard of
medical practice or care. Because an expert witness is not required to testify
regarding an inappropriate or irrelevant standard of medical practice or care, §
2169(1) should not be understood to require such witness to specialize in
specialties and possess board certificates that are not relevant to the standard of
medical practice or care about which the witness is to testify. As this Court
explained in McDougall v Schanz, 461 Mich 15, 24-25; 597 NW2d 148 (1999),
“[MCL 600.2169(1)] operates to preclude certain witnesses from testifying solely
on the basis of the witness’ lack of practice or teaching experience in the relevant
specialty.” (Emphasis added.)
Further, § 2169(1) refers to “the same specialty” and “that specialty.” It
does not refer to “the same specialties” and “those specialties.” That is, § 2169(1)
requires the matching of a singular specialty, not multiple specialties. As the
Court of Appeals explained in Tate v Detroit Receiving Hosp, 249 Mich App 212,
218; 642 NW2d 346 (2002), “the statute expressly uses the word ‘specialty,’ as
opposed to ‘specialties,’ thereby implying that the specialty requirement is tied to
8
the occurrence of the alleged malpractice and not unrelated specialties that a
defendant physician may hold.”
Moreover, § 2169(1)(b) requires the plaintiff’s expert to have “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” the
“active clinical practice” or the “instruction of students” in “the same specialty” as
the defendant physician.5 (Emphasis added.) Obviously, a specialist can only
devote a majority of his professional time to one specialty. Therefore, it is clear
that § 2169(1) only requires the plaintiff’s expert to match one of the defendant
physician’s specialties. Because the plaintiff’s expert will be providing expert
testimony on the appropriate or relevant standard of practice or care, not an
inappropriate or irrelevant standard of practice or care, it follows that the
plaintiff’s expert witness must match the one most relevant standard of practice or
care--the specialty engaged in by the defendant physician during the course of the
alleged malpractice, and, if the defendant physician is board certified in that
specialty, the plaintiff’s expert must also be board certified in that specialty.
5
Because the two cases at issue here involve questions pertaining to
plaintiffs’ expert witnesses’ qualifications, we repeatedly refer to § 2169(1) as
imposing requirements on plaintiffs’ experts. However, contrary to Chief Justice
Taylor’s concurrence’s contention, post at 43, we recognize that § 2169(1) applies
equally to a defendant’s expert witnesses because it applies both to expert
testimony offered “against” and on “behalf” of the defendant physician. We also
note that although we repeatedly refer to the defendant physician, we recognize
that § 2169(1) applies to all licensed health professionals, not just physicians.
9
B. SAME SPECIALTY REQUIREMENT
The first requirement of § 2169(1)(a) is that “[i]f the party against whom or
on whose behalf the testimony is offered is a specialist, [the expert witness must
have] specialize[d] 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.” That is, if a defendant physician is a specialist, the plaintiff’s expert
witness must have specialized in the same specialty as the defendant physician at
the time of the alleged malpractice.
MCL 600.2169(1) does not define the term “specialty.” “We may consult
dictionary definitions of terms that are not defined in a statute.” People v Perkins,
473 Mich 626, 639; 703 NW2d 448 (2005). “[T]echnical words and phrases, and
such as may have acquired a peculiar and appropriate meaning in the law, shall be
construed and understood according to such peculiar and appropriate meaning.”
MCL 8.3a. Because § 2169(1) pertains to “actions[s] alleging medical
malpractice” and because the term “specialty” may have acquired a “peculiar and
appropriate meaning” in the medical field, it is appropriate to look to medical
dictionaries to define the term “specialty.” (Emphasis added.)
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.” MCL 600.2169(1)(a)
requires the plaintiff’s expert to specialize in the same specialty as the defendant
10
physician, and, if the defendant physician is “a specialist who is board certified,
the expert witness must be a specialist who is board certified in that specialty.”
(Emphasis added.) 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.
Plaintiffs argue that § 2169(1)(a) only requires their expert witnesses to
have specialized in the same specialty as the defendant physician, not the same
subspecialty. We respectfully disagree. As explained above, “specialty” is
defined as a particular branch of medicine or surgery in which one can potentially
become board certified. Moreover, “sub” is defined as “a prefix . . . with the
meanings ‘under,’ ‘below,’ ‘beneath’ . . . ‘secondary,’ ‘at a lower point in a
hierarchy[.]’” Random House Webster’s College Dictionary (1997). Therefore, a
“subspecialty” is a particular branch of medicine or surgery in which one can
potentially become board certified that falls under a specialty or within the
hierarchy of that specialty. A subspecialty, although a more particularized
specialty, is nevertheless a specialty. Therefore, if a defendant physician
11
specializes in a subspecialty, the plaintiff’s expert witness must have specialized in
the same subspecialty as the defendant physician at the time of the occurrence that
is the basis for the action.6
C. SAME BOARD CERTIFICATE REQUIREMENT
The next requirement of § 2169(1)(a) is that “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.” As we
recently explained in Halloran, supra at 574, “MCL 600.2169(1)(a) requires that
the proposed expert witness must have the same board certification as the party
against whom or on whose behalf the testimony is offered.”
Plaintiffs argue that the definition of “board certified” found in the Public
Health Code should apply here. We respectfully disagree. The Public Health
Code, MCL 333.2701(a), defines “board certified” as “certified to practice in a
particular medical specialty by a national board recognized by the American board
of medical specialties or the American osteopathic association.” However, the
Legislature specifically limited the use of the Public Health Code’s definition of
“board certified” to the Public Health Code by stating, “As used in this part . . .
‘[b]oard certified’ means . . . .” MCL 333.2701(a) (emphasis added). The statute
at issue here, MCL 600.2169(1), is part of the Revised Judicature Act, not the
6
We note that the American Board of Medical Specialties, the national
certifying board by which 90 percent of all physicians are certified, states in its
amicus curiae brief that a subspecialty constitutes a specialty.
12
Public Health Code, and, thus, the Public Health Code’s definition of “board
certified” does not apply to the statute at issue here.7
Moreover, the Legislature has defined “board certified” differently in other
statutes. Therefore, even if we thought it appropriate to borrow another statute’s
definition of “board certified,” the definition would vary depending on which
statute’s definition was borrowed. For instance, the Legislature has defined
“board certified” in the Insurance Code, MCL 500.2212a(4), as “certified to
practice in a particular medical or other health professional specialty by the
American board of medical specialties or another appropriate national health
professional organization.” Plaintiffs fail to explain why we should choose the
Public Health Code’s definition over the Insurance Code’s definition. We also
note that the Legislature limited the Insurance Code’s definition of “board
certified” to the Insurance Code by stating, “As used in this section, ‘board
certified’ means . . . .” Id. (emphasis added). Because the statute at issue here is
part of the Revised Judicature Act, not the Insurance Code, the Insurance Code’s
definition does not apply to the statute at issue here. Since the Legislature has not
defined “board certified” in the statute at issue here, we instead look to the
medical dictionary definition of “board certified.” Perkins, supra at 639.
7
Further, as this Court explained in Farrington v Total Petroleum, Inc, 442
Mich 201, 210; 501 NW2d 76 (1993), “[c]ourts cannot assume that the Legislature
inadvertently omitted from one statute the language that it placed in another
statute, and then, on the basis of that assumption, apply what is not there.”
13
Taber’s Cyclopedic Medical Dictionary (18th ed) defines “certification” as
“a legal document prepared by an official body that indicates a person or
institution has met certain standards, or that a person has completed a prescribed
course of instruction or training.” Similarly, Gould Medical Dictionary (3d ed)
defines “certification” as “[a] statement by an officially recognized and legally
constituted body, such as a medical board, that a person or institution has met or
complied with certain standards of excellence.” Therefore, we conclude that to be
“board certified” within the meaning of § 2169(1)(a) means to have received
certification from an official group of persons who direct or supervise the practice
of medicine that provides evidence of one’s medical qualifications.8 Accordingly,
if a defendant physician has received certification from a medical organization to
this effect, the plaintiff’s expert witness must also have obtained the same
certification in order to be qualified to testify concerning the appropriate standard
of medical practice or care.
Plaintiffs argue that a certificate of special qualifications9 is not a board
certificate. We respectfully disagree. Contrary to plaintiffs’ assertion, nothing in
§ 2169(1)(a) limits the meaning of board certificate to certificates in the 24
primary medical specialties recognized by the American Board of Medical
8
We find it befuddling that Chief Justice Taylor’s concurrence would adopt
the definition of “board certified” set forth by the Appellate Division of the
Supreme Court of New York without further explanation.
9
We note that these certificates are also sometimes referred to as
“certificates of added qualification.”
14
Specialties or the 18 primary medical specialties recognized by the American
Osteopathic Association. Because a certificate of special qualifications is a
document from an official organization that directs or supervises the practice of
medicine that provides evidence of one’s medical qualifications, it constitutes a
board certificate. Accordingly, if a defendant physician has received a certificate
of special qualifications, the plaintiff’s expert witness must have obtained the
same certificate of special qualifications in order to be qualified to testify under §
2169(1)(a).10
D. SAME PRACTICE/INSTRUCTION REQUIREMENT
MCL 600.2169(1)(b) provides that if the defendant physician is a specialist,
the expert witness must have “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 . . . the active clinical practice of that specialty [or]
[t]he instruction of students in an . . . accredited health professional school or
accredited residency or clinical research program in the same specialty.”11 Once
10
We note that the American Board of Medical Specialties stated in its
amicus curiae brief that it considers certificates of special qualifications to
constitute board certificates.
11
If the defendant physician is not a specialist, § 2169(1)(b) requires the
plaintiff’s expert witness to have “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 . . . [t]he active clinical practice of the same
health profession in which the party against whom or on whose behalf the
testimony is offered is licensed [or] [t]he instruction of students in an accredited
health professional school or accredited residency or clinical research program in
(continued…)
15
again the statute refers to “the same specialty” and “that specialty,” implying that
only a single specialty must be matched. In addition, § 2169(1)(b) requires the
plaintiff’s expert to have “devoted a majority of his or her professional time” to
practicing or teaching the specialty in which the defendant physician specializes.
As we explained above, one cannot devote a “majority” of one’s professional time
to more than one specialty. Therefore, in order to be qualified to testify under §
2169(1)(b), the plaintiff’s expert witness must have devoted a majority of his
professional time during the year immediately preceding the date on which the
alleged malpractice occurred to practicing or teaching the specialty that the
defendant physician was practicing at the time of the alleged malpractice, i.e., the
one most relevant specialty.12
E. RESPONSE TO CHIEF JUSTICE TAYLOR’S CONCURRENCE
Chief Justice Taylor’s concurrence concludes that unless the defendant
physician himself concedes that not all of his specialties are relevant, the plaintiff’s
expert must match all of the defendant physician’s specialties. However, because
the concurrence recognizes that it would be impossible to obtain an expert witness
(…continued)
the same health profession in which the party against whom or on whose behalf
the testimony is offered is licensed . . . .”
12
Just as a subspecialty is a specialty within the meaning of § 2169(1)(a), a
subspecialty is a specialty within the meaning of § 2169(1)(b). Therefore, if the
defendant physician specializes in a subspecialty and was doing so at the time of
the alleged malpractice, the plaintiff’s expert witness must have devoted a
majority of his professional time during the year immediately preceding the date
on which the alleged malpractice occurred to practicing or teaching that
subspecialty.
16
who devotes a majority of his professional time to all of the defendant physician’s
specialties, see § 2169(1)(b) and part III(D) of this opinion, the concurrence
concludes that the plaintiff can simply employ multiple experts to satisfy the
requirements of § 2169(1). That is, a single expert does not have to satisfy all of
the requirements of § 2169(1), as long as a group of experts collectively satisfy
these requirements. We respectfully disagree.
MCL 600.2169(1) states, “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 . . . .”
(Emphasis added.) That is, § 2169(1) states that a person cannot testify unless that
person meets all of the requirements of § 2169(1). If that person does not meet all
of the requirements of § 2169(1), that person cannot testify.13 For the reasons
discussed above, we conclude that the plaintiff’s expert does not have to match all
of the defendant physician’s specialties; rather, the plaintiff’s expert only has to
match the one most relevant specialty.
13
Contrary to Chief Justice Taylor’s concurrence’s contention, we do not
hold that “only one expert may be utilized.” Post at 4. Rather, we make a
distinction between experts testifying about the standard of practice or care and
experts testifying about issues that are not related to the standard of practice or
care. Regarding the former, we conclude that only one standard of practice or care
was envisioned under § 2169(1), and, thus, the plaintiff need only produce one
expert to testify about that standard. If a plaintiff wishes to, however, he is free to
offer several different experts to testify regarding that relevant specialty, and each
must meet the criteria of § 2169(1). With respect to experts who are testifying
about issues unrelated to the standard of practice or care, there are no limitations
on how many experts a plaintiff can produce, and a trial court will consider
whether each expert is qualified using the considerations set forth in § 2169(2) as
well as any other applicable requirements.
17
Not only is the approach of Chief Justice Taylor’s concurrence contrary to
the requirements of the statute, it is also an approach that we believe would be
unworkable in the real world. Under the concurrence’s approach, if the defendant
physician specializes in five specialties, for example, and refuses to concede that
not all of these specialties are relevant to the alleged malpractice, the plaintiff
would be required to present five expert witnesses to testify. Not only would this
be extraordinarily burdensome for the plaintiff, it would also be extraordinarily
burdensome for the trier of fact by infecting the entirety of the trial process with
irrelevant, distracting, and confusing arguments.14
The concurrence by Chief Justice Taylor accuses the majority of
“misunderstand[ing] completely the traditional roles played by the judge and jury
in the trial process.” Post at 33. However, we believe that it is the concurrence
that misunderstands these roles. Typically, the trial court allows the parties to
14
The concurrence by Chief Justice Taylor seems to believe that this would
not be a problem because MCL 600.2955 precludes opinion testimony that is not
based on “proven theories and methodologies.” Post at 35 n 58. By this
argument, the concurrence seems to be confusing relevancy and reliability. Just
because an expert testifies that the standard of care with regard to nephrology is
“X,” and this testimony is reliable in the sense that it is based on “proven theories
and methodologies,” does not mean that it is relevant testimony. Evidence is only
relevant if it has a “tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable
than it would be without the evidence.” MRE 401. If the defendant physician was
not practicing nephrology at the time of the alleged malpractice, testimony
regarding the standard of care for nephrology will not “make the existence of any
fact that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” If the standard of care for
nephrology is irrelevant, why require an expert witness to specialize in
nephrology?
18
introduce relevant evidence and does not allow the parties to introduce irrelevant
evidence. See MRE 402, which provides, “All relevant evidence is admissible,
except as otherwise provided by the Constitution of the United States, the
Constitution of the State of Michigan, these rules, or other rules adopted by the
Supreme Court. Evidence which is not relevant is not admissible.” Under the
concurrence’s approach, however, the parties would effectively be required to
present irrelevant evidence, potentially a great amount of such evidence. And,
instead of the trial court itself reviewing the evidence to determine what is and
what is not relevant, the trier of fact would be required to do so.15
15
The concurrence by Chief Justice Taylor asks us, “How is the trial judge
to determine which specialties are ‘relevant’ without expert testimony . . . ?” Post
at 40. First, in most cases, expert testimony probably will not be required to
determine which specialties are relevant. For instance, if a defendant physician
specializes in cardiovascular surgery and podiatry and he was performing heart
surgery at the time of the alleged malpractice, we doubt very highly that the trial
court will need expert testimony to determine that cardiovascular surgery is the
relevant specialty. The concurrence states that it finds our belief that the trial
court may be able to determine without expert testimony which specialty is
relevant “curious given this Court’s historical recognition that expert testimony is
almost always needed to establish the standard of care in medical malpractice
actions.” Post at 40 n 64. The concurrence appears to be ignoring the distinction
between determining which specialty is relevant and determining the appropriate
standard of care. Using the cardiovascular surgeon/podiatrist example, although
the trial court can probably determine without expert testimony that cardiovascular
surgery is the relevant specialty, the trial court probably cannot determine what the
appropriate standard of care is for cardiovascular surgeons performing heart
surgery.
Second, the trial court is, of course, not precluded from seeking expert
testimony if it believes that such testimony is necessary for it to determine which
specialty is relevant.
19
Requiring the admission of irrelevant evidence would not only be a waste
of time and limited judicial resources, it would also cause enormous confusion and
distraction for the fact-finder. For instance, if the defendant physician claims to
specialize in dermatology, internal medicine, plastic surgery, pediatrics, and
urology and he negligently prescribes an adult dosage of amoxicillin to a three-
year-old child suffering from an ear infection, under the majority's approach, the
plaintiff’s expert would have to specialize in pediatrics. However, under the
approach of Chief Justice Taylor’s concurrence, the plaintiff’s phalanx of experts
would have to specialize in dermatology, internal medicine, plastic surgery,
pediatrics, and urology. That is, instead of the jury hearing testimony regarding
the relevant specialty of pediatrics, the jury would be required also to endure
testimony regarding the irrelevant specialties of dermatology, internal medicine,
plastic surgery, and urology. To require the jury to hear such irrelevant testimony
would confuse the jury and distract it from evaluating the relevant legal issues.
Because this is not how the trial process is typically conducted in Michigan, and
because the statute does not require trials to be conducted in such a confusing
manner, we refuse to impose such a requirement upon the process.
The concurrence by Chief Justice Taylor contends that we are giving the
trial court “a power of theory preclusion . . . heretofore unknown in our
jurisprudence.” Post at 33. First, whether expert testimony is described as a
“theory” or evidence supporting a theory, testimony regarding a specialty that was
not being practiced at the time of the alleged malpractice is irrelevant, and, thus,
20
inadmissible. In other words, irrelevant expert testimony does not magically
become relevant and admissible simply by calling it a “theory.” To use the
concurrence’s collapsed building hypothetical, the defendant architect would
obviously be able to introduce relevant evidence of an earthquake. However, he
would not be able to introduce irrelevant evidence of an earthquake, for instance,
evidence that an earthquake occurred years after the building collapsed in a
country half way around the world. That is, the defendant architect is not
precluded from introducing relevant theories, i.e., that the building collapsed
because an earthquake occurred that same day in a neighboring city, but he is
precluded from introducing irrelevant theories, i.e., that the building collapsed
because an earthquake occurred years after the building collapsed in a country half
way around the world.
Second, our holding that relevant expert testimony is admissible and
irrelevant expert testimony is inadmissible is hardly a novel holding. As we have
explained, it has always been the trial court’s job to facilitate the introduction of
relevant evidence and to preclude the introduction of irrelevant evidence.16 We
16
The concurrence by Chief Justice Taylor contends that our opinion will
deny parties their constitutional right to have a jury determine factual matters.
Post at 33. This is simply incorrect. Whether expert testimony is relevant and
whether an expert is qualified to testify have historically been decisions for the
trial court, not a jury, to make. Gilbert v DaimlerChrysler Corp, 470 Mich 749,
780 n 46; 685 NW2d 391 (2004). Relevancy is not, and has never been, a factual
determination that is left to the jury to make. MRE 402 and 702.
The concurrence also contends that our opinion will deny parties their
procedural due process rights because it will deny them the right to present
(continued…)
21
are aware of no precedent that would require all irrelevant specialties to match, or
that would countenance a phalanx of experts, each of whom would be charged
with testifying about a different irrelevant specialty. As the concurrence by Chief
Justice Taylor itself recognizes, it is they, not the majority, that are advocating a
change in the status, because the Court of Appeals in Tate held that irrelevant
specialties do not have to match. The horror stories predicted by the concurrence
upon the adoption of the majority position simply have not been borne out under
Tate. Moreover, we note that none of the parties in these two cases argued that
irrelevant specialties and board certificates must match, and none of the parties or
the amici curiae argued in favor of the approach adopted by Chief Justice Taylor’s
concurrence.
Further, we note that just because an expert is qualified under § 2169(1)
does not mean that the trial court cannot disqualify the expert on other grounds.
MCL 600.2169(2) provides:
In determining the qualifications of an expert witness in an
action alleging medical malpractice, the court shall, at a minimum,
evaluate all of the following:
(a) The educational and professional training of the expert
witness.
(…continued)
evidence. Post at 42-43. Although parties have a right to present relevant
evidence, as long as the admission of such evidence does not violate the
Constitution of the United States, the Constitution of the state of Michigan, a rule
of evidence, or a court rule, parties do not have a right to present irrelevant
evidence. MRE 402. Further, parties are not precluded from arguing that a certain
specialty is relevant. However, it is up to the trial court in its gatekeeping role to
determine whether the specialty is actually relevant. Gilbert, supra at 780 n 46.
22
(b) The area of specialization of the expert witness.
(c) The length of time the expert witness has been engaged in
the active clinical practice or instruction of the health profession or
the specialty.
(d) The relevancy of the expert witness’s testimony.
In addition, MCL 600.2169(3) specifically states, “[t]his section does not limit the
power of the trial court to disqualify an expert witness on grounds other than the
qualifications set forth in this section.” MCL 600.2955 provides:
(1) In an action for the death of a person or for injury to a
person or property, a scientific opinion rendered by an otherwise
qualified expert is not admissible unless the court determines that the
opinion is reliable and will assist the trier of fact. In making that
determination, the court shall examine the opinion and the basis for
the opinion, which basis includes the facts, technique, methodology,
and reasoning relied on by the expert, and shall consider all of the
following factors:
(a) Whether the opinion and its basis have been subjected to
scientific testing and replication.
(b) Whether the opinion and its basis have been subjected to
peer review publication.
(c) The existence and maintenance of generally accepted
standards governing the application and interpretation of a
methodology or technique and whether the opinion and its basis are
consistent with those standards.
(d) The known or potential error rate of the opinion and its
basis.
(e) The degree to which the opinion and its basis are generally
accepted within the relevant expert community. As used in this
subdivision, “relevant expert community” means individuals who
are knowledgeable in the field of study and are gainfully employed
applying that knowledge on the free market.
(f) Whether the basis for the opinion is reliable and whether
experts in that field would rely on the same basis to reach the type of
opinion being proffered.
23
(g) Whether the opinion or methodology is relied upon by
experts outside of the context of litigation.
(2) A novel methodology or form of scientific evidence may
be admitted into evidence only if its proponent establishes that it has
achieved general scientific acceptance among impartial and
disinterested experts in the field.
(3) In an action alleging medical malpractice, the provisions
of this section are in addition to, and do not otherwise affect, the
criteria for expert testimony provided in section 2169.
Finally, MRE 702 further provides:
If the court determines that scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
Therefore, even when a proffered expert meets the criteria contained in § 2169(1),
the expert is subject to further scrutiny under § 2169(2), § 2169(3), § 2955, and
MRE 702.17
Moreover, if a defendant believes that the plaintiff’s expert is not qualified
because he does not specialize in what the defendant believes to be the relevant
specialty, the defendant can file a motion to strike the plaintiff’s expert. If the trial
court denies that motion, the defendant can then, of course, appeal that decision.
17
We note that, while § 2169(1) only applies to “expert testimony on the
appropriate standard of practice or care,” § 2169(2), § 2955, and MRE 702 apply
to all expert testimony in medical malpractice actions. Therefore, while all experts
must meet the requirements of § 2169(2), § 2955, and MRE 702, only those
experts testifying regarding the appropriate standard of practice or care have to
meet the requirements of § 2169(1).
24
The defendant can either file an interlocutory appeal or he can wait until the jury
renders a verdict to file an application for leave to appeal. Either way, the
defendant can certainly preserve the issue for appeal by objecting to the plaintiff’s
expert’s testimony on the basis that the expert is not qualified because he does not
specialize in the relevant specialty. At this point, the defendant should make clear
what he thinks the relevant specialty is and why he thinks such is the relevant
specialty.18
IV. APPLICATION
A. WOODARD V CUSTER
The defendant physician is the director of pediatric critical care medicine at
the University of Michigan Hospital, and specializes in pediatric critical care
medicine. “Pediatrics” is “[t]he medical specialty concerned with the study and
treatment of children in health and disease during development from birth through
adolescence.” Stedman’s Medical Dictionary (26th ed). “Critical” is defined as
“[d]enoting a morbid condition in which death is possible.” Id. Pediatric critical
care medicine is the branch of medicine concerned with the care of children who
are critically ill. Plaintiffs claim that an arterial line was improperly placed in the
18
The concurrence by Chief Justice Taylor apparently believes that this will
require the creation of a separate record and that each party will have to present its
own experts at this point. We respectfully disagree. All a defendant has to do to
preserve the issue for appeal is to object to the admission of the plaintiff’s expert’s
testimony and to state why he believes the plaintiff’s expert is not qualified. If the
issue is appealed and the appellate court believes that it does not have enough
information before it to review the trial court’s decision, it can certainly remand
for an evidentiary hearing or take other appropriate action. The concurrence
creates the potential for procedural confusion out of thin air.
25
femoral vein of the infant patient’s right leg and that a venous catheter was
improperly placed in the infant patient’s left leg while the infant was a patient in
the defendant hospital’s pediatric intensive care unit. There is no question that the
infant patient was critically ill when these procedures were performed. For these
reasons, we conclude that the trial court did not abuse its discretion in finding that
the defendant physician was practicing pediatric critical care medicine at the time
of the alleged malpractice, and, thus, pediatric critical care medicine is the one
most relevant specialty.19 Plaintiffs’ proposed expert witness undeniably did not
specialize in pediatric critical care medicine at the time of the alleged malpractice
and has never specialized in pediatric critical care medicine. Therefore, plaintiffs’
19
Chief Justice Taylor’s concurrence asks us how we “know” that the
defendant physician was practicing pediatric critical care medicine at the time of
the alleged malpractice. Post at 39. We “know” this because all of the admissible
evidence supports the trial court’s finding that the defendant physician was
practicing pediatric critical care medicine at the time of the alleged malpractice.
Further, as Chief Justice Taylor’s concurrence points out, post at 38, 48-49, the
plaintiffs did not rebut that finding by presenting qualified expert testimony to
support their argument that the defendant physician was not practicing pediatric
critical care medicine at the time of the alleged malpractice. Contrary to what
Chief Justice Taylor’s concurrence suggests, even assuming that plaintiffs’ expert
is qualified to testify that defendant was not practicing pediatric critical care
medicine at the time of the alleged malpractice, plaintiffs’ expert cannot
reasonably be understood to have testified that the defendant was not practicing
pediatric critical care medicine at the time of the alleged malpractice. Plaintiffs’
expert only testified that he performed the procedures in this case during his
residency. Unlike Chief Justice Taylor’s concurrence, we do not believe that the
jury could have reasonably inferred from this testimony that it is “relatively
common for doctors who practice only general pediatric care to perform the
procedures in this case . . . .” Post at 39 n 63. Moreover, it is not our task to
“know” whether pediatric critical care medicine is or is not the relevant specialty;
rather, our task is to determine whether the trial court abused its discretion in
determining that pediatric critical care medicine is the relevant specialty.
26
proposed expert witness does not satisfy the same specialty requirement of §
2169(1)(a).20
The defendant physician is board certified in pediatric critical care
medicine, and, as explained above, pediatric critical care medicine is the one most
relevant specialty. Plaintiffs’ proposed expert witness is not board certified in
pediatric critical care medicine. Therefore, plaintiffs’ proposed expert witness
does not satisfy the same board certificate requirement of § 2169(1)(a).
As explained above, the defendant physician specializes in pediatric critical
care medicine and pediatric critical care medicine is the one most relevant
specialty. During the year immediately preceding the alleged malpractice,
plaintiffs’ proposed expert witness did not practice or teach pediatric critical care
medicine.21 Therefore, plaintiffs’ proposed expert witness also does not satisfy the
same practice/instruction requirement of § 2169(1)(b).
20
Plaintiffs’ proposed expert witness is a pediatrician, not a pediatric
critical care specialist. A good illustration of the differences between these two
types of physicians can be found in this very case: when the infant began to have
respiratory problems, plaintiffs took their son to the pediatrician; the pediatrician,
recognizing that the infant needed to be treated by a pediatric critical care
specialist, then placed the infant in an ambulance and sent him to the defendant
hospital, for treatment by the defendant physician.
21
In fact, plaintiffs’ proposed expert witness has never worked as an
attending physician in a pediatric intensive care unit nor has he ever taught
pediatric critical care medicine. Further, plaintiffs’ proposed expert has not
inserted an arterial line or a venous catheter in an infant, the specific medical
procedure that was allegedly performed negligently in this case, since his
residency in the early 1980’s.
27
For these reasons, the trial court did not abuse its discretion in concluding
that plaintiffs’ proposed expert witness is not qualified to testify on the appropriate
standard of practice or care under § 2169(1). Because plaintiffs failed to present
an expert qualified under § 2169(1) to testify with regard to the appropriate
standard of practice or care, the trial court properly dismissed plaintiffs’ claim
with prejudice.
B. HAMILTON V KULIGOWSKI
The defendant physician specializes in general internal medicine and was
practicing general internal medicine at the time of the alleged malpractice. During
the year immediately preceding the alleged malpractice, plaintiffs’ proposed
expert witness did not devote a majority of his time to practicing or teaching
general internal medicine. Instead, he devoted a majority of his professional time
to treating infectious diseases. As he himself acknowledged, he is “not sure what
the average internist sees day in and day out.” Therefore, plaintiff’s proposed
expert witness does not satisfy the same practice/instruction requirement of §
2169(1)(b).
For this reason, the trial court did not abuse its discretion in concluding that
plaintiff’s proposed expert witness is not qualified to testify regarding the
appropriate standard of practice or care under § 2169(1). Because plaintiff failed
to present an expert qualified under § 2169(1) to testify with regard to the
appropriate standard of practice or care, the trial court properly granted a directed
verdict in favor of defendant.
28
V. CONCLUSION
If a defendant physician is a specialist, the plaintiff’s expert witness must
have specialized in the same specialty as the defendant physician at the time of the
occurrence that is the basis for the action. If a defendant physician specializes in a
subspecialty, the plaintiff’s expert witness must have specialized in the same
subspecialty as the defendant physician at the time of the occurrence that is the
basis for the action. If the defendant physician is a specialist who is board
certified, the expert witness must be a specialist who is board certified in that
specialty. If the defendant physician has received a certificate of special
qualifications, the plaintiff’s expert witness must have obtained the same
certificate of special qualifications. However, under § 2169(1)(a), only the one
most relevant specialty or subspecialty must match; and only the one most relevant
board certificate or certificate of special qualifications must match. We are aware
of no precedent that would, as required by Chief Justice Taylor’s concurrence,
require all irrelevant specialties to match or countenance a phalanx of experts,
each of whom would be charged with testifying about a different irrelevant
specialty. In addition, under § 2169(1)(b), if the defendant physician is a
specialist, the plaintiff’s expert witness must have devoted a majority of his
professional time during the year immediately preceding the date on which the
alleged malpractice occurred to practicing or teaching the specialty or subspecialty
that the defendant physician was practicing at the time of the alleged malpractice,
i.e., the one most relevant specialty or subspecialty.
29
The trial courts did not abuse their discretion here in concluding that
plaintiffs’ proposed expert witnesses were not qualified under MCL 600.2169(1)
to testify regarding the appropriate medical standard of practice or care.
Therefore, in Woodard, we affirm the part of the Court of Appeals judgment that
held that plaintiffs’ proposed expert is not qualified and remand this case to the
trial court for reentry of its order dismissing plaintiffs’ claim with prejudice. In
Hamilton, we reverse the Court of Appeals judgment and remand this case to the
trial court for reentry of its order granting a directed verdict to defendant.
Stephen J. Markman
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
30
STATE OF MICHIGAN
SUPREME COURT
JOHANNA WOODARD, Individually and as
Next friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants
v No. 124994
JOSEPH R. CUSTER, M.D.,
Defendant-Appellant
and Cross-Appellee
and
MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,
Defendants.
______________________________________
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124995
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant
and Cross-Appellee.
______________________________________
SHIRLEY HAMILTON, as Personal Representative
of the ESTATE OF ROSALIE ACKLEY,
Plaintiff-Appellee,
and
BLUE CROSS BLUE SHIELD,
Intervening Plaintiff,
v No. 126275
MARK F. KULIGOWSKI, D.O.,
Defendant-Appellant.
______________________________________
CAVANAGH, J. (concurring).
I continue to believe that MCL 600.2169 is unconstitutional for the reasons
set forth in my dissent in McDougall v Schanz, 461 Mich 15, 38; 597 NW2d 148
(1999) (Cavanagh, J., dissenting). But because a majority of my colleagues
disagree, the statute remains in place. Accordingly, the bench and bar are entitled
to be guided in its application. It is for that reason that I join the majority
opinion’s statutory analysis outlined by Justice Markman.
Nonetheless, I take this opportunity to point out that the difficulties in
interpreting and applying § 2169 are highlighted both by the frequency with which
a variety of issues surrounding the statute arise and the inability of this Court to
reach a consensus on how the statute is to operate. In my view, this serves to
2
validate the many concerns I held when McDougall, supra, was decided, and those
concerns remain far from resolved.
Michael F. Cavanagh
3
STATE OF MICHIGAN
SUPREME COURT
JOHANNA WOODARD, Individually and as
Next friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants
v No. 124994
JOSEPH R. CUSTER, M.D.,
Defendant-Appellant
and Cross-Appellee
and
MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,
Defendants.
______________________________________
JOHANNA WOODARD, Individually and as
Next Friend of AUSTIN D. WOODARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124995
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant
and Cross-Appellee.
______________________________________
SHIRLEY HAMILTON, as Personal Representative
of the ESTATE OF ROSALIE ACKLEY,
Plaintiff-Appellee,
and
BLUE CROSS BLUE SHIELD,
Intervening Plaintiff,
v No. 126275
MARK F. KULIGOWSKI, D.O.,
Defendant-Appellant.
______________________________________
MARKMAN, J. (concurring).
I write separately to set forth an additional argument in support of the
majority’s conclusion that only the one most relevant specialty and board
certificate must match under MCL 600.2169(1), and to explain that although only
the one most relevant specialty must match under § 2169(1), the trial court may
require that other relevant specialties match pursuant to § 2169(2), § 2169(3), and
MRE 702. I write also to respond to Chief Justice Taylor’s concurrence’s
contention that this opinion is inconsistent with the majority opinion. I have also
set forth an appendix that summarizes recent Michigan Supreme Court decisions
in the increasingly complex area of medical malpractice.
2
ANALYSIS
MCL 600.2169(1)(a) requires a plaintiff’s expert to have specialized “in the
same specialty” as the defendant physician. And, if the defendant physician is a
specialist who is board certified, § 2169(1)(a) requires the plaintiff’s expert to be
“board certified in that specialty.” (Emphasis added.) In Robinson v Detroit, 462
Mich 439, 462; 613 NW2d 307 (2000), this Court held that the phrase “the
proximate cause” as used in the governmental immunity act, MCL 691.1407(2),
means “the one most immediate, efficient, and direct cause of the injury or
damage . . . .” We explained that because “‘the’ is a definite article, and ‘cause’ is
a singular noun, it is clear that the phrase ‘the proximate cause’ contemplates one
cause.” Id. (emphasis in original). The same is true here. That is, because “the”
is a definite article, and “specialty” is a singular noun, the phrase “the same
specialty” contemplates one specialty-- the most relevant specialty.1 Therefore,
where a defendant physician specializes in multiple specialties, § 2169(1)(a)
requires an expert witness to specialize only in the same specialty engaged in by
the defendant physician during the course of the alleged malpractice, i.e., the one
most relevant specialty. And, if the defendant physician is board certified in “that
1
I note that Chief Justice Taylor’s concurrence does not even attempt to
reconcile its position in this case that “the same specialty” means multiple
specialties with this Court’s decision in Robinson that “the proximate cause”
means one cause. See also Paige v City of Sterling Hts, 476 Mich ___; ___ NW2d
___ (Docket No. 127912, decided July 31, 2006).
3
specialty”-- the one most relevant specialty-- the plaintiff’s expert witness must
also be board certified in that specialty.
As the majority opinion explains, the requirements of § 2169(1) are not the
only requirements that a medical expert must satisfy in order to be able to testify.
MCL 600.2169(2) provides:
In determining the qualifications of an expert witness in an
action alleging medical malpractice, the court shall, at a minimum,
evaluate all of the following:
(a) The educational and professional training of the expert
witness.
(b) The area of specialization of the expert witness.
(c) The length of time the expert witness has been engaged in
the active clinical practice or instruction of the health profession or
the specialty.
(d) The relevancy of the expert witness’s testimony.
In addition, MCL 600.2169(3) specifically states, “This section does not limit the
power of the trial court to disqualify an expert witness on grounds other than the
qualifications set forth in this section.” Finally, MRE 702 provides:
If the court determines that scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise if (1) the
testimony is based on sufficient facts or data, (2) the testimony is the
product of reliable principles and methods, and (3) the witness has
applied the principles and methods reliably to the facts of the case.
Therefore, although the fact that the defendant physician specializes in multiple
specialties and the plaintiff’s expert witness does not may not be considered under
4
§ 2169(1), it may be considered under § 2169(2) and MRE 702. For instance, if
the defendant physician specializes in two specialties and both of these specialties
are relevant, i.e., the defendant physician’s actions were informed by both
specialties at the time of the alleged malpractice, the trial court may well conclude
that, although the plaintiff’s expert witness is qualified under § 2169(1) because he
specializes in the one most relevant specialty, he may not be qualified under §
2169(2) or MRE 702 because he does not specialize in both relevant specialties.
Through the application of § 2169(1), as well as by the exercise of judicial
discretion under § 2169(2) and MRE 702, plaintiffs are not obligated to produce
experts matching irrelevant specialties of defendants, but they are obligated, in my
judgment, to produce experts matching relevant specialties.
RESPONSE TO CHIEF JUSTICE TAYLOR’S CONCURRENCE
Chief Justice Taylor’s concurrence contends that this concurrence is
inconsistent with the majority opinion that I have written. This is simply
incorrect. I agree completely with everything said in the majority opinion: (a) The
majority opinion holds that irrelevant specialties do not have to match. I agree.
(b) The majority opinion holds that under § 2169(1) only the one most relevant
specialty must match. I agree. (c) The majority opinion holds that an individual
expert must meet all of the requirements of § 2169(1) in order to testify; a group of
experts cannot pool their expertise to collectively satisfy the requirements of §
2169(1). I agree. (d) The majority opinion holds that just because an expert is
5
qualified under § 2169(1) does not mean that the trial court cannot disqualify the
expert on “other grounds.” I agree.
I write separately only to explain that I believe that one of these “other
grounds” for disqualification can be the failure of the plaintiff’s expert to match
other relevant specialties. Contrary to Chief Justice Taylor’s concurrence’s
contention, there is nothing in the majority opinion that precludes this conclusion.
While the majority opinion holds that under § 2169(1) only the one most relevant
specialty must match, this does not mean that a different provision of law cannot
require that other relevant specialties be matched.
Chief Justice Taylor’s concurrence asserts that the majority opinion holds
that “only one expert may be utilized” and the concurrence allows more. Post at
4. This is again incorrect. As I have explained, I agree completely with the
majority opinion that an individual expert must meet all of the requirements of §
2169(1) in order to testify. Contrary to Chief Justice Taylor’s concurrence, I do
not believe that an assemblage of experts can join their expertise to collectively
satisfy the requirements of § 2169(1). I further agree with the majority opinion
that only one standard of practice or care was envisioned under § 2169(1), and,
thus, the plaintiff need only produce one expert to testify about that standard, but,
if a plaintiff wishes to, he is free to offer several different experts to testify
regarding that relevant specialty, as long as each expert meets the criteria of §
2169(1).
6
Chief Justice Taylor’s concurrence contends that because I believe that
multiple specialties may be relevant, this must also mean that I share its view that
a plaintiff can utilize multiple experts because it would be impossible for any one
expert to meet the requirements of MCL 600.2169(1)(b). Post at 47 n 71. This
provision requires the proposed expert to have “devoted a majority of his or her
professional time” to practicing or teaching the specialty in which the defendant
physician specializes. That is, Chief Justice Taylor’s concurrence contends that
because I believe that multiple specialties may be relevant, and because MCL
600.2169(1)(b) requires the proposed expert to have “devoted a majority of his or
her professional time” to practicing or teaching the specialty in which the
defendant physician specializes, I must necessarily agree with them that the
plaintiff can utilize multiple experts because one expert cannot possibly devote a
majority of his professional time to practicing or teaching multiple specialties.
However, Chief Justice Taylor’s concurrence overlooks that I agree with
the majority opinion that under § 2169(1) only the one most relevant specialty
must match, and disagree with Chief Justice Taylor’s concurrence that all
specialties, however irrelevant, must match under § 2169(1). Because only the
one most relevant specialty must match under § 2169(1), it is not at all impossible
for an expert to meet the requirements of § 2169(1)(b). Moreover, contrary to
Chief Justice Taylor’s concurrence’s contention, § 2169(1)(b) does not “preclude
any expert from providing testimony regarding more than one specialty area.”
Post at 3. For instance, using Chief Justice Taylor’s concurrence’s hypothetical
7
defendant physician who specializes in cardiovascular surgery and nephrology and
who negligently inserts a pacemaker, if the trial court determines that
cardiovascular surgery is the one most relevant specialty, under § 2169(1)(a), the
plaintiff’s expert must specialize in cardiovascular surgery and, under §
2169(1)(b), he must have devoted a majority of his professional time practicing or
teaching cardiovascular surgery. However, even if the plaintiff’s expert meets the
requirements of § 2169(1), the trial court may conclude that nephrology is also a
relevant specialty and that, if the expert does not also specialize in nephrology, he
is not qualified under either § 2169(2) or MRE 702. Again, there is nothing
inconsistent with holding that an expert may be qualified under one provision of
law, but is not qualified under a different provision. Moreover, if the plaintiff’s
expert devotes a majority of his professional time to practicing or teaching
cardiovascular surgery and also specializes in nephrology, nothing precludes that
expert from testifying about both cardiovascular surgery and nephrology because §
2169(1)(b) only applies to the one most relevant specialty.
Chief Justice Taylor’s concurrence professes to concur with my concurring
opinion. Post at 2. While this would be welcome, those who signed Chief Justice
Taylor’s opinion should understand my concurring opinion more clearly than they
do. While this opinion and Chief Justice Taylor’s concurrence are in agreement
with the proposition that all relevant specialties must match, our analyses differ.
While this opinion grounds this conclusion in § 2169(2) and MRE 702, Chief
Justice Taylor’s concurrence grounds this conclusion in § 2169(1). Of greater
8
practical significance, the analysis in this opinion, unlike that of Chief Justice
Taylor’s concurrence, cannot be separated from the majority opinion’s proposition
that no irrelevant specialties must match and that an individual expert must meet
all of the requirements of § 2169(1) in order to testify.
Because Chief Justice Taylor’s concurrence sows confusion regarding
where the majority lies, I will attempt to clarify this. In my judgment, there is
majority support for the following propositions:
(1) Irrelevant specialties do not have to match (Justices Cavanagh, Weaver,
Kelly, and myself);
(2) Under § 2169(1), only the one most relevant specialty must match
(Justices Cavanagh, Weaver, Kelly, and myself);
(3) An individual expert must meet all of the requirements of § 2169(1) in
order to testify (Justices Cavanagh, Weaver, Kelly, and myself);
(4) An assemblage of experts cannot join their expertise to collectively
satisfy the requirements of § 2169(1) (Justices Cavanagh, Weaver, Kelly, and
myself);
(5) That an expert is qualified under § 2169(1) does not mean that the trial
court cannot disqualify the expert on other grounds (Chief Justice Taylor and
Justices Cavanagh, Weaver, Kelly, Corrigan, Young, and myself);
(6) Other relevant specialties may have to match under § 2169(2) and MRE
702 (Chief Justice Taylor and Justices Corrigan, Young, and myself).
Stephen J. Markman
9
APPENDIX
In light of the growing complexity of medical malpractice statutes in
Michigan and the resultant case law, the following is designed as a brief summary
of recent Michigan Supreme Court decisions in this area.
(1) If the claim pertains to an action that occurred within the course of a
professional medical relationship and the claim raises questions of medical
judgment beyond the realm of common knowledge and experience, the claim
sounds in medical malpractice, not ordinary negligence. Bryant v Oakpointe Villa
Nursing Ctr, Inc, 471 Mich 411; 684 NW2d 864 (2004).
(2) The period of limitations is two years for an action charging
malpractice. MCL 600.5805(6).
(3) A person cannot commence a medical malpractice action without first
giving the defendant written notice. MCL 600.2912b(1).
(4) No suit can be commenced for 182 days after written notice is given.
MCL 600.2912b(1).
(5) The 182-day no-suit period can be shortened to 154 days if the
defendant does not provide a written response within 154 days. MCL
600.2912b(8). The 182-day no-suit period can be shortened to 91 days under
certain circumstances. MCL 600.2912b(3). Finally, the 182-day no-suit period
can be shortened to some other number of days if the defendant informs the
plaintiff in writing that the defendant does not intend to settle the claim. MCL
600.2912b(9).
10
(6) If the notice of intent is given 182 days or less before the end of the
two-year limitations period, this tolls the two-year limitations period for 182 days.
MCL 600.5856(c); Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177
(2000).
(7) A notice of intent must include: (a) the factual basis for the claim; (b)
the applicable standard of practice or care alleged by the claimant; (c) the manner
in which it is claimed that the applicable standard of practice or care was breached
by the health professional or health facility; (d) the alleged action that should have
been taken to achieve compliance with the alleged standard of practice or care; (e)
the manner in which it is alleged the breach of the standard of practice or care was
the proximate cause of the injury claimed in the notice; and (f) the names of all
health professionals and health facilities the claimant is notifying under this
section in relation to the claim. MCL 600.2912b(4); Roberts v Mecosta Gen Hosp
(After Remand), 470 Mich 679; 684 NW2d 711 (2004).
(8) A notice of intent that is not in full compliance with MCL 600.2912b(4)
does not toll the limitations period. MCL 600.5856(c); Roberts, supra.
(9) The tacking or addition of successive 182-day periods is prohibited.
MCL 600.2912b(6).
(10) A second notice of intent can toll the period of limitations if the first
notice of intent did not toll the period of limitations. MCL 600.2912b(6);
Mayberry v Gen Orthopedics, PC, 474 Mich 1; 704 NW2d 69 (2005).
11
(11) A complaint alleging medical malpractice that is filed before the
expiration of the notice period provided by MCL 600.2912b does not toll the
period of limitations. MCL 600.2912b(1); Burton v Reed City Hosp Corp, 471
Mich 745; 691 NW2d 424 (2005).
(12) If a person dies before the period of limitations has run or within 30
days after the period of limitations has run, the personal representative of the
decedent’s estate can file a wrongful death action up to two years after letters of
authority are issued, as long as the action is brought within three years after the
period of limitations has run. MCL 600.5852.
(13) A successor personal representative has two years after appointment to
file an action on behalf of the estate as long as the action is filed within three years
after the period of limitations has run. MCL 600.5852; Eggleston v Bio-Medical
Applications of Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003).
(14) A notice of intent does not toll the additional period permitted for
filing wrongful death actions under the wrongful death saving provision, MCL
600.5852. MCL 600.5856(c); Waltz v Wyse, 469 Mich 642; 677 NW2d 813
(2004).
(15) A plaintiff is required to file with the complaint an affidavit of merit
signed by an expert who the plaintiff’s attorney reasonably believes meets the
requirements of MCL 600.2169. MCL 600.2912d(1); Grossman v Brown, 470
Mich 593; 685 NW2d 198 (2004).
12
(16) A complaint alleging medical malpractice that is not accompanied by
the statutorily required affidavit of merit does not toll the limitations period. MCL
600.2912d(1); Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000).
(17) If a defendant physician is a specialist, the plaintiff’s expert witness
must have specialized in the same specialty as the defendant physician at the time
of the occurrence that is the basis for the action. MCL 600.2169(1)(a); Woodard v
Custer (Woodard II), ___ Mich ___ ; ___ NW2d ___ (Docket Nos. 124994,
124995, 126275, decided July ___, 2006).
(18) If a defendant physician specializes in a subspecialty, the plaintiff’s
expert witness must have specialized in the same subspecialty as the defendant
physician at the time of the occurrence that is the basis for the action. MCL
600.2169(1)(a); Woodard II, supra.
(19) If the defendant physician is a specialist who is board certified, the
plaintiff’s expert witness must be a specialist who is board certified in that
specialty. MCL 600.2169(1)(a); Halloran v Bhan, 470 Mich 572; 683 NW2d 129
(2004).
(20) If a defendant physician has received a certificate of special
qualifications, the plaintiff’s expert witness must have received the same
certificate of special qualifications. MCL 600.2169(1)(a); Woodard II.
(21) Where a defendant physician specializes in several specialties, the
plaintiff’s expert witness must have specialized in the same specialty as that
engaged in by the defendant physician during the course of the alleged
13
malpractice, i.e., the one most relevant specialty. MCL 600.2169(1)(a); Woodard
II.
(22) Where a defendant physician is board certified in several specialties,
the plaintiff’s expert witness must be board certified in the specialty that the
defendant physician was engaged in during the course of the alleged malpractice,
i.e., the one most relevant specialty. MCL 600.2169(1)(a); Woodard II.
(23) If the defendant physician is a specialist, the plaintiff’s expert witness
must have devoted a majority of his professional time during the year immediately
preceding the date on which the alleged malpractice occurred to practicing or
teaching the specialty that the defendant physician was practicing at the time of
the alleged malpractice, i.e., the one most relevant specialty. MCL
600.2169(1)(b); Woodard II.
(24) If the defendant physician specializes in a subspecialty, the plaintiff’s
expert witness must have devoted a majority of his professional time during the
year immediately preceding the date on which the alleged malpractice occurred to
practicing or teaching the subspecialty that the defendant physician was practicing
at the time of the alleged malpractice, i.e., the one most relevant subspecialty.
MCL 600.2169(1)(b); Woodard II.
(25) Because an expert is qualified under MCL 600.2169(1) does not mean
that the trial court cannot disqualify the expert on other grounds. MCL
600.2169(2); § 2169(3); MCL 600.2955; MRE 702; Woodard II.
14
STATE OF MICHIGAN
SUPREME COURT
JOHANNA WOODARD, Individually
and as Next Friend of AUSTIN D.
WOODARD, a Minor, and STEVEN
WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v No. 124994
JOSEPH R. CUSTER, M.D.,
Defendant-Appellant
and Cross-Appellee,
and
MICHAEL K. LIPSCOMB, M.D.,
MICHELLE M. NYPAVER, M.D., and
MONA M. RISKALLA, M.D.,
Defendants.
______________________________/
JOHANNA WOODARD, Individually
and as Next Friend of AUSTIN D.
WOODARD, a Minor, and STEVEN
WOODARD,
Plaintiffs-Appellees, and
Cross-Appellants
v No. 124995
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant, and
Cross-Appellee
______________________________/
SHIRLEY HAMILTON, as Personal
Representative of the Estate of
ROSALIE ACKLEY, Deceased,
Plaintiff-Appellee,
v No. 126275
BLUE CROSS/BLUE SHIELD OF
MICHIGAN,
Intervening Plaintiff,
v
MARK F. KULIGOWSKI, D.O.,
Defendant-Appellant.
_______________________________
TAYLOR, C.J. (concurring in the result only).
We concur in that portion of Justice Markman’s concurrence stating that a
defendant physician’s multiple areas of specialty “may be considered under §
2169(2) and MRE 702” in barring the testimony of an expert witness who does not
possess the same multiple areas of medical specialty. Ante at 5 (emphasis
omitted). Thus, we agree with Justice Markman’s concurring opinion that there
can be more than one relevant area of medical specialty at issue in establishing a
breach of the applicable standard of care, and that a proffered expert may be
excluded on that basis. At first glance, Justice Markman’s concurrence appears to
2
be inconsistent with his lead opinion because the lead opinion would only permit
evidence of a singular medical specialty to be adduced. The lead opinion
concludes that the trial court must choose one, and only one, specialty that is
relevant to establishing the appropriate standard of care and precludes the parties
from introducing expert testimony with regard to any other relevant specialty.
Justice Markman’s concurrence, however, concludes, as we do, that more than one
medical specialty may be germane in establishing the requisite standard of care
and that plaintiffs may be required to introduce expert testimony regarding other
relevant specialties.
Furthermore, we agree with Justice Markman’s concurring opinion that the
practice and teaching requirements in MCL 600.2169(1)(b) preclude any expert
from providing testimony regarding more than one specialty area. Thus, because
he opines that plaintiffs can be obligated to produce expert testimony regarding
more than one specialty area, and every expert may only testify regarding one
specialty area, it logically follows that plaintiffs must be able to utilize more than
one expert to establish a breach of the applicable standard of care, a conclusion
with which we wholeheartedly agree.
Thus, we believe that Justice Markman’s “concurrence” more closely
resembles this opinion than the lead opinion. We therefore concur with his
concurrence insofar as it concludes that there can be more than one specialty
germane to establishing the appropriate standard of care, and also insofar as it
implicitly stands for the conclusion that multiple experts may be utilized in
3
establishing a breach of the appropriate standard of care.1 As such, there are four
votes for these two conclusions of law, just as the lead opinion purports to carry
four votes for the conclusions that there can be only one relevant specialty and that
only one expert may be utilized.2 However, in this peculiar, perhaps
unprecedented, situation, we conclude that Justice Markman’s concurrence,
insofar as it concludes that multiple specialties may be relevant and that multiple
experts may be utilized, is the law. Certainly, the fact that Justice Markman lends
his signature to two incompatible opinions does not lead to the conclusion that he
may cast two separate votes. Rather, because his concurrence was written
conceptually later in time than his lead opinion, his concurrence is the law. While
some of our analysis goes beyond these two points of his concurrence, it is
submitted as the better approach to the statute under review and may be of use in
later cases.
1
We do not, however, agree with his conclusion that the trial court, rather
than the parties themselves or the jury, is to determine which specialties are
germane. We also do not join in his appendix, because much of its discussion is
obiter dictum.
2
The lead opinion asserts that it has four votes, apparently believing that
stating it makes it so. However, as we have pointed out, the inconsistencies
between Justice Markman’s concurrence and his lead opinion evince that the lead
opinion does not, in fact, carry four votes. Further evidence that Justice
Markman’s concurrence is not in harmony with the lead opinion is that he had to
file it because none of the other justices signing his lead opinion agree with his
position.
4
INTRODUCTION
In these medical malpractice cases, we granted leave to appeal to consider
whether plaintiffs’ proposed expert witnesses qualify under MCL 600.2169 to
testify regarding what standards of care the defendant doctors should have met.
The trial courts in both cases granted defendants’ motions to strike plaintiffs’
proposed experts on the basis that they were not qualified under MCL 600.2169.
In Woodard, a majority of the Court of Appeals affirmed the trial court’s ruling on
this issue.3 In Hamilton, the Court of Appeals reversed the trial court’s judgment.4
We conclude in both cases that plaintiffs’ proposed experts do not meet the
requirements of MCL 600.2169 and, therefore, that plaintiffs have failed to present
expert testimony sufficient to support their claims. Therefore, in Woodard, we
affirm the part of the Court of Appeals judgment that held that plaintiffs’ proposed
expert is not qualified and remand this case to the circuit court for reinstatement of
its order dismissing plaintiffs’ claim with prejudice. In Hamilton, we reverse the
Court of Appeals judgment that plaintiff’s proposed expert is qualified and remand
3
Unpublished opinion per curiam of the Court of Appeals and separate
unpublished opinion concurring in part and dissenting in part by Meter, J., issued
October 21, 2003 (Docket Nos. 239868, 239869). A separate majority, however,
determined that the doctrine of res ipsa loquitur applied to obviate plaintiffs’ need
to present expert testimony. Unpublished opinion concurring in part and
dissenting in part by Meter, J., and unpublished dissenting opinion by Borrello, J.
We have previously reversed that portion of the Court of Appeals holding in
Woodard v Custer, 473 Mich 1; 702 NW2d 522 (2005) (Woodard I).
4
261 Mich App 608; 684 NW2d 366 (2004).
5
this case to the circuit court for reinstatement of its order granting a directed
verdict to defendant.
I. FACTS AND PROCEEDINGS BELOW
A. WOODARD v CUSTER
We summarized the facts underlying this case in our recent decision in
Woodard I:
Plaintiffs’ fifteen-day-old son was admitted to the Pediatric
Intensive Care Unit (PICU) at the University of Michigan Hospital,
where he was treated for a respiratory problem. During his stay in
the PICU, he was under the care of Dr. Joseph R. Custer, the
Director of Pediatric Critical Care Medicine. When the infant was
moved to the general hospital ward, physicians in that ward
discovered that both of the infant’s legs were fractured. Plaintiffs
sued Dr. Custer and the hospital, alleging that the fractures were the
result of negligent medical procedures, namely, the improper
placement of an arterial line in the femoral vein of the infant’s right
leg and the improper placement of a venous catheter in the infant’s
left leg.
Defendant physician is board-certified in pediatrics and has
certificates of special qualifications in pediatric critical care
medicine and neonatal-perinatal medicine. Plaintiffs’ proposed
expert witness, who signed plaintiffs’ affidavit of merit, is board-
certified in pediatrics, but does not have any certificates of special
qualifications.
Before discovery, the trial court denied defendants’ motion
for summary disposition, concluding that plaintiffs’ attorney had a
“reasonable belief” under MCL 600.2912d(1) that plaintiffs’
proposed expert witness was qualified under MCL 600.2169 to
testify against the defendant physician, and, thus, that plaintiffs’
affidavit of merit was sufficient. After discovery, the trial court
granted defendants’ motion to strike plaintiffs’ expert witness on the
basis that he was not actually qualified under MCL 600.2169 to
testify against the defendant physician. The trial court dismissed
plaintiffs’ claim with prejudice, concluding that plaintiffs could not
reach a jury without expert testimony.
6
The Court of Appeals affirmed the trial court’s ruling that
plaintiffs’ proposed expert witness was not qualified under MCL
600.2169 to testify against the defendant physician (Judge Borrello
dissented on this issue), but reversed the trial court’s dismissal on
the basis that expert testimony was unnecessary under the doctrine
of res ipsa loquitur, i.e., an inference of negligence may be drawn
from the fact that the infant was admitted to the PICU with healthy
legs and discharged from the PICU with fractured legs (Judge Talbot
dissented on this issue).[5] The case was remanded for trial.
Defendants sought leave to appeal the Court of Appeals
decision that res ipsa loquitur applies and that expert testimony was
not necessary. Plaintiffs sought leave to cross-appeal the Court of
Appeals decision that their proposed expert witness was not
qualified under MCL 600.2169 to testify against the defendant
physician. We heard oral argument on whether to grant the
applications or take other peremptory action permitted by MCR
7.302(G)(1).[6] [Woodard I, supra, 473 Mich at 3-5.]
After hearing oral argument, we issued our opinion in Woodard I, which
concerned only defendants’ application for leave to appeal. In that opinion, we
reversed the Court of Appeals decision that res ipsa loquitur applied to relieve
plaintiffs of the need to present expert testimony.7 Because our decision in
Woodard I required plaintiffs to produce expert testimony to support their claims,
we simultaneously granted plaintiffs’ cross-application for leave to appeal the
5
Unpublished opinion per curiam of the Court of Appeals and separate
opinion concurring in part and dissenting in part by Meter, J., and separate
dissenting opinion by Borrello, J., decided October 21, 2003 (Docket Nos. 239868,
239869).
6
471 Mich 890 (2004).
7
Woodard I, supra, 473 Mich at 9-10.
7
Court of Appeals determination that their proposed expert was not qualified under
MCL 600.2169.8
B. HAMILTON v KULIGOWSKI
Between 1992 and 1998, defendant Dr. Mark F. Kuligowski treated Rosalie
Ackley for hypertension, diabetes, weight control, and a thyroid ailment. On
March 19, 1998, Ackley, who was in her seventies, complained of numbness and
weakness in her left arm. She further informed Kuligowski that she had been
diagnosed with a blockage in her neck several years earlier. After detecting
abnormal sounds in Ackley’s carotid artery during a physical examination,
Kuligowski suspected that she had suffered a minor stroke and possibly suffered
from bilateral carotid artery disease. Although he ordered a bilateral carotid
Doppler echocardiography,9 Kuligowski advised Ackley that there was no cause
for immediate concern. Three days later, Ackley suffered a stroke. She
subsequently died in December 2000.
Plaintiff, Ackley’s daughter, filed the instant medical malpractice action on
behalf of Ackley’s estate alleging that Kuligowski was negligent in failing to
recognize Ackley’s prestroke symptoms and render appropriate treatment.
Kuligowski is board-certified in internal medicine, and primarily sees geriatric
8
473 Mich 856 (2005).
9
A “Doppler echocardiography” is an “ultrasound used to measure
cardiovascular blood flow velocity for diagnostic purposes (as for evaluating valve
function).” Merriam Webster’s Medline Plus, (accessed January 9, 2006).
8
patients. In support of her claims, plaintiff called as a witness a proposed expert
who, like Kuligowski, is board-certified in internal medicine. Plaintiff’s proposed
expert spends half of his professional time in his office treating internal medicine
and infectious disease patients and the other half in a hospital treating primarily
infectious disease patients.
Kuligowski moved to strike plaintiff’s proposed expert, arguing that he was
not qualified under MCL 600.2169 to testify with regard to the appropriate
standard of care because he specializes in infectious diseases while Kuligowski
himself specializes in general internal medicine. The circuit court granted
Kuligowski’s motion, ruling that plaintiff’s proposed expert was not qualified
under MCL 600.2169(1)(b) because he did not devote a majority of his time to the
practice of general internal medicine but, instead, to the treatment of infectious
diseases. Thereafter, the circuit court also granted Kuligowski’s motion for a
directed verdict on the basis that plaintiff did not have a qualified expert to support
her claims.
The Court of Appeals reversed the trial court’s ruling and held that
plaintiff’s proposed expert was qualified under MCL 600.2169. The panel
concluded that the treatment of infectious diseases was merely a “subspecialty”
within the broader specialty of internal medicine, and that the statute does not
require the matching of subspecialties. It further concluded that, because the
treatment of infectious diseases is merely a branch of internal medicine with a
narrower focus, plaintiff’s proposed expert did, in fact, devote a majority of his
9
time to the practice of internal medicine. The Court of Appeals therefore
remanded the case for further proceedings.10
We granted Kuligowski’s application for leave to appeal.11
II. STANDARD OF REVIEW
These cases involve the interpretation of MCL 600.2169. We review
questions of statutory interpretation de novo.12 As always, our goal is to discern
and give effect to the legislative intent that is expressed in the statutory language.13
If the statutory language is unambiguous, then the Legislature’s intent is clear and
we must enforce the statute as written.14
III. ANALYSIS
Before 1986, the question whether a plaintiff’s proposed expert was
qualified to testify with regard to the appropriate standard of care in a medical
malpractice case was governed by MRE 702.15 This evidentiary rule provided trial
10
261 Mich App 608; 684 NW2d 366 (2004).
11
473 Mich 858 (2005).
12
Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004).
13
Halloran v Bhan, 470 Mich 572, 576; 683 NW2d 129 (2004).
14
Mayor of Lansing v Pub Service Comm, 470 Mich 154, 157; 680 NW2d
840 (2004).
15
At the time the first version of MCL 600.2169 was enacted in 1986,
MRE 702 provided:
(continued…)
10
courts with broad discretion to qualify proposed experts if they determined that
scientific, technical, or other specialized knowledge was needed to assist the trier
of fact in determining the appropriate standard of care the defendant doctor should
have met and that the proposed expert was qualified to offer such testimony on the
basis of the expert’s “‘knowledge, skill, experience, training, or education.’”16
However, as we discussed in McDougall v Schanz,17 our Legislature
ultimately deemed MRE 702 ineffective in assuring that proposed experts
(…continued)
If the court determines that recognized scientific, technical, or
other specialized knowledge will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.
A recent amendment of MRE 702, which became effective on January 1, 2004,
further limits a trial court’s discretion to qualify a proposed expert by adding that
the court may only admit the expert’s testimony if:
(1) the testimony is based on sufficient facts or data, (2) the
testimony is the product of reliable principles and methods, and (3)
the witness has applied the principles and methods reliably to the
facts of the case.
As stated in the staff comments that follow MRE 702, the purpose of this
amendment was to emphasize the trial court’s role as gatekeeper to exclude expert
testimony that is unreliable because it is based on unproven theories or
methodologies in conformance with Daubert v Merrell Dow Pharmaceuticals, Inc,
509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993), and Kumho Tire Co, Ltd v
Carmichael, 526 US 137; 119 S Ct 1167; 143 L Ed 2d 238 (1999).
16
See McDougall v Schanz, 461 Mich 15, 25; 597 NW2d 148 (1999),
quoting MRE 702.
17
Id.
11
presented reliable testimony in medical malpractice cases.18 The primary
deficiency with MRE 702 was that it failed to ensure that trial judges excluded
proposed experts who were not actively involved in the medical field about which
they sought to testify.19 Therefore, in 1986 our Legislature enacted the first
version of MCL 600.2169, which was designed to limit a trial court’s discretion to
qualify experts in medical malpractice cases by systematically “preclud[ing]
18
Id. at 25, 36.
19
McDougall, supra, 461 Mich at 25 n 9, quoting the dissenting Court of
Appeals judge’s opinion in McDougall, 218 Mich App 501, 509 n 1; 554 NW2d
56 (1996) (Taylor, P.J., dissenting), quoting the Report of the Senate Select
Committee on Civil Justice Reform, issued September 26, 1995:
“As a practical matter, in many courts merely a license to
practice medicine is needed to become a medical expert on an issue.
“This has given rise to a group of national professional
witnesses who travel the country routinely testifying for plaintiffs in
malpractice actions. These ‘hired guns’ advertise extensively in
professional journals and compete fiercely with each other for the
expert witness business. For many, testifying is a full-time
occupation and they rarely actually engage in the practice of
medicine. There is a perception that these so-called expert witnesses
will testify to whatever someone pays them to testify about.
“This proposal is designed to make sure that expert witnesses
actually practice or teach medicine. In other words, to make sure that
experts will have firsthand practical expertise in the subject matter
about which they are testifying. In particular, with the malpractice
crisis facing high-risk specialists, such as neurosurgeons, orthopedic
surgeons and ob/gyns, this reform is necessary to insure that in
malpractice suits against specialists the expert witnesses actually
practice in the same speciality. This will protect the integrity of our
judicial system by requiring real experts instead of ‘hired guns.’”
12
certain witnesses from testifying solely on the basis of the witness’ lack of practice
or teaching experience . . . .”20
Our Legislature further limited the discretion of trial judges to qualify
proposed experts in 1993 when it enacted 1993 PA 78, which amended MCL
600.2169 to set forth even more restrictive criteria than the 1986 version.21 In its
current form, MCL 600.2169 now provides, in pertinent part:
(1) 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
20
McDougall, supra, 461 Mich at 24-25.
21
McDougall, supra, 461 Mich at 21 n 2.
13
that party is a specialist, an accredited health professional school or
accredited residency or clinical research program in the same
specialty.[22]
* * *
(3) This section does not limit the power of the trial court to
disqualify an expert witness on grounds other than the qualifications
set forth in this section.
Accordingly, these provisions set forth a number of specific, minimum
criteria that a proposed expert must satisfy in order to testify regarding the
appropriate standard of care in a medical malpractice case.23 The first of these, of
22
Like MCL 600.2169(1)(a) and (b), which set forth the minimum criteria
for proposed experts who will testify regarding the standard of care that a
specialist should have followed, MCL 600.2169(1)(c) sets forth criteria for cases
involving general practitioners. Because both these cases involve specialists,
however, MCL 600.2169(1)(c) is not germane to our decision. Additionally, MCL
600.2169(2) sets forth specific criteria that a trial court must consider when
determining whether any proposed expert in a medical malpractice case—not just
those offered to testify regarding the appropriate standard of care, but such matters
as causation, and so forth—is qualified to testify. Halloran, supra, 470 Mich at
578 n 6. However, because both proposed experts in these cases sought to testify
with regard to the appropriate standard of care, their qualification is governed by
the more specific requirements of MCL 600.2169(1). Id. Therefore, MCL
600.2169(2) is also not relevant to our decision in these cases.
23
We agree with the lead opinion that, although we refer to MCL
600.2169(1) throughout this opinion as imposing requirements on proposed
plaintiff’s experts, the statute applies equally to standard of care experts offered by
the defendant because it applies to standard of care testimony offered “against”
and on “behalf” of the defendant doctor. The lead opinion seems to think we
disagree with this, ante at 9 n 5, but that is not the case. Instead, what we point
out later in this opinion is that, contrary to the lead opinion’s apparent belief, it
will not always be defendants that assert that multiple specialties are germane to
establishing the standard of care that the defendant doctor should have exercised.
Rather, we believe there will be circumstances in which plaintiffs will also assert
that more than one of the defendant doctor’s specialty areas are germane to
understanding the standard of care the defendant doctor should have exercised.
14
course, is that the proposed expert must be a licensed health professional.24 The
statute then goes on to set forth several additional requirements aimed at ensuring
that the proposed expert possesses the same professional credentials as the
defendant doctor, thereby assuring that the proposed expert is familiar with the
standards and techniques that should typically be followed by a physician in the
defendant’s position. In particular, the statute requires that if the defendant doctor
is a specialist, the proposed expert must also be a specialist in the same specialty.
Further, if the defendant doctor is a board-certified specialist, the proposed expert
must also be a board-certified specialist in the same specialty.25
Moreover, in addition to requiring that the proposed expert possess the
same specialty qualifications as the defendant doctor, the statute, unlike MRE 702,
also seeks to ensure that the proposed expert possesses actual, recent experience in
that specialty area. It does this by requiring that the proposed expert have devoted
a majority of his or her professional time during the year preceding the alleged
malpractice to either the active clinical practice of the defendant’s specialty area or
to the instruction of that specialty area.26
Finally, the statute makes clear that the above requirements represent only
the bare minimum that a proposed expert must meet in order to testify regarding
24
MCL 600.2169(1).
25
MCL 600.2169(1)(a).
26
MCL 600.2169(1)(b).
15
the standard of care. It does this by explicitly granting a trial court the discretion
to disqualify a proposed expert for other, unenumerated reasons;27 for example, if
the trial court determines that the proposed expert’s testimony is unreliable under
MCL 600.295528 or the three factors recently added to MRE 702.
A. “SPECIALIST” DEFINED
As is obvious from the above synopsis of the statute, the determination
whether a proposed expert is minimally qualified to testify regarding the
appropriate standard of care often turns on whether the defendant doctor qualifies
as a specialist in a given area of medicine, thereby requiring the proposed expert to
likewise qualify as a specialist in that area. MCL 600.2169, however, does not
define the term “specialist.” It therefore falls upon us to accord a meaning to that
term that best comports with the Legislature’s intent. In doing so, we are guided
by two principles. The first is that MCL 600.2169 does not stand alone. Rather,
“[i]t exists and must be read in context with the entire act, and the words and
phrases used there must be assigned such meanings as are in harmony with the
27
MCL 600.2169(3).
28
MCL 600.2955 requires a trial court to determine whether a scientific
opinion rendered by an otherwise qualified expert is reliable by assessing, among
other things, whether the opinion and its basis have been subjected to testing and
peer review publication. MCL 600.2955(3) specifically provides that the
provisions of MCL 600.2955 are in addition to the criteria for expert testimony in
medical malpractice actions provided in MCL 600.2169.
16
whole of the statute . . . .”29 The second comes from the Legislature’s decree in
MCL 8.3a that undefined words or phrases shall be given their common and
ordinary meaning, but that technical words and phrases, and legal terms of art, are
to be construed according to their peculiar and appropriate meaning.30
Applying the first of these principles, we first note that some indication
regarding the meaning of the term “specialist” can be gleaned from the
relationship of MCL 600.2169 to MCL 600.2912d(1).31 The latter statute, in
conjunction with MCL 600.2169, requires the plaintiff’s counsel to file an
affidavit of merit with the complaint that is signed by a physician who counsel
reasonably believes specializes in the same specialty as the defendant physician.32
Accordingly, the Legislature intended for a plaintiff to be able to form a
29
Arrowhead Dev Co v Livingston Co Rd Comm, 413 Mich 505, 516; 322
NW2d 702 (1982).
30
MCL 8.3a provides:
All words and phrases shall be construed and understood
according to the common and approved usage of the language; but
technical words and phrases, and such as may have acquired a
peculiar and appropriate meaning in the law, shall be construed and
understood according to such peculiar and appropriate meaning.
31
MCL 600.2912d(1) provides in relevant part:
[T]he plaintiff in an action alleging medical malpractice or, if
the plaintiff is represented by an attorney, the plaintiff’s attorney
shall file with the complaint an affidavit of merit signed by a health
professional who the plaintiff’s attorney reasonably believes meets
the requirements for an expert witness under section 2169.
32
Grossman, supra, 470 Mich at 596.
17
reasonable belief regarding whether a defendant doctor is a specialist at the
commencement of the action—i.e., before the discovery process. Therefore, it is
reasonable to conclude that the Legislature intended for the determination whether
a defendant doctor is a specialist to correlate to how the defendant doctor
subjectively represents himself or herself; in other words, whether the doctor holds
himself or herself out as a specialist.
Further indication of what the Legislature intended when it used the term
“specialist” can be gleaned from dictionary definitions. Because MCL 600.2169
uses the term “specialist” in the context of a medical specialist, it is a technical
term that must be accorded its “peculiar and appropriate meaning” within the
medical community. MCL 8.3a. Accordingly, it is necessary in this instance for
us to refer to medical, rather than lay, dictionaries.33
Some medical dictionaries base the determination whether a doctor is a
specialist on how that doctor allocates time during practice; in other words,
whether that doctor limits his or her practice primarily to a particular branch of
33
We realize that in Cox v Flint Bd of Hosp Managers, 467 Mich 1, 18-19;
651 NW2d 356 (2002), quoting Random House Webster’s College Dictionary
(1997), this Court defined the term “specialist” as “‘a medical practitioner who
deals only with a particular class of diseases, conditions, patients, etc.’” There, we
listed several medical terms with their definitions as a reference for the issue under
discussion in that case: the scope of a nurse’s responsibilities. Id. Accordingly,
we are not bound by this dictum, particularly where we resolved that case on
another ground.
18
medicine or surgery, or to a certain class of patients, organs, or diseases.34 Other
medical dictionaries, however, define a specialist not according to how the doctor
allocates time, but rather according to whether the doctor has advanced training or
knowledge in a specific branch of medicine or surgery, or a certain class of
patients, organs, or diseases.35
34
See Dorland’s Illustrated Medical Dictionary (28th ed), defining 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.” Accord
Gould Medical Dictionary (3d ed), which similarly defines a “specialist” as “[a]
physician or surgeon who limits his practice to certain diseases, or to the diseases
of a single organ or class, or to a certain type of therapy . . . .” See also Stedman’s
Medical Dictionary (26th ed), defining a “specialist” as “[o]ne who devotes
professional attention to a particular specialty or subject area,” and a “specialty” as
“[t]he particular subject area or branch of medical science to which one devotes
professional attention.”
35
See Taber’s Cyclopedic Medical Dictionary (18th ed), which defines
“specialist” as
[a] dentist, nurse, physician, or other health professional who has
advanced education and training in one clinical area of practice such
as internal medicine, pediatrics, surgery, ophthalmology, neurology,
maternal and child health, or cardiology. In most specialized areas
of health care, there are organizations offering qualifying
examinations. When an individual meets all of the criteria of such a
board, he or she is called “board certified” in that area.
See also Mosby’s Medical Dictionary (6th ed), which defines “specialist”
as “a health care professional who practices a specialty.” It then defines
“specialty” as
a branch of medicine or nursing in which the professional is
specially qualified to practice by having attended an advanced
program of study, by having passed an examination given by an
(continued…)
19
Thus, taking into consideration these technical definitions of the term
“specialty,” as well as the meaning that can be ascribed to it from the relationship
of MCL 600.2169 to MCL 600.2912d(1), we conclude that the Legislature
intended the term “specialist” as used in MCL 600.2169 to denote a physician who
holds himself or herself out as either (1) limiting his or her practice primarily to a
particular branch of medicine or surgery, or to a certain class of patients, organs,
or diseases, or (2) having advanced training or knowledge in a specific branch of
medicine or surgery, or a certain class of patients, organs, or diseases.36
We note at this point that many areas of specialization contain narrower,
more limited areas within them. For instance, a physician who specializes in
pediatrics can focus on general pediatric care, or can further concentrate on the
more limited fields of pediatric critical care or neonatal-perinatal care. Similarly,
(…continued)
organization of the members of the specialty, or by having gained
experience through extensive practice in the specialty.
36
In their briefs filed in this Court, the plaintiffs in both Woodard and
Hamilton, as well as several of their amici, have argued emphatically that a
“specialty” area must be defined as being synonymous with the areas of medicine
in which a doctor can obtain board certification from either the American Board of
Medical Specialties (ABMS) or the American Osteopathic Association (AOA). In
support of this argument, they rely on the Legislature’s mandate in MCL
600.2169(1)(a) that if the defendant doctor is a board-certified specialist, the
proposed expert witness “must be a specialist who is board certified in that
specialty.” (Emphasis added.) We disagree. Although this language indicates that
specialty areas can overlap with areas in which a doctor can obtain board
certification, it in no way limits the definition of specialty to only those areas.
Moreover, the above definitions of the term “specialist” from Taber’s and
Dorland’s make clear that the areas of medicine in which a doctor can specialize
are not limited only to those in which a doctor can obtain board certification.
20
a physician who specializes in internal medicine can focus on general internal
medicine or further concentrate his or her practice on any one of numerous, more
limited fields such as cardiology, infectious diseases, gastroenterology,
nephrology, and so forth. Plaintiffs maintain that the term “specialty” refers only
to those areas of medicine that are recognized and designated as such by the
American Board of Medical Specialties (ABMS) and the American Osteopathic
Association (AOA). Under the ABMS/AOA framework, more generalized fields
are termed “specialties” and more limited fields are termed “subspecialties.”
Thus, plaintiffs argue that their proposed experts’ qualifications and the defendant
doctors’ qualifications need only match at the broader, more generalized level.
They assert that the narrower, more focused areas are not specialties but
“subspecialties” under the ABMS/AOA framework and that the language of MCL
600.2169 does not contemplate subspecialties.
We reject this assertion. The plain language of MCL 600.2169(1)(a) is
completely devoid of any indication that the Legislature intended that a
physician’s “specialty” be circumscribed by the designations given by the ABMS
and the AOA. Clearly, the unambiguous language of MCL 600.2169(1)(a)
contemplates board-certified specialists as well as non-board-certified specialists.
Because the statute permits a physician to be a “specialist” without board
certification of any variety, there is no basis to conclude that the designations
given by optional certifying organizations dictate a physician’s “specialist”
21
status.37 Moreover, permitting the “specialty” designations given by the ABMS
and the AOA to determine a physician’s specialty would render MCL
600.2169(1)(c) nugatory. Because both certifying boards award specialty
certification in family medicine,38 every general practitioner would be considered
a “specialist” and subject to the expert witness requirements of MCL
600.2169(1)(a) instead of the expert witness requirements applicable to generalists
under § 2169(1)(c).
Instead, we turn to the generally accepted technical meaning of the term
“specialty,” which encompasses narrower, more focused areas of medical practice,
qualifying them as specialties in and of themselves.39 Thus, because the broader,
more generalized areas and the narrower, more limited areas within them both
constitute specialties under the accepted technical meaning of the word
37
As amicus ABMS acknowledges in its brief, a physician need not be
certified in a particular area of medicine in order to practice it. Thus, certifying
organizations such as the ABMS do not control a physician’s practice area. Such
organizations develop and administer various benchmarks of competency for those
physicians who voluntarily elect to be certified in their chosen areas of specialty.
38
The American Board of Family Medicine is a member board of the
ABMS. See (accessed April 20, 2006). The
American Osteopathic Board of Family Physicians is a member board of the
AOA. See (accessed April 20, 2006).
39
Our construction of the term “specialty” as also encompassing so-called
“subspecialties” is consistent with the technical meaning of the term
“subspecialty,” which is defined as “a subordinate field of specialization.”
Merriam Webster’s Medline Plus, (accessed January 9, 2006).
22
“specialty,” a plaintiff’s proposed expert must match the defendant doctor’s
qualifications at both levels.40
B. “BOARD-CERTIFIED” DEFINED
Once it is determined that a defendant doctor qualifies as a specialist in a
given area, the next inquiry is whether he or she also qualifies as a board-certified
specialist in that area. Before defining what it means to be board-certified,
however, one point bears emphasis. That is that the statute does not require the
matching of board certifications in and of themselves. Rather, it only makes board
certifications germane if the defendant doctor is a “specialist who is board
certified.” Accordingly, the fact that a defendant doctor has obtained a board
certification in a given area is irrelevant to the issue of credential matching unless
the defendant doctor first qualifies as a specialist in that area.
Like with the term “specialty,” the Legislature did not define the phrase
“board certified” in MCL 600.2169. Because of this, the plaintiffs in both these
cases have argued that we should read MCL 600.2169 in pari materia with MCL
333.2701(a) of the Public Health Code, which defines “board certified” as
“certified to practice in a particular medical specialty by a national board
40
An example of a case where a plaintiff’s proposed expert did not match
the defendant doctor’s qualifications at both levels can be seen in our recent
decision in Halloran v Bhan, 470 Mich 572; 683 NW2d 129 (2004). In Halloran,
we held that the plaintiff’s proposed expert failed to meet the requirements of
MCL 600.2169 because, although he arguably matched the defendant doctor’s
credentials at the subspecialty level, he failed to match them at the broader
specialty level. Id.
23
recognized by the American board of medical specialties [ABMS] or the
American osteopathic association [AOA].” Accordingly, plaintiffs urge this Court
to hold that a proposed expert need only match a defendant doctor’s board
certification if that certification was issued by the ABMS or the AOA.
We decline to impute the definition of “board certified” from MCL
333.2701(a) to MCL 600.2169 for several reasons. First, the Legislature made
clear that the definition of “board certified” set forth in MCL 333.2701(a) applies
only to the Public Health Code by prefacing it with the statement “As used in this
part [of the Public Health Code] . . . ‘Board certified’ means . . . .” (Emphasis
added.) Especially in light of such clear words of limitation, we must presume
that the Legislature intended that the definition of “board certified” set forth in
MCL 333.2701(a) would not be applied to other statutes using the same phrase.41
Second, statutes are only read in pari materia when they relate to the same subject
or share a common purpose,42 and not when, as here, their scope and aim are
41
See Grimes v Dep’t of Transportation, 475 Mich 72, 85; 715 NW2d 275
(2006); see also Farrington v Total Petroleum, Inc, 442 Mich 201, 210; 501
NW2d 76 (1993) (“Courts cannot assume that the Legislature inadvertently
omitted from one statute the language that it placed in another statute, and then, on
the basis of that assumption, apply what is not there.”); Detroit v Redford Twp,
253 Mich 453, 456; 235 NW 217 (1931) (“Courts cannot attach provisions not
found therein to an act of the legislature because they have been incorporated in
other similar acts.”), citing Michigan v Sparrow, 89 Mich 263, 269; 50 NW 1088
(1891).
42
Detroit v Michigan Bell Tel Co, 374 Mich 543, 558; 132 NW2d 660
(1965).
24
distinct and unconnected.43 The Legislature’s purpose in enacting the Public
Health Code was to protect the public health, safety, and welfare,44 by regulating
the persons, facilities, and agencies that affect them. Its purpose in enacting the
Revised Judicature Act, of which MCL 600.2169 is a part, was to set forth the
organization and jurisdiction of the judiciary and to effect procedural
improvements in civil and criminal actions.45 MCL 600.2169 fulfills this purpose
by setting minimum requirements for proposed experts to ensure that proof of
medical malpractice “‘emanate[s] from sources of reliable character,’”46 and is
unrelated to protecting the health, safety, and welfare of the general public.
We thus fall back on the general rule set forth in MCL 8.3a that undefined,
technical phrases are to be construed and understood according to their peculiar
and appropriate meaning. We also keep in mind that if the Legislature had wanted
to limit the definition of “board certified” in MCL 600.2169 only to certification
by specific organizations it would have done so explicitly, as it did in MCL
43
Beznos v Dep’t of Treasury (On Remand), 224 Mich App 717, 722; 569
NW2d 908 (1997).
44
MCL 333.1111(2).
45
See Connelly v Paul Ruddy’s Equip Repair & Service Co, 388 Mich 146,
151; 200 NW2d 70 (1972) (“The purpose of the Act was to effect procedural
improvements, not advance social, industrial or commercial policy in substantive
areas.”).
46
McDougall, surpa 461 Mich at 36, quoting McDougall, supra, 218 Mich
App at 518 (Taylor, P.J., dissenting).
25
333.2701(a).47 Doing so, we adopt the definition of “board certified” set forth by
the Appellate Division of the Supreme Court of New York,48 which has defined
that term as denoting “a credential bestowed by a national, independent medical
board indicating proficiency in a medical specialty.”49
As we did above with regard to the “specialty” versus “subspecialty”
dispute, it is again necessary for us to resolve a question that arises in most cases
as a result of nomenclature often used to distinguish between certifications offered
47
A further indication that the Legislature intended to limit the phrase
“board certified” to certification by either the ABMS or the AOA only for the
purposes of the Public Health Code is that it did not limit the phrase in either of
the other two instances it has defined it. Specifically, in both MCL 500.2212a(4)
of the Insurance Code and MCL 550.1402a(4) of the Nonprofit Health Care
Corporation Reform Act, the Legislature defined “board certified” as certification
by the ABMS or another “national health professional organization.”
48
The state of New York calls its equivalent to Michigan’s circuit court
(i.e., the trial court of general jurisdiction) the Supreme Court. The Appellate
Division of the Supreme Court of New York is the equivalent of the Michigan
Court of Appeals.
49
Rosenblum v New York State Workers’ Compensation Bd, 309 AD2d
120, 123; 764 NYS2d 82 (2003). This definition is consistent with how medical
dictionaries define the phrase. See Taber’s Cyclopedic Medical Dictionary (18th
ed), defining “board certification,” in part, as “a process that ensures that an
individual has met standards beyond those of admission to licensure and has
passed specialty examinations in the field.”
The justices in the lead opinion state that they find it “befuddling” that we
have adopted the definition of “board certified” from Rosenblum without further
explanation. However, we have explained, we believe, that we adopted the
definition from Rosenblum because it is consistent with the technical, medical
definition of the term as required by MCL 8.3a and, simultaneously, is consistent
with our Legislature’s intention that the phrase “board certified” not be limited
only to credentials bestowed by certain national organizations.
26
for broad specialty areas and certifications offered for the narrower subspecialty
areas. Specifically, certifications coinciding with the broader specialty areas are
often referred to by parties and in case law as board certifications, while
certifications coinciding with the narrower specialty areas are referred to as
“certificates of special qualifications” or “certificates of added qualifications.”
The result is that in many cases, such as Woodard, plaintiffs will argue that
certificates of special qualifications are not board certifications that need to be
matched. We clarify, however, that under the above definition of the phrase
“board certified,” any difference between what are traditionally referred to as
board certifications and what have commonly been called certificates of special
qualifications is merely one of semantics. When a certificate of special
qualifications is a credential bestowed by a national, independent medical board
indicating proficiency in a medical specialty, it is itself a board certification that
must be matched.
C. WHETHER ALL SPECIALTIES AND BOARD CERTIFICATIONS
MUST BE MATCHED
Because many defendant doctors specialize in more than one area, or have
become board-certified specialists in more than one area, the question often arises
whether MCL 600.2169 requires that a proposed plaintiff’s expert match all the
defendant doctor’s specialties and board certifications. In Tate v Detroit Receiving
27
Hosp,50 our Court of Appeals answered this question in the negative. Relying
primarily on the statute’s mandate that a proposed expert must “‘specialize[] at the
time of the occurrence that is the basis of the action’” in the same specialty as the
defendant doctor,51 the Tate panel concluded that MCL 600.2169 “should be read
so as to allow an expert to testify if that expert [specializes in or] is [a] board
certified [specialist] in the same specialty being practiced by the [defendant]
health professional at the time of the alleged malpractice.”52 While we generally
agree with the result reached by the Court of Appeals in Tate, we disavow its
rationale.
The primary flaw with the Court of Appeals holding in Tate is that it bases
its conclusion regarding what expert testimony is required on the language of
MCL 600.2169. By its plain terms, however, MCL 600.2169 never requires a
plaintiff to introduce expert testimony with regard to the standard of care. Instead,
it merely states that if a plaintiff needs to introduce expert testimony to establish
the appropriate standard of care, the expert introduced must meet the requirements
set forth in the statute. Thus, the issue whether a plaintiff needs to introduce
expert testimony at all, and, if so, whether the plaintiff needs to introduce expert
testimony concerning the standard of care applicable to all the defendant doctor’s
50
249 Mich App 212; 642 NW2d 346 (2002).
51
Id. at 218, quoting MCL 600.2169(1)(a)(emphasis added).
52
Id. at 215 (emphasis in Tate).
28
specialties and board certifications, depends not on MCL 600.2169, but on the
specialties and board certifications that are put into issue by the parties during the
pleading and discovery process. To illustrate this point, we provide the following
hypothetical examples:
1. Assume a plaintiff sues a doctor who has five specialties, but asserts in
the complaint and accompanying affidavit of merit that the defendant doctor
should have met the standard of care coinciding with only one of the defendant
doctor’s specialties, and that the defendant doctor’s other four specialties are
irrelevant to establishing and understanding that standard of care. Further assume
that, in the answer, the defendant doctor admits that the plaintiff has asserted the
appropriate standard of care, further admits that the challenged actions did not
conform to it, and only contests the amount of damages.53 In this situation, the
plaintiff need not present expert testimony regarding the standard of care at trial.
The plaintiff need only offer evidence regarding damages. MCL 600.2169 is thus
inapplicable. The result would be the same in a case where a plaintiff is able to
successfully avail himself or herself of the doctrine of res ipsa loquitur.
2. Assume again that the plaintiff sues a doctor who has five specialties,
and again asserts in the complaint and accompanying affidavit that the defendant
53
Although we refer only to the defendant doctor’s answer and affidavit of
meritorious defense in these hypothetical examples, the parties can, of course,
further refine which specialties and board certifications are at issue through
subsequent discovery techniques such as depositions, requests for admissions,
written interrogatories, and so forth.
29
doctor should have met the standard of care coinciding with only one of the
defendant doctor’s specialties, and that the defendant doctor’s other four
specialties are irrelevant to establishing and understanding that standard of care.
This time, the defendant doctor admits in the answer and accompanying affidavit
that the plaintiff has asserted the correct standard of care, but asserts that the
challenged actions conformed to it. In this case, MCL 600.2169 applies because
the plaintiff will need to introduce “expert testimony on the appropriate standard
of practice or care” in order to prove that the defendant doctor’s actions did not
conform to it. However, because the defendant doctor has conceded that only one
of the five specialties is germane to the appropriate standard of care, the plaintiff’s
proposed expert only has to comply with the mandates of MCL 600.2169 with
regard to that one specialty.
3. Assume again that the plaintiff sues a doctor who has five specialties,
and again asserts in the complaint and accompanying affidavit that the defendant
doctor should have met the standard of care coinciding with only one of the
defendant doctor’s specialties, and that the defendant doctor’s other four
specialties are irrelevant to establishing and understanding that standard of care.
Assume this time that the defendant doctor, instead of admitting that the plaintiff
has asserted the appropriate standard of care, asserts that the standard of care
coinciding with one of the other specialties is the one the defendant should have
met. In this situation, unless the plaintiff agrees with the defendant, the plaintiff
will need to present expert testimony concerning the standards of care applicable
30
to two of the defendant doctor’s five specialties—the one that the plaintiff asserts
is applicable and the one that the defendant asserts is applicable. No testimony
regarding the standard of care for the defendant doctor’s other three specialties
will be needed because the defendant has conceded that they do not apply.
In this third hypothetical, the plaintiff will need to present two types of
expert testimony: testimony to prove that the standard of care asserted by the
defendant doctor does not apply, and testimony to establish the standard of care
the plaintiff believes is applicable and how the defendant breached it. This, of
course, raises the question whether MCL 600.2169 requires the plaintiff to
produce one expert qualified to offer testimony in both areas. We hold that it does
not; rather, it allows a plaintiff to produce multiple experts, each matching the
defendant doctor’s credentials with regard to one specialty area, in order to fulfill
the burden.54 The reason is that MCL 600.2169(1)(b) requires a plaintiff’s
proposed expert to have devoted a majority of his or her professional time during
the year immediately preceding the alleged malpractice to either the active clinical
practice of, or the teaching of, the specialty about which the expert will testify.
The statute does not impose a similar burden on the defendant doctor. Thus, while
a defendant doctor can offer testimony regarding the appropriate standard of care
54
We further note that this holding necessarily applies also to MCL
600.2912d(1). Thus, a plaintiff can, and in many cases will need to, utilize
multiple experts at the affidavit of merit stage who the plaintiff reasonably
believes collectively match all the defendant doctor’s specialties.
31
for more than one specialty area, it would be impossible under the statute for a
plaintiff to present one expert to likewise testify regarding the appropriate standard
of care for more than one specialty area. It is a fundamental rule of statutory
interpretation that statutes should be given a reasonable construction based on the
legislative intent that can be inferred from their words.55 A construction of MCL
600.2169 that would render compliance impossible would not be reasonable.56
D. RESPONSE TO THE JUSTICE MARKMAN LEAD OPINION SIGNED BY
JUSTICES CAVANAGH, KELLY, AND WEAVER, WHICH WE CONSIDER
A DISSENT
The lead opinion’s interpretation of MCL 600.2169(1), as we understand it,
is that it represents a legislative determination that in all cases only one of the
defendant doctor’s specialties will be relevant to establishing the standard of care
he or she should have met. Therefore, the justices in the lead opinion assert that
55
Rakestraw v Gen Dynamics Land Systems, Inc, 469 Mich 220, 224; 666
NW2d 199 (2003) (“In interpreting a statute, our obligation is to discern the
legislative intent that may reasonably be inferred from the words actually used in
the statute.”); see also Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d 70
(2000).
56
West v Northern Tree Co, 365 Mich 402, 406; 112 NW2d 423 (1961)
(“The law should not be read to require the impossible.”). The rule that a statute
should not be construed as requiring the impossible is commonly referred to as the
doctrine of lex non intendit aliquid impossible, which means that “[t]he law does
not intend anything impossible. For otherwise the law should not be of any
effect.” Black’s Law Dictionary (6th ed). It is based on the presumption that the
Legislature intended for the laws it enacts to be effective, rather than rendered
ineffective by a construction requiring a condition that is physically impossible to
perform. Chew Heong v United States, 112 US 536, 554-555; 5 S Ct 255; 28 L Ed
770 (1884).
32
the statute directs the trial court to determine, at the beginning stages of a lawsuit,
exactly which specialty area the defendant doctor was practicing at the time of the
alleged malpractice and to limit the expert testimony that may be presented to the
jury only to testimony regarding the standard of care commensurate with that
specialty area, or what the lead opinion terms the “relevant” specialty. However,
the lead opinion’s interpretation is not grounded in the statutory language.
Furthermore, its effect is to allow the trial court in the name of culling out the
irrelevant to really exercise a power of theory preclusion with regard to both
plaintiffs and defendants heretofore unknown in our jurisprudence. In doing so, it
will deny in given cases either a plaintiff or a defendant doctor his or her
constitutional right to have a jury determine factual matters, weigh evidence, and
assess credibility. This result will collide with the due process right under our
Constitution of a party to present the theories it has as long as there is sufficient
evidence to support each theory.
The biggest problem with the lead opinion’s interpretation of the statute is
that it misunderstands completely the traditional roles played by the judge and jury
in the trial process. Juries find facts so as to evaluate the theories of the parties.
Judges, among other things, keep out evidence that is irrelevant to the proving of
the theories. If the parties cannot produce evidence sufficient for a reasonable
juror to decide the case on the basis of a certain theory, the jury is precluded by the
judge from considering that theory. This preclusion however cannot come before
proofs are presented or it is shown that there are no such facts by a properly
33
pleaded motion for summary disposition or similar motion. A simple example to
demonstrate this, albeit from another context, may be helpful. Let us assume that
sometime after construction is completed a building collapses. In such a case, if
the owner sues the architect on the theory of malpractice, the architect could
defend by saying he or she was not the cause because he or she was not negligent
but that the real cause was perhaps the negligence of the construction engineers,
defectively manufactured materials, or even that there was an act of God, say, an
earthquake. These alternative explanations, or theories, of how the building
collapsed of course would either be factually supportable or not. If there was
evidence to support them, they would be submitted to the jury for sorting out.
This opportunity to support a party’s theory with evidence cannot be precluded at
the initiation stage of the lawsuit. It only can be done by a motion asserting that
there is no genuine issue of material fact pursuant to MCR 2.116(C)(10), or a
similar type of pretrial motion, or at the close of a party’s proofs at trial where
insufficient facts have been submitted. In no case, however, could the theories be
described, as the lead opinion does, as relevant or irrelevant. The theories only
give alternative views regarding how things happened. The words, relevant or
irrelevant, can only apply to the supporting evidence for the theories. In any case,
to complete the example, under the lead opinion’s thinking, in our hypothetical
case a court could hold that the earthquake theory is irrelevant and preclude
testimony on it immediately after the answer was filed and before there was any
opportunity to even secure or present supporting facts.
34
The problem the hypothetical points out is the problem the lead opinion
will create in medical malpractice cases also. For instance, if a doctor who
specializes in cardiovascular surgery and nephrology57 negligently inserts a
pacemaker, the trial court should not be able to preclude either the plaintiff or the
defendant from arguing that the defendant’s specialty in nephrology was or was
not implicated by the procedure as long as the parties can produce reliable58 expert
testimony to support their theories. If they do, they should be allowed to present
57
Nephrology is a medical specialty involving the kidneys. Merriam
Webster’s Medline Plus, (accessed April 20, 2006).
58
As we outlined at the beginning of the analysis section, the requirements
set fort in MCL 600.2169(1) are only minimum requirements. The reliability
requirements of MCL 600.2955 and MRE 702 must also be considered. Thus, in
order to present expert testimony that a particular specialty area is germane to
establishing the appropriate standard of care, a party not only needs to establish
that its proposed expert meets the credential and experience requirements of MCL
600.2169(1), but also that the expert’s opinion is based on proven theories and
methodologies, i.e., that it is not based on “junk science.” Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 779-783; 685 NW2d 391 (2004); see also
MCL 600.2955; Craig v Oakwood Hosp, 471 Mich 67, 78-80; 684 NW2d 296
(2004). The lead opinion appears to overlook this fact and, thus, seems to think
that under our analysis parties, particularly defendants, will be able to assert that
any specialty is germane to establishing the standard of care.
The lead opinion responds to this by asserting that we are “confusing
relevancy and reliability.” Ante at 18 n 14. That is not the case. What we are
stating is that a party must present reliable expert testimony to prove that a
specialty area is germane to establishing the standard of care. The lead opinion
dismisses this by asking why a party should have to introduce evidence concerning
an irrelevant specialty. We would ask in response how exactly it is that a specialty
area can be dismissed as irrelevant when reliable expert testimony has been
presented that it was implicated by the procedure performed and, thus, is germane
to understanding the standard of care the defendant doctor should have exercised.
35
their theories to the jury for it to make the factual determination of which specialty
or specialties were implicated by the procedure. Yet, under the lead opinion’s
approach, if the trial judge determines after the defendant’s answer is filed that one
party’s theory regarding which specialty explains the standard of care is
“irrelevant,” no proofs are allowed on it. Never, before today, has a theory in this
or any other litigation of which we are aware been itself declared unpresentable
without regard to the evidence to support it. What the lead opinion is doing is not
a relevancy exercise. The only “relevancy” question for the trial court would be
whether the proffered testimony has any tendency to make it more or less probable
that the procedure the defendant doctor performed implicated one or more of his
or her specialty areas. But this is not the decision the lead opinion wants the trial
court to make. The lead opinion wants to let the trial court determine the factual
question whether the procedure performed by the defendant doctor did, in fact,
implicate one or more of the doctor’s specialty areas. This is not a relevance
question, no matter how adamant the lead opinion is in trying to characterize it as
one. Rather, it is an exercise of explanatory theory preclusion.
By allowing such theory preclusion, the lead opinion’s analysis allows in a
medical malpractice case the trial court, rather than the jury, to determine the
factual issue of which specialty or specialties the defendant doctor was practicing
at the time of the alleged malpractice. Ante at 8-9. This plainly disrupts the
historical dynamic of our trial process, whereby factual determinations are to be
made by the jury.
36
The historical division of functions between the court and the jury needs no
citation of authority. It is the province of the jury to determine questions of fact
and assess the credibility of witnesses.59
Not only will the lead opinion’s analysis take factual determinations out of
the province of the jury, it will also foreclose the jury from assessing credibility
and weighing evidence. A good example on the credibility issue can be seen in
Woodard. Defendant Custer has argued throughout the proceedings in this case
that the procedures he performed implicate the specialty of pediatric critical care.
It is the case, however, that plaintiff’s proffered expert, Anthony Casamassima,
M.D., who specializes in general pediatrics, testified in his deposition that he
performed the same procedures on infants the same age as Austin Woodard during
his residency.60 On the basis of this testimony, plaintiffs have asserted that
59
People v Lemmon, 456 Mich 625, 636-637; 576 NW2d 129 (1998); see
also Page v Stanley, 242 Mich 326, 330; 218 NW 673 (1928). That factual
determinations are solely within the province of the jury is not only a matter of
historical happenstance, it is also guaranteed by the Michigan Constitution.
Specifically, Const 1963, art 1, § 14 provides that, when demanded, the defendant
has a right to a jury trial. As we recently explained in Phillips v Mirac, Inc, 470
Mich 415, 426; 685 NW2d 174 (2004), this includes the right to have questions of
fact decided by the jury.
60
The following colloquy took place during Dr. Casamassima’s deposition:
Q. When is the last time you inserted a central venous line in
a patient as old as Austin Woodard?
A. During my residency.
Q. Same question with regard to the arterial line.
(continued…)
37
although such procedures were performed by a critical care specialist in this case,
they do not necessarily implicate the specialty of critical care medicine. Under our
analysis of the statute, if plaintiffs had presented their own critical care specialist
meeting the criteria of MCL 600.2169(1) to support proffered expert
Casamassima’s testimony that these procedures do not implicate the specialty of
critical care, the testimony from all three doctors (Woodard, Casamassima, and
plaintiff’s critical care specialist) would be presented to the jury. The jury, after
hearing this testimony, would evaluate the credibility of each doctor, determine
how much weight should be given each doctor’s testimony, and make a factual
determination regarding the theories so as to determine whether the procedures
performed by defendant Custer do, in fact, implicate the specialty of pediatric
critical care and the standard of care commensurate with it or, rather, merely
implicate the specialty of general pediatrics and its commensurate standard of
care. This is the jury’s traditional function.61 The lead opinion, however, does not
even mention proffered expert Casamassima’s testimony. Instead, it concludes
without discussing it that Custer was “practicing pediatric critical care
(…continued)
A. During my residency.
61
Lemmon, supra; see also Alley v Klotz, 320 Mich 521, 532; 31 NW2d 816
(1948).
38
medicine . . . .” Ante at 26.62 How do they know? To say it was one or the other
specialty is not a determination concerning relevance but a choice of which it was
after considering evidence.63
Even more troubling at a less theoretical plane than the theory-preclusion
role that the lead opinion gives to the trial court is how this will be practically
implemented. There are puzzling questions to which the lead opinion provides no
answers. For example, consider the following difficulties. In the case where there
62
The lead opinion attempts to support its conclusion that these procedures
implicate the specialty of critical care medicine by stating that Custer performed
them in the PICU while the infant patient was critically ill. The fact that a
particular procedure is performed in a PICU on a critically ill patient, however,
does not necessarily mean that that particular procedure implicates the specialty of
critical care medicine. As an example, the mere fact that a critical care specialist
practicing in a PICU inserts an IV into the arm of a critically ill patient does not in
and of itself make the insertion of IVs a procedure implicating the doctor’s
specialty in critical care medicine.
63
The lead opinion claims that it knows Custer was practicing pediatric
critical care medicine “because all of the admissible evidence supports the trial
court’s finding that the defendant physician was practicing pediatric critical care
medicine at the time of the alleged malpractice.” Ante at 26 n 19. That is not the
case because Cassamassima’s testimony was admissible to prove that he, a
specialist in general pediatric care, performed such procedures during his
residency. From this testimony, and the context in which it was elicited, the jury
could reasonably infer that it is relatively common for doctors who practice only
general pediatric care to perform the procedures in this case and that a specialty in
pediatric critical care is not required to understand the standard of care that should
have been followed. The lead opinion, however, simply concludes without
considering this testimony that these procedures require a specialty in pediatric
critical care to perform and then, on the basis of that conclusion, asserts that
Cassamassima’s testimony is not admissible because it was not offered by a
specialist in pediatric critical care.
39
are multiple specialties claimed, the trial court would have to have a hearing very
soon after the defendant’s answer is filed so that the parties can get the decision by
the judge of what the “relevant” specialty is so they can secure experts. Yet, at
that point, there will be no depositions and probably not even reports, at least for
the defendant doctor who just got sued. How is the trial judge to determine which
specialties are “relevant” without expert testimony gained from depositions?64
Moreover, reports, if there are any, are hearsay. How is that dealt with? Further,
once the decision is made by the trial court, how does the loser proceed if that
party, plaintiff or defendant or maybe even both, thinks the trial court got it
wrong? Does he or she make an application for interlocutory leave to appeal in
the Court of Appeals? Even if the Court of Appeals does grant the interlocutory
64
The justices in the lead opinion seem to believe that the trial court will
simply be able to determine at the beginning stages of trial, without expert
testimony, whether a particular procedure implicates a particular specialty. We
find this curious given this Court’s historical recognition that expert testimony is
almost always needed to establish the standard of care in medical malpractice
actions because it is something that is not within the common purview of jurors or
the court. Woodard I, supra, 473 Mich at 6; Bryant v Oakpointe Villa Nursing
Centre, Inc, 471 Mich 411, 422-423; 684 NW2d 864 (2004). The justices in the
lead opinion respond by asserting that expert testimony probably will not be
required in most cases. However, contrary to the lead opinion’s belief, most cases
probably will not be as simple as choosing between cardiovascular surgery and
podiatry because most defendant doctors’ specialties will be closely related. The
lead opinion also accuses us of “ignoring the distinction between determining
which specialty is relevant and determining the appropriate standard of care,” ante
at 19 n 15, and asserts that expert testimony will only be needed to determine the
standard of care, not the specialty or specialty areas implicated by a procedure.
How, exactly, will a trial judge with no medical training determine whether a
particular procedure implicates such interrelated specialties as pediatric critical
care medicine or neonatal-perinatal care medicine, or both.
40
leave to appeal, if the trial court’s decision is affirmed and this Court will not
review the case (which is very likely), does the loser then get to create a separate
record in the trial court regarding his or her theory—the theory that the jury never
heard?65 If he or she is allowed a separate record (and how could he or she not
be?), surely the opposing party will defend even on that separate record with their
own experts. Where is the economy in this approach, which approach was, as
advanced by the lead opinion, to stop the needless expense of having to secure
“irrelevant” experts? Further, when the jury has heard only one theory regarding
the standard of care and specialty at issue and an appeal of its decision is taken, is
the earlier interlocutory holding (if there was one) res judicata? If it is not
binding, or if there was no interlocutory appeal granted, how is the Court of
Appeals, or eventually this Court, to analyze the factual dispute, at that stage or for
that matter interlocutorily, with regard to the vying theories of “relevant
specialties” and, thus, differing standards of care? Appellate courts will have no
basis for a decision on that factual issue or issues. These condundrums all come
65
Strangely, the lead opinion asserts that a separate record will not be
necessary because all the defendant doctor will have to do to preserve the issue is
object on the ground that the plaintiff’s expert does not specialize in the “relevant”
specialty. Ante at 25. The lead opinion misses the point. The issue on appeal will
not be whether the proposed expert specializes in the specialty area the trial court
determined was the “relevant” one. Rather, the issue will be whether the trial
court chose the correct specialty as the “relevant” one. There will be no way for
an appellate court to assess that determination without a record being made
containing expert testimony regarding which specialty areas were implicated by
the procedure the defendant doctor performed, just as there is no way for a trial
court to make the determination in the first instance without such a record.
41
from the fact that the justices in the lead opinion misunderstand what they are
calling on judges to do.
At another level, constitutional rather than merely practical, the lead
opinion’s theory-preclusion approach denies a defendant doctor the right to
procedural due process. This, of course, violates the United States Constitution
and Michigan Constitution, which provide that no person (such as one being sued)
shall be deprived of “life, liberty, or property, without due process of law.”66 Said
simply, this means that the Court must allow the defendant doctor an effective
opportunity to defend the action, which entitles the defendant to confront adverse
witnesses, to call his or her own witnesses, and to present evidence and
arguments.67
But the lead opinion’s theory-preclusion analysis prevents a defendant
doctor from arguing, and introducing evidence to prove, that more than one of his
or her specialty areas is germane to establishing the appropriate standard of care.
It also precludes the doctor from arguing that the plaintiff’s proposed expert does
not know what standard of care the defendant doctor should have followed
because the proposed expert does not possess the same specialties and has not
spent the requisite time practicing or teaching those specialties. Thus, the lead
opinion’s interpretation of the statute allows the trial court to prevent the
66
US Const, Am XIV, §1; Const 1963, art 1, § 17.
67
Bundo v Walled Lake, 395 Mich 679, 696; 238 NW2d 154 (1976).
42
defendant from introducing evidence, making arguments, and cross-examining
witnesses, i.e., presenting a defense.
Further, the lead opinion’s theory-preclusion analysis will also adversely
affect plaintiffs. That is, the justices in the lead opinion appear to believe that it
will always be defendants who assert that multiple specialties are germane to
establishing the appropriate standard of care, perhaps as some sort of gaming
tactic. See Ante at 18. We, however, do not believe that this will always be the
case. For example, if a defendant doctor is a specialist in two areas, a plaintiff
may wish to argue that the combination of the defendant’s specialization in both
areas imposes a higher standard of care on the defendant than the standards of care
applicable to the individual areas. Under our interpretation of the statute, the
plaintiff is allowed to argue to the jury that the higher standard of care applies, as
long as he or she can produce experts who satisfy the criteria of MCL 600.2169(1)
for both areas. Under the lead opinion’s interpretation of the statute, however, the
plaintiff cannot present such an argument to the jury. Rather, the trial court would
determine that only the standard of care applicable to one of the specialty areas is
the “relevant” one, thereby precluding the plaintiff from arguing to the jury that
the higher standard of care applies. Thus, the lead opinion’s interpretation of the
statute will not only deny defendants the right to present a complete defense, but
will also limit the theories that plaintiffs can present to the jury. Do the justices in
the lead opinion believe that this is without possible constitutional implications?
43
All of these problems with the lead opinion’s analysis stem from the fact
that the justices in the lead opinion repeat the same error made by the Court of
Appeals in Tate. That is, they rely on MCL 600.2169(1) to answer the question of
what expert testimony is needed. However, as we explained above, the statute
was never intended to, and indeed does not, address that issue. Nowhere in MCL
600.2169(1) did the Legislature attempt to address whether a plaintiff needs to
produce expert testimony with regard to a particular standard of care. Rather, as
we explained in McDougall, the Legislature’s purpose in enacting MCL 600.2169
was to ensure that if a plaintiff needs to produce expert testimony regarding a
particular standard of care, that expert testimony “‘emanate[s] from sources of
reliable character . . . .’”68
In misinterpreting MCL 600.2169(1) as resolving the question whether
expert testimony is needed with regard to a particular standard of care, the lead
opinion first notes that the statute states that a proffered expert shall not testify
regarding “the appropriate standard of practice or care” unless he or she satisfies
the listed criteria. The lead opinion incorrectly construes this as a legislative
determination that the plaintiff only has to produce expert testimony establishing
the standard of care coinciding with what the lead opinion terms “the relevant”
specialty area, i.e., the standard of care applicable to the specialty area that the
68
McDougall, supra (Taylor, P.J., dissenting) 461 Mich at 36, quoting
McDougall, 218 Mich App at 518.
44
defendant doctor was practicing at the time of the malpractice. We believe the
lead opinion’s construction is erroneous because expert testimony regarding “the
appropriate standard of practice or care” necessarily includes testimony about
whether a particular procedure implicates a certain specialty area and, therefore,
the standard of care applicable to that specialty area.69 In other words, what the
statute clearly says is that a proffered expert cannot testify with regard to what
specialty area the defendant doctor was practicing and the standard of care
commensurate with that specialty unless the proposed expert meets the
requirements of MCL 600.2169(1).
We also disagree with the lead opinion’s reliance on the use of terms such
as “the same specialty,” “that specialty,” “a person,” and “the person” in MCL
600.2169(1)(a) for the proposition that a plaintiff need only present expert
testimony regarding the standard of care applicable to one of the defendant
doctor’s specialty areas. We agree with the lead opinion that these phrases are
written in the singular. But our construction of the statute does not, as the lead
opinion believes, require reading them in the plural. Said simply, the fact that the
69
The word “appropriate,” which can be defined by reference to an
ordinary dictionary because it is a common, rather than technical, term, means
“[s]uitable for a particular person, condition, occasion, or place; proper; fitting.”
The American Heritage Dictionary: Second College Edition (1982). We would
also note that even if the statute used the term “relevant,” as the lead opinion does,
it still would encompass testimony regarding whether a particular procedure
implicates a certain specialty area and, therefore, the standard of care applicable to
that specialty area. This is because the word “relevant” means “[r]elated to the
matter at hand; pertinent.” Id.
45
plaintiff may need to produce multiple experts concerning the applicability or
nonapplicability of multiple standards of care does not change the fact that each
proffered expert is “a person” who must match the defendant doctor’s
qualifications with respect to “that specialty” that he or she is called to testify
about.70
The sum of all of this is that the lead opinion’s interpretation of MCL
600.2169(1) does not follow from its plain language. It also allows the trial court
to perform functions that are solely within the province of the jury, such as making
credibility and factual determinations. Moreover, it effectively denies a defendant
doctor his or her due process right to present a defense, and precludes plaintiffs
from presenting supportable theories. We do not believe that such an
interpretation of the statute is a reasonable one and we believe that it likely is an
unconstitutional approach. Therefore, we cannot join it.
E. ANALYSIS OF THE EFFECT OF JUSTICE MARKMAN’S HAVING
SIGNED BOTH THE LEAD OPINION AND HIS CONCURRENCE
We find Justice Markman’s interpretation of the statute perplexing. He
purports to concur in the lead opinion’s conclusion that MCL 600.2169(1) requires
the trial court to choose one, and only one, specialty that is germane to
establishing the appropriate standard of care and to preclude the parties from
70
Contrary to Justice Markman’s assertion in his concurrence, this explains
why our decision here is not inconsistent with this Court’s holdings in Robinson v
Detroit, 462 Mich 439, 462; 613 NW2d 307 (2000), or Paige v City of Sterling
Hts, __ Mich __; ___ NW2d ___ (Docket No. 127912, decided July 31, 2006).
46
introducing expert testimony regarding other specialties claimed to be relevant.
Inconsistently, he then argues in his concurrence that under MCL 600.2169(2) and
(3) and MRE 702 the trial court may determine that more than one specialty is
relevant and allow the parties to introduce expert testimony with regard those
other relevant specialties.71 These positions are incompatible. Simply stated, the
concurrence does not concur but disagrees. It should be a dissent. Because the
concurrence, which must have been written after the lead opinion and thus is later
in time, has been joined in part by the three justices signing this opinion, we
believe it now becomes a de facto majority opinion.72
71
Furthermore, the lead opinion concludes that because there can only be
one relevant specialty, plaintiffs are only required to produce one expert. But,
Justice Markman agrees with both the lead opinion and this opinion that the
practice and teaching requirements in MCL 600.2169(1)(b) preclude any proffered
expert from being able to testify about more than one specialty area. Thus,
because he states in his concurrence that plaintiffs can be obligated to produce
expert testimony regarding more than one specialty area, it logically follows that
plaintiffs must be able to utilize more than one expert, just as we have concluded
in this opinion. Justice Markman does not concede this in his concurrence, but it
is a necessary conclusion in order for his analysis to work.
72
In his response to this opinion, Justice Markman adamantly asserts that
his concurrence is consistent with the lead opinion. In doing so, he states, “While
the majority opinion holds that under § 2169(1) only the one most relevant
specialty must match, this does not mean that a different provision of law cannot
require that other relevant specialties be matched.” Ante at 6. Justice Markman
apparently does not see the inconsistency in arguing that there can only be one
relevant specialty and, at the same time, arguing that there can be more than one.
He also apparently does not realize that his argument that “different provision[s]
of law” require more than one specialty to match defeats the lead opinion’s
argument that MCL 600.2169(1) mandates that there can be only one “relevant”
specialty and, in the process, renders nugatory every word and clause of MCL
600.2169(1) that the lead opinion relies on for the conclusion that there can be
(continued…)
47
IV. APPLICATION
A. WOODARD v CUSTER
It is undisputed that defendant Custer holds himself out as limiting his
practice primarily to, and having advanced training in, the fields of pediatric
critical care and neonatal-perinatal medicine. He therefore qualifies as a specialist
in both of those areas.73 Further, under the definition we have set forth above,
Custer qualifies as a board-certified specialist in both of these areas. Plaintiffs’
proposed expert, however, only qualifies as a board-certified expert in general
pediatric care.
Throughout the proceedings in this case, Custer asserted that the specialty
areas of pediatric critical care and neonatal-perinatal medicine were germane to
establishing and understanding the standard of care that he should have followed
when treating plaintiffs’ son in the Pediatric Intensive Care Unit. Plaintiffs,
however, failed to present experts qualified to testify that the specialties of
pediatric critical care and neonatal-perinatal medicine were not relevant to
(…continued)
only one “relevant” specialty. Furthermore, Justice Markman fails to explain how
it is reasonable to interpret MCL 600.2169(1) as mandating that there be only one
relevant specialty but, simultaneously, saying that experts proffered to testify
about other specialty areas must meet the requirements of MCL 600.2169(1).
Justice Markman states that our opinion “sows confusion,” Ante at 3 n 1; Ante at 9,
but we believe that it is his position that sows confusion.
73
Although defendant Custer is board-certified in general pediatrics, he
only holds himself out as a specialist in pediatric critical care and neonatal-
perinatal medicine as the director of pediatric critical care medicine for the PICU.
He therefore does not qualify as a specialist in general pediatrics.
48
establishing and understanding the standard of care that Custer should have met.
Rather, their proposed expert was only qualified to testify regarding the standard
of care coinciding with the specialty area they asserted was relevant, general
pediatrics. Accordingly, because plaintiffs needed three expert witnesses and only
presented one, they failed to present sufficient expert testimony to establish the
appropriate standard of care. The trial court thus properly dismissed their lawsuit.
B. HAMILTON v KULIGOWSKI
Defendant Kuligowski holds himself out as limiting his practice primarily
to, and having advanced training in, general internal medicine. He therefore
qualifies as a specialist in that field.74 Further, because it is undisputed that he has
obtained board certification in general internal medicine, he qualifies as a board-
certified specialist in that field.
Although he does not hold himself out as limiting his practice primarily to
that field, plaintiff’s proposed expert holds himself out as having advanced
training or knowledge in general internal medicine. Further, he is board-certified
in that field and therefore qualifies as a board-certified specialist in general
internal medicine. Thus, were he only required to meet the requirements of MCL
600.2169(1)(a), plaintiff’s proposed expert would be qualified to testify regarding
74
Although he testified that he mainly sees geriatric patients, Kuligowski
does not hold himself out as limiting his practice to, or having advanced
knowledge in, the treatment of geriatric patients and, therefore, does not also
qualify as a specialist in geriatric internal medicine.
49
the appropriate standard of care that Kuligowski should have met because
plaintiff’s proposed expert was a board-certified specialist in the same specialty as
Kuligowski at the time of the alleged malpractice.
Plaintiff’s difficulties, however, stem from the fact that her proposed expert
also qualifies as a specialist in the field of infectious diseases, and admittedly
spent a majority of his professional time during the year preceding the alleged
malpractice in the active clinical practice of infectious diseases rather than general
internal medicine. Thus, plaintiff’s proposed expert fails to meet the requirements
of MCL 600.2169(1)(b). Accordingly, the trial court properly granted
Kuligowski’s motion to strike plaintiff’s proposed expert. Further, because the
result was that plaintiff failed to present needed qualified expert testimony to
support her lawsuit, the trial court correctly granted Kuligowski’s motion for a
directed verdict.
V. CONCLUSION
The trial courts in both these cases properly held that plaintiffs’ proposed
experts were not qualified under MCL 600.2169 to testify regarding the
appropriate standard of care that the defendant doctors should have met.
In Woodard, a majority of the Court of Appeals properly affirmed the trial
court’s determination that plaintiffs’ proposed expert was not qualified. Thus,
because plaintiffs failed to present expert testimony sufficient to support their
claims, and because we have already held that the doctrine of res ipsa loquitur
50
does not relieve plaintiffs of this burden,75 we affirm the part of the judgment of
the Court of Appeals that held that plaintiffs’ expert was not qualified and remand
the case to the circuit court for reinstatement of the circuit court’s order dismissing
plaintiffs’ claim with prejudice.
In Hamilton, the Court of Appeals improperly reversed the judgment of the
circuit court and held that plaintiff’s proposed expert was qualified under MCL
600.2169. We therefore reverse the judgment of the Court of Appeals and remand
the case to the circuit court for reinstatement of the circuit court’s order granting a
directed verdict to defendant Kuligowski.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
75
Woodard I, supra, 473 Mich at 9-10.
51