0 d Michigan Supreme Court
r Lansing, Michigan
july 12a 2005 Clifford W. Taylor
Chief Justice
124994_5 & (5 3) Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
JOHANNA WOODARD, individually and as stephen J. Markman
Next Friend of AUSTIN D. WOODARD, J“Sfi€@$
a Minor, and STEVEN WGODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v SC: 124994
CC)A: 239868
Washtenaw CC: 99-()O5364-NH
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. WO()DARD,
a Minor, and STEVEN WOODARD,
Plaintiffs-Appellees
and Cross-Appellants,
v SC: 124995
COA: 239869
Court of Claims: 99-Ol7432-CM
UNIVERSITY OF MICHIGAN MEDICAL
CENTER,
Defendant-Appellant
and Cross-Appellee.
/
On December 9, 2004, the Court heard oral argument on defendants’ application
for leave to appeal the October Zl, 2003 judgment of the Court of Appeals and plaintiffs’
cross-application for leave to appeal. Plaintiffs’ cross-application for leave to appeal is
again considered, and it is GRANTED. The parties are directed to include among the
issues to be briefed: (l) what are the appropriate definitions of the terms "specialty" and
"board certified" as used in MCL 600.2l69(l)(a); (2) whether either "specialty" or
"board certified" includes subspecialties or certificates of special qualifications;
(3) whether MCL 600.2l69(l)(b) requires an expert witness to practice or teach the same
subspecialty as the defendant; (4) whether l\/lCL 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 (20()2); and (5) what are the relevant specialties, subspecialties, and certificates
of special qualifications in this case.
The American Osteopathic Association’s Bureau of ()steopathic Specialists, the
Accreditation Council for Graduate Medical Education, and the Council of Medical
Specialty Societies are invited to file briefs amicus curiae. Other persons or groups
interested in the determination of the issues presented in this case may move the Court
for permission to file briefs amicus curiae.
WEAVER, J., concurs and states as follows:
l concur in the Court’s decision to grant leave to appeal on plaintiffs’ cross-
application for leave to appeal. However, l would not have decided defendant’s
application for leave to appeal separately and peremptorily, see 473 Mich _____ (2005). l
would have granted the defendant’s application for leave to appeal to decide both
applications at the same time.
l write separately to note that whether "specialty" or "board certified” in l\/lCL
600.2l69(l)(a) refers to subspecialties or certificates of special qualification is
debatable.l lt is possible that "board certitied" refers only to the twenty-four board
l Regarding subspecialties versus specialties, the policy statement of the American Board
of Medical Specialties (ABMS) provides:
[T]he established specialty boards as well as the American Board of
l\/Iedical Specialties itself increasingly are facing concerted pressures to
offer certification in additional specialty or subspecialty categories This is
occurring despite the fact that accredited educational programs and the
evaluative examinations on which general certifications are based assign
appropriate emphasis to each of the subspecialties or areas of special
competence identified with the corresponding primary field. Accordingly,
diplomates holding general certification normally acquire, to a greater or
(continued. . .)
specialties recognized by the American Board of Medical Specialties (ABl\/IS) and the
eighteen board specialties recognized by the American Osteopathic Association (AOA).z
But it has also been suggested that "board certified" refers to the more than one hundred
subspecialties recognized and certified by the ABMS and the AOA.3 The ABMS website
further acknowledges that there are over 180 non-ABMS, "self-designated" medical
"boards" in the United States, and the statute itself provides no language excluding any
medical board from relevance.‘l
How this Court interprets "specialty" and "board certified" in subpart l(a) of MCL
600.2169 significantly affects the ability of a party to a medical malpractice action to find
an expert qualified to testify.
This case and another case in which leave to appeal was granted today, Hamz'lton v
Kulz`gowski, 473 Mich ____ (2()05), present opportunities to provide guidance on recurring
and difficult questions regarding the qualifications of expert witnesses under MCL
600.2l69. l therefore concur in the decision to grant leave to appeal on plaintiffs’ cross~
application for leave to appeal.
dO705
(. . .continued)
lesser degree, all of such special competencies in their educational and
specialty practice experience. (accessed
April 13, 2005).
2 'l`he ABMS is the primary standard-setting organization for medical doctors and the
AOA sets standards for osteopathic physicians. See
(accessed
April 13, 20()5).
3 lt is noteworthy that a medical doctor or a doctor of osteopathic medicine can practice
without any specialty or subspecialty. Further, both certifications in specialties and
subspecialties by the ABMS and the AOA require additional training, testing, and
periodic renewal. (accessed April 13, 2005).
4 vx>v.abnis.org/faq.asp> (accessed April 13, 2005).
I, CORBlN R. DAVIS, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
9% / Z, , 200 fig g
ler