Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 20, 2004
REBECCA GROSSMAN, as Personal
Representative of the Estate of
FRED GROSSMAN, Deceased,
Plaintiff-Appellee,
v No. 122458
OTTO W. BROWN, M.D., SINAI HOSPITAL,
an assumed name of SINAI HOSPITAL OF
GREATER DETROIT, a Michigan Non-Profit
Corporation,
Defendants-Appellants,
and
ROBERT MURRAY, M.D.,
Defendant.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
At issue here is whether plaintiff’s attorney had a
reasonable belief under MCL 600.2912d(1) that plaintiff’s
medical expert satisfied the expert witness requirements of
MCL 600.2169 in order to sign plaintiff’s affidavit of
merit. We hold that plaintiff’s attorney had such a
reasonable belief. Having reached the same conclusion, the
circuit court decision is affirmed, and this case is
remanded to that court for further proceedings.
I. FACTS
Plaintiff’s husband, Fred Grossman, went to defendant
Sinai Hospital to undergo an elective carotid
endarterectomy (surgical removal of the lining of the
carotid artery).1 The physician who performed the surgery
was defendant Dr. Otto Brown. He is board-certified in the
specialty of general surgery and possesses what is somewhat
ambiguously described as “a certificate of special
qualifications in vascular surgery.” After the surgery,
Mr. Grossman began bleeding internally and had to be rushed
back into surgery. Approximately two days later, Mr.
Grossman died.
In preparation for her lawsuit, plaintiff sent a
notice of intent to file a claim to defendants as required
by MCL 600.2912b(1). The notice of intent alleged that
defendants Dr. Brown and Sinai Hospital, as well as another
doctor who is not a party to this appeal, were negligent by
failing to properly evaluate Mr. Grossman and by failing to
1
This is a type of vascular surgery.
2
provide appropriate postoperative care, the culmination of
which was Mr. Grossman’s death.
In commencing her lawsuit, plaintiff filed an
affidavit of merit with her medical malpractice complaint
as required by MCL 600.2912d(1)2 and MCL 600.2169.3 These
two statutes require the plaintiff’s counsel to file an
affidavit of merit signed by a physician who counsel
2
MCL 600.2912d(1) states the following, in pertinent
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 [MCL
600.2169].
3
MCL 600.2169 states the following, in pertinent part:
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. [MCL
600.2169(1).]
3
reasonably believes specializes in the same specialty as
the defendant physician. If, however, the defendant
physician is a board-certified specialist, the plaintiff’s
counsel must reasonably believe the affidavit-of-merit
expert is board-certified in that specialty.4 Consequently,
plaintiff’s counsel researched defendant Dr. Brown’s
qualifications in order to obtain a qualified expert
witness. Plaintiff’s counsel asserted that he accessed the
American Medical Association’s (AMA) website where he
viewed defendant Brown’s qualifications, saw that he was
board-certified only in general surgery, and confirmed that
there is no vascular surgery board certification. Thus,
according to plaintiff’s counsel’s research, Dr. Brown was
board-certified only in general surgery. That is,
plaintiff’s counsel believed that there was no board
certification for the specialty of vascular surgery.
Accordingly, for the affidavit of merit, plaintiff’s
counsel obtained a physician board-certified in general
surgery who specialized in vascular surgery, Dr. Alex
4
See Halloran v Bhan, 470 Mich ___; ___ NW2d ___
(2004). We ordered Halloran to be argued and submitted
with this case. 468 Mich 868 (2003).
4
Zakharia,5 who reinforced counsel’s belief that there is no
board certification in vascular surgery.
After answers to the complaint had been filed,
defendants Sinai Hospital and Dr. Brown moved for summary
disposition on the basis that plaintiff’s expert was not
qualified to sign the affidavit of merit under MCL
600.2169. Defendants argued that defendant Dr. Brown,
while being board-certified in general surgery, also has a
certificate of special qualifications in vascular surgery,
which they claim is itself another board certification.
Because Dr. Zakharia lacks such a certification, defendant
concluded that Dr. Zakharia is disqualified from signing
the affidavit. Counsel for plaintiff responded that he had
a reasonable belief under MCL 600.2912d(1) that Dr.
Zakharia met the expert witness requirements of MCL
600.2169(1).
The trial court denied defendants’ summary disposition
motion, holding in relevant part that plaintiff’s attorney
had a reasonable belief that Dr. Zakharia met the statutory
prerequisites for an expert witness. The Court of Appeals
denied defendants’ motion for leave for an interlocutory
5
Dr. Zakharia has been practicing in the field of
vascular surgery for many years and has written articles
that have been published in numerous journals and books,
many in the area of cardiovascular and vascular medicine.
5
appeal “for failure to persuade the Court of the need for
immediate appellate review.” We granted defendants leave
for an interlocutory appeal.6
II. STANDARD OF REVIEW
We review de novo questions of statutory
interpretation. Omelenchuk v City of Warren, 466 Mich 524,
527; 647 NW2d 493 (2002). Likewise, we review de novo
decisions on summary disposition motions. American
Federation of State, Co & Municipal Employees v Detroit,
468 Mich 388, 398; 662 NW2d 695 (2003).
III. ANALYSIS
Because the issue in this case is one of statutory
interpretation, the paramount rule is that we must effect
the intent of the Legislature. In re MCI, 460 Mich 396,
411; 596 NW2d 164 (1999). Statutory language is read
according to its ordinary and generally accepted meaning.
If the statute’s language is plain and unambiguous, we
assume the Legislature intended its plain meaning;
therefore, we enforce the statute as written and follow the
plain meaning of the statutory language. Tryc v Michigan
Veterans’ Facility, 451 Mich 129, 135-136; 545 NW2d 642
(1996).
6
468 Mich 869 (2003).
6
Under Michigan’s statutory medical malpractice
procedure, plaintiff must obtain a medical expert at two
different stages of the litigation—at the time the
complaint is filed and at the time of trial. With regard
to the first stage, under MCL 600.2912d(1), 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. With
regard to the second stage, the trial, MCL 600.2169(1)
states that “a person shall not give expert testimony . . .
unless the person” meets enumerated qualifications
(emphasis added). Thus, while at the affidavit-of-merit
stage a plaintiff’s attorney need only “reasonably believe”
the expert is qualified, at trial the standard is more
demanding because the statute states that a witness “shall
not give expert testimony” unless the expert “meets the
[listed] criteria” in MCL 600.2169(1).
The Legislature’s rationale for this disparity is,
without doubt, traceable to the fact that until a civil
action is underway, no discovery is available. See MCR
2.302(A)(1). Thus, the Legislature apparently chose to
recognize that at the first stage, in which the lawsuit is
about to be filed, the plaintiff’s attorney only has
available publicly accessible resources to determine the
7
defendant’s board certifications and specialization. At
this stage, the plaintiff’s attorney need only have a
reasonable belief that the expert satisfies the
requirements of MCL 600.2169. See MCL 600.2912d(1).
However, by the time the plaintiff’s expert witness
testifies at trial, the plaintiff’s attorney has had the
benefit of discovery to better ascertain the qualifications
of the defendant physician, and, thus, the plaintiff’s
attorney’s reasonable belief regarding the requirements of
MCL 600.2169 does not control whether the expert may
testify.
Because this case presents a dispute involving the
affidavit-of-merit stage, the issue before us is whether,
according to MCL 600.2912d(1), plaintiff’s attorney had a
“reasonable belief” that his expert satisfied the
requirements of MCL 600.2169. We hold that given the
information available to plaintiff’s attorney when he was
preparing the affidavit of merit, he had a reasonable
belief that Drs. Brown and Zakharia were both board-
certified in their specialty of general surgery and that
there was no board certification in vascular surgery.
The salient and dispositive facts are that plaintiff’s
attorney consulted the AMA website, which supplied him with
information that defendant Brown was only board-certified
8
in general surgery and that there is no vascular surgery
board certification. Further, counsel consulted Dr.
Zakharia, his expert, who reiterated that there is no
vascular surgery board certification.
Thus, at the moment the affidavit of merit was being
prepared, plaintiff’s attorney used the resources available
to him and reasonably concluded that he had a match
sufficient to meet the requirements for naming an expert.
It may be that what satisfies the standard at this first
stage will not satisfy the requirements of MCL 600.2169 for
expert testimony at trial. This will be decided on remand.
To address this matter now, especially because there has
been no fact-finding on the disputed factual questions,
would be premature.7 It will be for the trial court, in its
role as initial interpreter of the statute and qualifier of
experts, to decide these issues as they become timely.
IV. CONCLUSION
Because plaintiff has complied with the requirements
of the affidavit-of-merit statute, MCL 600.2912d(1), we
7
Thus, we expressly do not decide the additional issue
raised by the concurring justices in this case because it
is not properly before us: whether board certifications
must match in all cases or only those in which the board
certifications are relevant to the alleged malpractice.
9
affirm the circuit court and remand this case to that court
for further proceedings.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
10
S T A T E O F M I C H I G A N
SUPREME COURT
REBECCA GROSSMAN, as Personal
Representative of the Estate of
FRED GROSSMAN, Deceased,
Plaintiff-Appellee,
v No. 122458
OTTO W. BROWN, M.D., SINAI HOSPITAL,
an assumed name of SINAI HOSPITAL OF
GREATER DETROIT, a Michigan Non-Profit
Corporation,
Defendants-Appellants.
and
ROBERT MURRAY, M.D.,
Defendant.
_______________________________
CAVANAGH, J. (concurring in the result only).
I concur with the majority that plaintiff’s counsel
had a reasonable belief that plaintiff’s expert met the
requirements for filing an affidavit of merit under MCL
600.2912d. However, I write separately because I do not
believe that MCL 600.2169 requires an expert witness to
match board certifications in all cases.1 A proper reading
1
I still strongly believe that MCL 600.2169 is
unconstitutional, as discussed in my dissent in McDougall v
Schanz, 461 Mich 15, 37-72; 597 NW2d 148 (1999).
of the statute indicates that board certifications and
specialties must match only when the board certification or
specialty is relevant to the alleged malpractice at issue.
Therefore, I concur with the result reached in this case.
Michael F. Cavanagh
Marilyn Kelly
2
S T A T E O F M I C H I G A N
SUPREME COURT
REBECCA GROSSMAN, as Personal
Representative of the Estate of
FRED GROSSMAN, deceased,
Plaintiff-Appellee,
v No. 122458
OTTO W. BROWN, M.D., SINAI HOSPITAL,
an assumed name of SINAI HOSPITAL OF
GREATER DETROIT, a Michigan non-profit
corporation,
Defendants-Appellants,
and
ROBERT MURRAY, M.D.,
Defendant.
_______________________________
WEAVER, J. (concurring in result only).
I concur with the majority only in its conclusion
that, in this case, plaintiff’s attorney had a reasonable
belief that plaintiff’s medical expert met the requirements
for filing an affidavit of merit under MCL 600.2912d. I
write separately to clarify, as I explain in my dissenting
opinion in Halloran v Bhan, Mich ; NW2d (2004)
(WEAVER, J. dissenting), that MCL 600.2169 requires that a
standard-of-care expert’s board certifications and
specialties match those of the defendant only where the
specialty or board certification is appropriate for
(correct for the purpose of explaining) the standard of
care to which the expert will be testifying in the case.
Elizabeth A. Weaver
2