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
FILE JULY 20, 2004
EILEEN HALLORAN, temporary
personal representative of the
estate of DENNIS J. HALLORAN,
DECEASED,
Plaintiff-Appellee,
v No. 121523
RAAKESH C. BHAN, M.D., and
CRITICAL CARE PULMONARY
MEDICINE, P.C.,
Defendants-Appellants,
and
BATTLE CREEK HEALTH SYSTEMS,
Defendant.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, C.J.
In this interlocutory appeal, we must determine the
meaning of the medical malpractice expert witness
qualification requirements of MCL 600.2169(1)(a). Here,
plaintiff’s proffered standard-of-care witness did not
possess the same board certification as defendant doctor,
although both had the same subspecialty certificate in
their respective fields.
We hold that 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. Because plaintiff’s expert
witness did not share the same board certification as the
defendant doctor, we reverse the decision of the Court of
Appeals that held to the contrary and reinstate the circuit
court’s order granting defendants’ motion to strike.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
Plaintiff’s decedent, Dennis Halloran, was
experiencing renal failure and died of cardiac arrest after
being treated by defendant physician Raakesh Bhan in the
emergency room at defendant Battle Creek Health Systems.
Plaintiff brought a medical malpractice action, alleging
that defendant physician Bhan=s negligent treatment of
Halloran’s renal failure and subsequent cardiac arrest
caused the death.1 Bhan is board-certified in internal
medicine by the American Board of Internal Medicine (ABIM)
and also received a certificate of added qualification in
1
Thus, this is not a case in which the administration
of anesthetic is at issue.
2
critical care medicine2 from the ABIM. The parties do not
dispute that the subspecialty certification is not a “board
certification” for the purpose of the statute. It is not
disputed that Bhan was practicing critical care at the time
of the event in question.
Plaintiff proposed Dr. Thomas Gallagher as her
standard-of-care witness. Gallagher is board certified in
anesthesiology by the American Board of Anesthesiology
(ABA), and has received a certificate of added
qualification in critical care medicine from the ABA.
Gallagher is not board certified in internal medicine and
has not received any training that would make him eligible
for certification in internal medicine.
Defendants moved to strike Dr. Gallagher on the ground
that he failed to satisfy the requirements of MCL
600.2169(1)(a) because he was not board certified in
internal medicine. The circuit court granted the motion to
strike, finding that Gallagher was not qualified to testify
2
“Critical care medicine” is defined as “[t]he medical
knowledge that is applied to the care of patients in
critical care units.” Attorneys’ Dictionary of Medicine,
Vol 2 (2002).
3
as an expert witness regarding the standard of care because
he and Dr. Bhan did not share the same board certification.
A split Court of Appeals reversed and remanded,
holding that because the subspecialty of critical care was
shared by both physicians, plaintiff’s trial expert fell
within the requirements of the statute.3 This Court granted
leave to appeal on March 25, 2003, limited to the issue
regarding the proper interpretation of MCL 600.2169(1)(a).4
II. STANDARD OF REVIEW
This Court reviews de novo issues of statutory
interpretation. In re MCI, 460 Mich 396, 413; 596 NW2d 164
(1999).
III. ANALYSIS
When facing issues regarding statutory interpretation,
this Court must discern and give effect to the Legislature=s
intent as expressed in the statutory language. DiBenedetto
v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000);
Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d 70
3
Unpublished opinion per curiam, issued March 8, 2002
(Docket No. 224548).
4
468 Mich 868 (2003). We further ordered Grossman v
Brown, 468 Mich 869 (2003), to be argued and submitted with
this case.
4
(2000). This principle was recently explained in Roberts v
Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2000):
An anchoring rule of jurisprudence, and the
foremost rule of statutory construction, is that
courts are to effect the intent of the
Legislature. People v Wager, 460 Mich 118, 123,
n 7; 594 NW2d 487 (1999). To do so, we begin
with an examination of the language of the
statute. Wickens v Oakwood Healthcare System, 465
Mich 53, 60; 631 NW2d 686 (2001). If the
statute's language is clear and unambiguous, then
we assume that the Legislature intended its plain
meaning and the statute is enforced as written.
People v Stone, 463 Mich 558, 562; 621 NW2d 702
(2001). A necessary corollary of these
principles is that a court may read nothing into
an unambiguous statute that is not within the
manifest intent of the Legislature as derived
from the words of the statute itself. Omne
Financial, Inc v Shacks, Inc, 460 Mich 305, 311;
596 NW2d 591 (1999).
MCL 600.2169(1) provides:
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.
We must now determine whether MCL 600.2169(1)(a)
requires that an expert witness share the same board
5
certification as the party against whom or on whose behalf
the testimony is offered. We hold that it does.5
The Court of Appeals majority held that it is
sufficient under the statute if the expert witness and the
defendant doctor share only the same subspecialty, but not
the same board certification. We disagree because this
argument runs contrary to the plain language of the
statute.6
5
Contrary to the dissent’s contention, we are not
concluding that board certificates that are not relevant to
the alleged malpractice have to match. There is simply no
need to address that issue in this case because it is
uncontested that the defendant physician was practicing
internal medicine, not anesthesiology, when he allegedly
committed malpractice. Thus, the defendant physician’s
internal medicine board certification is a “relevant” board
certificate.
6
The dissent argues that this straightforward
application of the plain language of MCL 600.2169(1)
renders MCL 600.2169(2) meaningless. MCL 600.2169(2),
however, deals with any expert witness, while MCL
600.2169(1) deals only with expert witnesses regarding the
standard of care. Expert testimony may encompass many
subjects that do not involve the standard of care, such as
causation. For an expert witness to be qualified to
testify regarding the standard of care, however, the court
must apply the requirements of MCL 600.2169(1). It would
be impermissible for the trial court, when dealing with a
proposed standard-of-care witness, to avoid the specific
provisions of § 2169(1) and only apply the requirements of
§ 2169(2). See Jones v Enertel, Inc, 467 Mich 266, 270-
271; 650 NW2d 334 (2002) (where a statute contains a
general provision and a specific provision, the specific
provision controls). Rather, when dealing with a proposed
standard of care witness, the general provisions of §
2169(2) must be considered after a standard-of-care witness
is qualified under the specific provisions of § 2169(1).
6
This interpretation is supported by the use of the
word “however” to begin the second sentence. Undefined
statutory terms must be given their plain and ordinary
meanings, and it is proper to consult a dictionary for
definitions. Donajkowski v Alpena Power Co, 460 Mich 243,
248-249; 596 NW2d 574 (1999); Koontz v Ameritech Services,
Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Random House
Webster’s College Dictionary (2d ed) defines “however” as
“in spite of that” and “on the other hand.” Applying this
definition to the statutory language compels the conclusion
that the second sentence imposes an additional requirement
for expert witness testimony, not an optional one. In
other words, “in spite of” the specialty requirement in the
first sentence, the witness must also share the same board
certification as the party against whom or on whose behalf
the testimony is offered.
There is no exception to the requirements of the
statute and neither the Court of Appeals nor this Court has
any authority to impose one. As we have invariably stated,
the argument that enforcing the Legislature’s plain
language will lead to unwise policy implications is for the
Legislature to review and decide, not this Court.7 See
7
Even if we were constitutionally empowered to
consider our own public policy preferences in construing
(continued…)
7
Jones v Dep’t of Corrections, 468 Mich 646, 655; 664 NW2d
717 (2003).
It is not disputed that defendant Bhan is board
certified in internal medicine, but proposed expert witness
Gallagher is not. MCL 600.2169(1)(a) requires that the
expert witness “must be” a specialist who is board
certified in the specialty in which the defendant physician
is also board certified. Because the proposed witness in
this case is not board certified in the same specialty as
Bhan, MCL 600.2169(1)(a) prohibits him from testifying
regarding the standard of care.
IV. CONCLUSION
Therefore, we reverse the decision of the Court of
Appeals and reinstate the circuit court’s order granting
defendant’s motion to strike. We remand this case to the
(continued…)
legislative mandates such as MCL 600.2169, the dissent’s
contention that our reading of § 2169 leads to undesirable
results is wholly unpersuasive. Consider the facts of this
case: there may be an enormous difference between critical
care as practiced by an internist and critical care as
practiced by an anesthesiologist. Indeed, one would expect
that a patient requiring a medical diagnosis during
critical care would rather be treated by an internist than
an anesthesiologist. Likewise, one would expect that a
patient being anesthetized during critical care would
rather be treated by an individual trained in
anesthesiology than one trained in internal medicine.
Thus, the practice of critical care may be quite different
depending on the physician’s underlying specialization.
8
circuit court for further proceedings consistent with this
opinion.
Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
9
S T A T E O F M I C H I G A N
SUPREME COURT
EILEEN HALLORAN, temporary
personal representative of the
estate of DENNIS J. HALLORAN,
DECEASED,
Plaintiff-Appellee,
v No. 121523
RAAKESH C. BHAN, M.D., and
CRITICAL CARE PULMONARY
MEDICINE, P.C.,
Defendants-Appellants,
and
BATTLE CREEK HEALTH SYSTEMS,
Defendant.
_______________________________
WEAVER, J. (dissenting).
I dissent from the majority’s premature conclusion
that plaintiff’s standard-of-care expert is not qualified
to testify under MCL 600.2169(1) regarding the appropriate
standard of care in this case. Both plaintiff’s expert and
defendant Bhan specialized in critical care medicine. The
majority holds, however, that plaintiff’s expert must be,
like defendant Bhan, board-certified in internal medicine
because the majority states that Bhan was practicing
internal medicine at the time of the alleged malpractice.
Ante at 6 n 5.
The nature of the alleged malpractice cannot be
confirmed with such certainty from the record, because the
trial court never ruled on whether internal medicine was
involved. It is not clear that defendant Bhan was
practicing internal medicine or critical care at the time
of the alleged malpractice. Apparently, even the majority
is unable to determine with certainty the nature of the
malpractice at issue, because the majority asserts that it
is undisputed that defendant was practicing not only
internal medicine at the time of the event in question, but
also critical care medicine. Ante at 6 n 5 and 3.
Whether defendant Bhan was practicing critical care or
internal medicine or a mix of both is essential to
determining whether plaintiff’s expert is qualified to
testify regarding the appropriate standard of care under
MCL 600.2169(1). MCL 600.2169(1)(emphasis added) states
that:
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 . . . .
“Appropriate,” used as an adjective in the context of the
statute means, “right for the purpose; suitable; fit;
proper.” Webster’s New World Dictionary (3d ed). On the
basis of an ordinary understanding of the language of the
2
statute, the Legislature’s intent is that a standard of
care expert must be able to testify regarding a fitting,
suitable, and proper standard of care. From this, the
significance of whether defendant Bhan was practicing
critical care or internal medicine or both at the time of
the alleged malpractice is obvious.
To help ensure that expert testimony regarding the
standard of care will be appropriate to the underlying
alleged malpractice event, MCL 600.2169(1)(a) requires that
the expert must be a specialist in the same specialty as
the defendant doctor. Further, if the defendant doctor is
a board-certified specialist, the statute requires that the
expert must be board-certified in that specialty. MCL
600.2169(1)(a) provides that the standard-of-care expert
must meet the following criteria:
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.
The majority concludes that plaintiff’s expert witness is
not qualified to testify under this subsection of MCL
600.2169(1) because he is not board-certified in internal
3
medicine. This conclusion assumes that defendant Bhan’s
board certification in internal medicine sets the
appropriate standard of care about which plaintiff’s expert
will testify. The majority’s assumption is premature.
Further, despite the majority’s claims to the
contrary, ante at 6 n 5, the majority’s assumption
trivializes the obvious legislative intent that the
plaintiff’s expert be able to testify about an appropriate
standard of care, because, related or not to the underlying
alleged malpractice event, the majority holds that
plaintiff’s expert must match defendant Bhan’s board
certification. The real scope of the majority’s holding is
revealed in its insistence that it must parse the meaning
of the conjunction “however” and conclude that there is “no
exception” to the MCL 600.1269(1)(a) requirements that
specialties and board certifications match. I would hold
that matching is required only where the specialty or
board-certified specialty is appropriate for (right for the
purpose of explaining) the standard of care about which the
expert will be testifying in the case.
For these reasons, I would remand this matter to the
circuit court for it to consider whether the nature of the
underlying malpractice involved critical care medicine or
internal medicine or both. This will allow the court to
4
determine whether plaintiff’s standard-of-care expert, who
specialized in critical care, but who was not a board-
certified internist, is qualified to testify against
defendant Bhan at trial under MCL 600.2169(1).
Elizabeth A. Weaver
Michael F. Cavanagh
5
S T A T E O F M I C H I G A N
SUPREME COURT
EILEEN HALLORAN, temporary
personal representative of the
estate of DENNIS J. HALLORAN,
DECEASED,
Plaintiff-Appellee,
v No. 121523
RAAKESH C. BHAN, M.D. and
CRITICAL CARE PULMONARY
MEDICINE, P.C.,
Defendants-Appellants,
and
BATTLE CREEK HEALTH SYSTEMS,
Defendant.
_______________________________
KELLY, J. (dissenting).
I disagree with the majority's conclusion that the
plaintiff's expert was not qualified to testify that the
defendant doctor breached the standard of care. The
majority's decision hinges on its assertion that the area
of medical malpractice is uncontested and that it is
internal medicine. This is incorrect.
Rather, the "uncontested" area of alleged medical
malpractice is critical care. Plaintiff argued that
critical care medicine was the relevant area of inquiry.
Defendant never disputed it. And the trial court never
made a determination on the issue.
In misconstruing the record, the majority has made an
improper factual determination. Once it is exposed, it
becomes obvious that the outcome of the majority's decision
is fatally flawed. The Court of Appeals decision should be
affirmed and plaintiff's expert witness should be allowed
to testify.
A PRINCIPLED APPROACH TO THE STATUTE
MCL 600.2169(1) sets forth the requirements for
experts who testify regarding the appropriate standard of
care in medical malpractice cases. If the defendant doctor
is a specialist, an expert witness must practice in the
same specialty as the defendant. If the defendant is
board-certified, the expert must be board-certified in the
same specialty.
However, it is the medical specialty in which the
defendant was practicing when the malpractice allegedly
occurred that is the touchstone of an expert's
qualification to testify regarding the "appropriate
standard of care." Logically, testimony regarding the
appropriate standard must pertain to the defendant's
alleged breach of a specific standard of care. The statute
comprehends that fact. MCL 600.2169(2)(d) requires that,
2
when "determining the qualifications of an expert witness
in an action alleging medical malpractice," the court
"shall . . . evaluate . . . [t]he relevancy of the expert
witness's testimony."
In this case, the defendant doctor was board-certified
in internal medicine. Although it is undisputed that the
relevant standard of care involved critical care, it is not
clear whether defendant's board certification in internal
medicine was relevant to the malpractice claim. If it
were, in order to testify under the requirements of MCL
600.2169, the standard-of-care witness would have to be a
board-certified internist.
At the hearing on defendant's motion to strike, the
trial court addressed neither the area of the alleged
malpractice nor the relevance of defendant's board
certification to that area. The court merely ascertained
what paper credentials each doctor held and whether their
board certifications matched. Left unresolved was whether
the area of alleged malpractice must be identified before
the application of MCL 600.2169.
At the hearing on the motion, defendants did not argue
that internal medicine was being practiced when the alleged
malpractice occurred. Having no interest in discussing the
area of the alleged malpractice, defendants focused solely
3
on whether the board certifications possessed by the
experts must match. In contrast, plaintiff argued that the
area of medicine being practiced was the specialty of
critical care medicine. Accordingly, plaintiff argued that
one must consider the qualifications of the expert with
regard to critical care medicine, not internal medicine.
Hence, the majority correctly notes that the issue of
relevancy was uncontested. Plaintiff asserted that critical
care was the relevant medical area. Defendant did not
dispute that claim. Only plaintiff alleged the appropriate
area of medical malpractice. Defendant chose instead to
argue that the board certification of defendant and
plaintiff's expert must match. Thus, defendant failed to
dispute plaintiff's contention that the area of critical
care medicine was the proper focus.
Plaintiff's expert planned to testify as a critical
care doctor commenting on the care and treatment provided
by another critical care doctor. He was prepared to testify
that the defendant doctor breached several standards of
care in critical care medicine.
A conclusion that the nature of the underlying
malpractice claim has no bearing on an expert witness's
qualification to testify would defy the statute and its
purpose. An assumption that an expert witness must hold
4
the same board certification as that held by the defendant,
even when it bears no relevance to the malpractice alleged,
would be fallacious.
THE STATUTE AND THE LEGISLATURE'S INTENT
The pertinent statutory language is located in MCL
600.2169, which provides in 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.
The Legislature's true intent in writing it is revealed
only when one reads § 2169 in its entirety.
In setting forth the requirements that an expert
witness must meet before qualifying to testify regarding
the standard of care in a medical malpractice case, the
statute begins: "[A] person shall not give expert
testimony on the appropriate standard of practice or care
unless . . . ." MCL 600.2169 (emphasis added). Since the
expert must give testimony about the appropriate standard
5
of care, it follows that the expert's certification must be
in the area of the alleged malpractice. Any other board
certification would be irrelevant.
The second sentence of MCL 600.2169(1)(a) begins with
the adverb “[h]owever,” indicating that the meaning of the
language that follows “[h]owever” contrasts with that which
precedes it. The word "however" is less likely to suggest
an additional requirement, as the majority concludes, than
to suggest a different requirement in an alternative set of
circumstances.
Applied to this case, if the alleged malpractice were
in internal medicine, the expert would have to be board-
certified in that area because the defendant is board-
certified in it. Alternatively, if the alleged malpractice
involved a medical specialty in which defendant was not
board-certified, the first sentence of the statute would
control. If defendant specialized in that area, the expert
witness would have to specialize in that area as well.
Furthermore, MCL 600.2169(1)(b)(i) requires that an
expert have devoted, in the year preceding the date of the
alleged injury, a majority of his or her professional time
to: "The active clinical practice of the same health
profession . . . and, if that party is a specialist, the
active clinical practice of that specialty." "Specialty"
6
in this provision refers to a specific area of medical
practice. This supports the conclusion that the necessary
and relevant qualifications of an expert who will testify
regarding the appropriate standard of care are determined
by the area of the alleged malpractice.
Moreover, the statute continues:
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. [MCL 600.2169(2).]
Subsections 1 and 2 do not stand alone. Subsection 1
sets forth a threshold requirement applicable only to
standard-of-care witnesses. But all expert witnesses,
including standard-of-care witnesses, are subject to
subsection 2. There is no language indicating that
subsection 1 must be met before subsection 2 is applied to
a standard-of-care witness. The qualification of any
expert must be evaluated under subsection 2. Its criteria
7
ensure that the testimony of the expert provides assistance
to the trier of fact.
The statute, read as a whole, bestows considerable
discretion on the trial judge. Included is the authority
to determine that the area in which the defendant is board-
certified is relevant to the standard of care involved in
the suit. MCL 600.2169(2). The first section of the
statute is merely an additional requirement placed on
standard-of-care witnesses.
Subsection 2 does not exclude standard-of-care
witnesses from its purview. It reads: "In determining the
qualifications of an expert witness in an action alleging
medical malpractice . . . ." There is no language in this
section to suggest that it is applicable to all but
standard-of-care witnesses. Rather, the requirements apply
to "an expert witness."
AVOIDING AN ABSURD RESULT
It is likely that cases will arise in which a doctor
chooses to practice outside the doctor’s area of board
certification. A construction of the statute that ignores
the area of the alleged malpractice could lead to absurd
results in these cases. For example, assume a doctor is
board-certified as an obstetrician-gynecologist (OB-GYN),
but practices some dermatology, an area in which he is not
8
board-certified. Assume he is sued for negligently removing
a mole from the shoulder of a patient. An interpretation
that ignores relevance would require the patient to find an
expert who is a board-certified OB-GYN practicing some of
the time in dermatology to testify about the standard of
care.
A doctor is not required by law to be board-certified
in order to practice in a particular area of medicine. An
OB-GYN can legally practice as a dermatologist without
specialized training in dermatology. Even if an expert
witness could be found to testify in the hypothetical case,
he would have to testify that no special standard of care
exists for an OB-GYN removing moles. His specialized
expertise would be useless. A general practitioner, with
no board certification, could testify as accurately about
the applicable standard of care in the hypothetical case.
If the statute were read to account for relevance, he would
be allowed to do so.
A blind adherence to matching paper credentials would
demonstrate a misunderstanding of the nature of an expert
witness's testimony, which is to determine the
reasonableness of the defendant doctor's conduct. The
standard of care the doctor must meet is that of a doctor
practicing in the area of medicine involved in the
9
malpractice claim. "[T]he patient normally understands and
expects that physicians, acting within the ambit of their
professional work, will exercise the skill, knowledge, and
care, normally possessed and exercised by other members of
their profession, of the same school of practice in the
relevant medical community." 1 Dobbs, Torts, § 242, pp
631-632.
What is important is not the defendant physician's
paper credentials, to the exclusion of all else. It is
rather that the expert possesses the same knowledge
regarding the applicable standard of care in the area of
the alleged malpractice as the defendant doctor should
possess. The Legislature recognized that a board-certified
doctor may be held to a different standard of care than a
doctor who is not board-certified. This is not relevant,
however, if the area in which the doctor is board-certified
is not related to the malpractice claim.
If the alleged malpractice involves a specialty area,
such as dermatology, it is the standard of care applicable
to a dermatologist that must be met by the defendant
physician. It is not the standard of care of the defendant
physician who happens to be a board-certified OB-GYN as
10
well as a dermatologist. See MCL 600.2912a(1)(b).1 The
defendant physician could certainly claim that his separate
OB-GYN training influenced his decisions during the
treatment. However, it is for the jury to decide whether
the defendant breached the standard of care to which he is
held, that of a dermatologist. There is no special
standard of care for a board-certified OB-GYN practicing in
dermatology.2
Future defendants, as well as plaintiffs, would be
adversely affected by a decision to ignore relevance. The
statutory provisions at issue refer to a defendant "against
whom or on whose behalf" an expert offers testimony. MCL
600.2169(1)(a). Future defendants practicing outside their
area of board certification would be required to find a
similarly board-certified standard-of-care expert who is
doing the same.
1
MCL 600.2912a(1)(b) states that a plaintiff must
prove that "[t]he defendant, if a specialist, failed to
provide the recognized standard of practice or care within
that specialty . . . ."
2
I note that, just as the statute does not explicitly
use the word "relevant," it also does not explicitly limit
the board certification requirement to the medical field.
If the courts were to ignore relevance, a medical doctor
who was certified by the State Board of Law Examiners as an
attorney must bring forth an expert who is also certified
by that board. The same applies to one certified by the
State Board of Education as a teacher, and others.
11
Like a plaintiff's standard-of-care expert, an
appropriate witness would be more difficult to find. Once
located, if at all, the witness could be asked to testify
about an irrelevant standard of care. This would increase
the cost and difficulty both of bringing and defending
medical malpractice actions. Plaintiffs with a legitimate
suit would be adversely affected, and the costs and
complexity of defense for doctors and hospitals sued for
malpractice would be increased.
Surely, the Legislature did not intend the statute to
be read to reach this counterproductive result. What it
did intend is that experts in medical malpractice cases be
knowledgeable in the medical areas about which they
testify. It also intended that courts consider the area of
the alleged malpractice in applying the statute and
assessing what board certification experts must possess.
The statute's legislative history confirms this belief.
For example, the Report of the Senate Select Committee
on Civil Justice Reform stated that the proposed statute
was intended "to make sure that experts will have firsthand
practical expertise in the subject matter about which they
12
are testifying."3 Judge Taylor, now Justice Taylor, cited
that language in Schanz. The opinion noted:
While MRE 702 authorizes expert testimony on
the basis of "knowledge, skill, experience,
training, or education," the statute operates to
preclude certain witnesses from testifying solely
on the basis of the witness' lack of practice or
teaching experience in the relevant specialty.
[Report at 24-25 (emphasis added).]
The Legislature’s purpose in writing the expert
witness statute is undisputed: it is to ensure that an
expert is familiar with the standard of care at the level
and in the area in which the malpractice is alleged to have
occurred. Creating a rule that requires board
certifications to match regardless of whether that area is
the subject of the malpractice would not be in keeping with
this intent. If the Legislature meant to illogically
restrict some medical malpractice causes of action on such
an arbitrary basis, it could and would have done so
clearly. Because it did not, a contrary interpretation
would fly in the face of the intent underlying the statute
and, moreover, would produce an absurd result.
3
McDougall v Schanz, 461 Mich 15, 25 n 9; 597 NW2d 148
(1999), quoting McDougall v Eliuk, 218 Mich App 501, 509 n
2; 554 NW2d 56 (1996) (Taylor, J., dissenting)(emphasis
added).
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CONCLUSION
At issue in this case is the interpretation of MCL
600.2169(1)(a). I would hold that where a defendant
specializes in the area of the alleged malpractice, but is
not board-certified in that area, the first sentence of MCL
600.2169(1)(a) controls.
Where a defendant is board-certified in the area of
the alleged malpractice, the second sentence of MCL
600.2169(1)(a) requires that an expert be board-certified
in the same specialty. The statute does not require that a
board certification unrelated to the occurrence that is the
basis for the action be considered.
In this case, the defendant doctor was board-certified
in internal medicine. However, it is not disputed that the
relevant standard of care involved critical care medicine.
Thus, given the arguments at the hearing on defendant's
motion to strike, I would affirm the decision of the Court
of Appeals to reverse the trial court's decision to strike
plaintiff's expert.
Marilyn Kelly
14