Halloran v. Bhan

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.

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).

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.

(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

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).

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.

circuit court for further proceedings consistent with this

opinion.

Maura D. Corrigan
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

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:

“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

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

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

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

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,

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

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

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:

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

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"

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

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

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

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

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.

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

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).

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

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