ESTATE OF DENNIS J HALLORAN V RAAKESH C BHAN MD
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
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).
plaintiff’s
proffered
standard-of-care
witness
Here,
did
not
possess the same board certification as defendant doctor,
although
both
had
the
their respective fields.
same
subspecialty
certificate
in
We
hold
proposed
that
expert
MCL
600.2169(1)(a)
witness
must
have
requires
the
that
same
the
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
Plaintiff’s
AND
decedent,
PROCEDURAL POSTURE
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
Halloran’s
physician
renal
caused the death.1
failure
Bhan=s
and
negligent
subsequent
treatment
cardiac
of
arrest
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.
standard-of-care witness.
anesthesiology
(ABA),
and
qualification
by
has
in
the
Thomas
as
her
Gallagher is board certified in
American
received
critical
Gallagher
Board
a
care
of
Anesthesiology
certificate
medicine
of
from
added
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
600.2169(1)(a)
to
because
internal medicine.
satisfy
he
was
the
not
requirements
board
of
certified
MCL
in
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
This
Court
reviews
OF
de
REVIEW
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
requires
must
that
now
an
determine
expert
whether
witness
5
MCL
share
600.2169(1)(a)
the
same
board
certification as the party against whom or on whose behalf
the testimony is offered.
The
Court
of
We hold that it does.5
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.
argument
runs
contrary
to
the
We disagree because this
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, 270271; 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.
statutory
terms
must
be
given
their
plain
Undefined
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.
the
argument
that
As we have invariably stated,
enforcing
the
Legislature’s
plain
language will lead to unwise policy implications is for the
Legislature to review and decide, not this Court.7
7
See
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.
expert
witness
MCL 600.2169(1)(a) requires that the
“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
determining
whether
or
a
mix
of
plaintiff’s
both
is
essential
to
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
proper.”
means,
“right
for
the
purpose;
suitable;
Webster’s New World Dictionary (3d ed).
fit;
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
was
of
whether
defendant
Bhan
practicing
critical care or internal medicine or both at the time of
the alleged malpractice is obvious.
To
help
standard
of
ensure
care
that
will
be
expert
testimony
appropriate
to
regarding
the
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
600.2169(1)(a)
board-certified
provides
that
in
the
that
specialty.
standard-of-care
MCL
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.
board
This conclusion assumes that defendant Bhan’s
certification
in
internal
medicine
sets
the
appropriate standard of care about which plaintiff’s expert
will testify.
The majority’s assumption is premature.
Further,
contrary,
despite
ante
trivializes
at
the
the
6
n
obvious
majority’s
5,
the
claims
majority’s
legislative
intent
to
the
assumption
that
the
plaintiff’s expert be able to testify about an appropriate
standard of care, because, related or not to the underlying
alleged
malpractice
plaintiff’s
expert
certification.
event,
must
the
match
majority
defendant
holds
Bhan’s
that
board
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
specialty
matching
is
required
only
where
the
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 boardcertified
internist,
is
qualified
to
testify
defendant Bhan at trial under MCL 600.2169(1).
Elizabeth A. Weaver
Michael F. Cavanagh
5
against
S T A T E
M I C H I G A N
O F
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
internal medicine.
Rather,
malpractice
the
is
is
uncontested
and
that
it
is
This is incorrect.
"uncontested"
critical
care.
area
of
alleged
Plaintiff
medical
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
MCL
600.2169(1)
sets
TO THE
forth
STATUTE
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
defendant
was
occurred
that
qualification
standard
of
appropriate
is
the
medical
practicing
is
to
when
the
testify
specialty
the
of
regarding
Logically,
standard
must
the
allegedly
expert's
"appropriate
regarding
the
the
defendant's
alleged breach of a specific standard of care.
The statute
comprehends that fact.
to
an
the
testimony
pertain
which
malpractice
touchstone
care."
in
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
malpractice
addressed
neither
nor
relevance
the
certification to that area.
the
area
of
of
the
defendant's
alleged
board
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
experts must match.
area
of
medicine
certifications
possessed
by
the
In contrast, plaintiff argued that the
being
critical care medicine.
practiced
was
the
specialty
of
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
argue
medical
that
malpractice.
the
board
Defendant
certification
chose
of
instead
defendant
to
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
The
pertinent
AND
THE LEGISLATURE'S INTENT
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 boardcertified
in
that
certified in it.
area
because
the
defendant
is
board-
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."
6
"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
training of the expert witness.
professional
(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.
sets
forth
a
standard-of-care
including
subsection
threshold
requirement
witnesses.
But
standard-of-care
2.
There
is
applicable
all
witnesses,
no
Subsection 1
language
expert
are
only
to
witnesses,
subject
indicating
to
that
subsection 1 must be met before subsection 2 is applied to
a
standard-of-care
witness.
The
qualification
expert must be evaluated under subsection 2.
7
of
any
Its criteria
ensure that the testimony of the expert provides assistance
to the trier of fact.
The
statute,
read
as
a
whole,
discretion on the trial judge.
bestows
considerable
Included is the authority
to determine that the area in which the defendant is boardcertified is relevant to the standard of care involved in
the
suit.
statute
is
MCL
600.2169(2).
merely
an
The
additional
first
section
requirement
of
placed
the
on
standard-of-care witnesses.
Subsection
2
does
not
witnesses from its purview.
exclude
It reads:
standard-of-care
"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
standard-of-care witnesses.
is
applicable
to
all
but
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
certification.
outside
the
doctor’s
area
of
board
A construction of the statute that ignores
the area of the alleged malpractice could lead to absurd
results in these cases.
board-certified
as
an
For example, assume a doctor is
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.
OB-GYN
can
legally
practice
as
a
dermatologist
specialized training in dermatology.
An
without
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
expertise would be useless.
moles.
His
specialized
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,
reasonableness
of
the
which
is
defendant
to
determine
doctor's
conduct.
the
The
standard of care the doctor must meet is that of a doctor
practicing
in
the
area
of
9
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.
rather
that
the
expert
possesses
the
same
It is
knowledge
regarding the applicable standard of care in the area of
the
alleged
possess.
malpractice
as
the
defendant
doctor
should
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
physician.
that
must
be
met
by
the
defendant
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
treatment.
influenced
his
decisions
during
the
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
adversely affected by a decision to ignore relevance.
be
The
statutory provisions at issue refer to a defendant "against
whom or on whose behalf" an expert offers testimony.
600.2169(1)(a).
MCL
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,
appropriate witness would be more difficult to find.
an
Once
located, if at all, the witness could be asked to testify
about an irrelevant standard of care.
the
cost
and
difficulty
both
medical malpractice actions.
suit
would
be
adversely
of
This would increase
bringing
and
defending
Plaintiffs with a legitimate
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
testify.
the
in
the
medical
areas
about
which
they
It also intended that courts consider the area of
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
witness statute is undisputed:
writing
the
expert
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
clearly.
basis,
it
could
and
would
have
done
so
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).
13
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
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