937 N.W.2d 380
Mich. Ct. App.2019Background
- Plaintiff Kelley Crego sued Dr. Amber McLean (a D.O., board-certified OB-GYN) and others alleging medical malpractice; the complaint included an affidavit of merit (AOM) signed by Dr. McCarus (an M.D., board-certified OB-GYN).
- The trial court dismissed claims against Dr. McLean and the hospital with prejudice, ruling Dr. McCarus was not qualified under MCL 600.2169 to testify against an osteopathic physician because he was licensed differently (part 170 vs part 175 of the Public Health Code).
- The majority of the appellate panel reversed the dismissal (not included here); Judge Letica dissented in part—agreeing the expert did not meet MCL 600.2169(1)(b)(i) but concluding dismissal was improper because counsel reasonably could have believed the expert was qualified when filing the AOM.
- Statutory provision at issue, MCL 600.2169(1)(b)(i), requires that during the year before the occurrence the expert devoted a majority of professional time to "the active clinical practice of the same health profession in which the party ... is licensed and, if the party is a specialist, the active clinical practice of that specialty."
- Central legal question: whether an allopathic physician (M.D.) may be deemed to practice the "same health profession" as an osteopathic physician (D.O.) for purposes of expert qualification under MCL 600.2169 when both are board-certified in the same specialty (OB-GYN).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "same health profession" in MCL 600.2169(1)(b)(i) excludes cross-licensure (M.D. vs D.O.) when both are board-certified in same specialty | Dr. McCarus (M.D.) and Dr. McLean (D.O.) share the same specialty; specialty match suffices and "same health profession" language applies mainly to nonspecialists | The statute requires the expert to practice in the same health profession in which the defendant is licensed; different licensure parts (part 170 vs part 175) mean they are not the same profession | Judge Letica: the expert did not satisfy (b)(i); different licensure indicates different "health profession" and specialist must meet both clauses (profession and specialty) |
| Whether Woodard and precedent make "same health profession" inapplicable to specialists | Woodard and majority reading treat specialty-match as controlling for specialists, making "same health profession" unnecessary | Woodard did not address "same health profession" and should not be read to nullify the licensure requirement; statutory text is conjunctive and must be honored | Judge Letica: Woodard focused on specialty language, not licensure language; "and" is conjunctive so both clauses apply to specialists |
| Whether counsel reasonably believed the AOM-signer was qualified when filing the AOM | Counsel could reasonably rely on board certification, Woodard, Robins, and the limited info available pre-discovery; therefore AOM was proper | Defendants relied on cases emphasizing licensure distinctions (Bates, McElhaney, Brown) to show counsel should have known expert was unqualified | Judge Letica: counsel could have reasonably believed Dr. McCarus met MCL 600.2169 given the ambiguous authority and first-impression nature of the M.D./D.O. question; dismissal with prejudice was improper |
Key Cases Cited
- Grossman v Brown, 470 Mich 593 (Michigan Supreme Court) (AOM must be signed by an expert counsel reasonably believes meets MCL 600.2169)
- Rock v Crocker, 499 Mich 247 (Michigan Supreme Court) (statutory criteria in MCL 600.2169 govern expert testimony on standard of care)
- Woodard v Custer, 476 Mich 545 (Michigan Supreme Court) (addressed specialty-match issues under MCL 600.2169)
- Bates v Gilbert, 479 Mich 451 (Michigan Supreme Court) (counsel could not reasonably believe ophthalmologist was same "health profession" as optometrist)
- McElhaney v Harper-Hutzel Hosp, 269 Mich App 488 (Michigan Court of Appeals) (physician experts not same "health profession" as nurse midwife defendant)
- Brown v Hayes, 270 Mich App 491 (Michigan Court of Appeals) (physical therapist not same "health profession" as occupational therapist under MCL 600.2169)
- Robins v Garg (On Remand), 276 Mich App 351 (Michigan Court of Appeals) (D.O. board-certified in family practice qualified to testify against an M.D. general practitioner under MCL 600.2169(1)(c) in that context)