Brown v. HayesBrown v. Hayes
Lead Opinion
In this medical malpractice action, defendants
FACTS AND PROCEEDINGS BELOW
This case arises from work-hardening therapy plaintiff underwent with defendant occupational therapists Amy S. Hayes and LeAnn G. Witgen at the Work Improvement Rehabilitation Center (WIC) at Ingham Regional Medical Center. Following carpal tunnel surgery on both of her wrists, plaintiff was referred to the WIC. She alleges that she was directed by defendants to push an 800 pound cart, which resulted in the onset of extreme back pain. Plaintiff asserts that as a result of this injury, she had to undergo corrective care and treatment, including surgery, and that she has been unable to return to work.
Plaintiff filed this medical malpractice action on May 11, 2001. Plaintiffs complaint was accompanied by two affidavits of merit, one signed by a physical therapist and one signed by an occupational therapist. Defendants answered and filed an affidavit of meritorious defense signed by a physical therapist, Ellen Smith.
On May 3, 2004, plaintiff moved for a default against defendants, asserting that defendants’ affidavit of meritorious defense
STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision regarding a motion to strike a pleading. Belle Isle Grill Corp v Detroit,
We review de novo questions of statutory interpretation. Cox v Flint Bd of Hosp Managers,
ANALYSIS
The RJA provides that in an action alleging medical malpractice, a defendant or the defendant’s attorney shall file “an affidavit of meritorious defense signed by a health professional who the defendants’ attorney reasonably believes meets the requirements for an expert witness under section 2169.” MCL 600.2912e(l). At issue in this case is § 2169(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 thisstate 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.
(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed [MCL 600.2169(1).]
Initially, we note that § 2169(1) is stated in negative terms; it specifies when “a person shall not give expert testimony. .. .” The requirements necessary to avoid that prohibition are two-fold: a person may be qualified as an expert if (1) the person is “licensed as a health professional” and (2) if the criteria listed in subsections a, b, and c are satisfied. We examine each of those requirements separately.
1. LICENSED AS A HEALTH PROFESSIONAL
Defendants argue that the statute’s “licensed as a health professional” requirement means that only persons who have a “license,” such as physical therapists, may qualify as experts, and that persons who are only registered may not. Defendants’ argument in this regard certainly has facial validity and comports with usual principles of statutory construction requiring that we discern and give effect to the Legislature’s intent as expressed in statutory language, giving statutory terms their plain and ordinary meaning. Cox, supra at 18.
However, that approach only applies to “[u]ndefined statutory terms.” Id. In other words, if the Legislature uses terms for which the statutes supply definitions, those statutory definitions are the best indicators of legislative intent and should be used even if they appear contrary to the plain and ordinary meaning of statutory terminology.
The statutory definitions applicable in this case are found in the Public Health
Because occupational therapists cannot call themselves occupational therapists or use a similar title without being registered, registration constitutes a “license” within the meaning of that term as defined by the statute. We thus reject defendants’ argument that only a physical therapist, and not an occupational therapist, may be qualified to give expert testimony under § 2169(1). A physical therapist is certainly “licensed,” MCL 333.17801 through MCL 333.17822, but so is an occupational therapist.
2. CRITERIA IN SUBSECTIONS a, b, AND c
Initially, we find guidance in Cox, in which our Supreme Court considered § 2912a of the RJA, MCL 600.2912a, a statute establishing the standard of care for malpractice actions. Our Supreme Court noted that, under MCL 333.17001(l)(c), a “physician” is defined to be “an individual licensed under this article to engage in the practice of medicine.” Cox, supra at 19. The trial court had concluded that only such a “physician” can be considered either a “general practitioner” or a “specialist” for purposes of § 2912a. Cox, supra at 18-19. Thus, our Supreme Court concluded that the standard of care provisions within § 2912a do not apply to a nurse because § 2912a applies only to a defendant who is either a “general practitioner” or a “specialist” and because a nurse is neither. Cox, supra at 19-20. To determine the applicable standard of care for nurses, it was necessary to turn to the common law. Id. at 20.
Like § 2912a of the RJA construed in Cox, the above-quoted subsections a and c of § 2169(1) of the RJA at issue here employ the terms “specialist” and “general practitioner.” Specifically, an expert seeking to testify for or against a defendant in a medical malpractice action must meet certain criteria if the defendant is a “specialist,” § 2169(l)(a), and different
This same analysis does not apply to § 2169(l)(b) because it is not exclusively
Thus, contrary to defendants’ argument that § 2169(1) is wholly inapplicable here, subsection b applies even though defendants are not physicians. McElhaney, supra at 497. We turn to the question presented by the parties regarding that subsection, whether Smith is engaged in the “same health profession” as defendants.
The Public Health Code defines a “health profession” as “a vocation, calling, occupation, or employment performed by an individual acting pursuant to a license or registration issued under this article.” MCL 333.16105. Contrary to our dissenting colleague’s reasoning, there is no requirement that an activity be licensed or registered to constitute a “health profession,” as long as the individuals engaged in the activity are licensed or registered.
The record here amply demonstrates that defendants, as registered occupational therapists, and Smith, as a licensed physical therapist, are engaged in the same “vocation, calling, occupation, or employment,” i.e., work-hardening therapy. Smith’s uncontested affidavit states that both occupational therapists and physical therapists receive training in work-hardening techniques, that they often work side by side in work-hardening therapy programs, and that there is no difference between the work performed by an occupational therapist and a physical therapist in a work-hardening therapy program. As defendants point out, plaintiff largely acknowledges these facts in her pleadings. Her notice of intent specified that defendants had failed to provide her appropriate “physical therapy” at the WIC and her complaint alleges that defendants “held themselves out to the public as specialists in physical and/or occupational therapy.” Affidavits of merit filed by experts on plaintiffs behalf described the “applicable standard of care for the occupational and/or physical therapist” and, as noted earlier, those affidavits were filed by both an occupational therapist and a physical therapist.
Thus, we would conclude that Smith is engaged in the “same health profession” as defendants under § 2169(l)(b).
The panel reached that result even though it recognized that “it may appear reasonable that a physician with substantial educational and professional credentials should be able to testify about the standard of care of a nurse who works in a closely related field . ...” Id. at 497. We agree with that observation. Similarly, here it appears unreasonable that a physical therapist should not be qualified to testify about the standard of care applicable to an occupational therapist engaged in an occupation like work-hardening therapy where both kinds of professionals are regularly employed together. The McElhaney approach exacts a hardship on both plaintiffs and defendants as they seek to prosecute and defend medical malpractice actions. That hardship is not required under the Public Health Code’s definition of “health profession” as
Nonetheless, we must follow McElhaney. MCR 7.215(J)(1). Therefore, we conclude that Smith is not engaged in the “same health profession” as defendants and is, therefore, not qualified to give expert testimony under § 2169(l)(b).
Nevertheless, we conclude that the trial court erred in deciding that defendants’ counsel filed Smith’s affidavit of meritorious defense without any reasonable belief that she met the requirements of § 2169. Whether defense counsel acted reasonably in this regard is determined by examining the situation as it existed at the time the affidavit was filed. McElhaney, supra at 495-496. The record in this case demonstrates that defense counsel could have filed an affidavit signed by either a physical therapist or an occupational therapist
The trial court’s erroneous decision on the “reasonable belief” question was the basis for its further decision to enter a default judgment against defendant. We reverse that decision and remand this matter for further proceedings consistent with this opinion. We do not retain jurisdiction.
Notes
Plaintiffs’ complaint alleges that defendants Amy S. Hayes and LeAnn G. Witgen engaged in malpractice and that defendants Ingham Regional Medical Center and its Work Improvement Rehabilitation Center are vicariously hable for that malpractice. Accordingly, further references to “defendants” in this opinion refer to Hayes and Witgen.
Plaintiff Donald Brown was dismissed by stipulation of the parties. Further references to “plaintiff” in this opinion refer to Jocelyn Brown.
All the statutory provisions at issue in this appeal are part of the RJA.
The trial court apparently based its decision on both subsections 1 and 2 of § 2169. However, the reasoning of the trial court was that Smith did not qualify because she is a physical therapist and defendants are occupational therapists. That analysis is based on the “match” requirements of subsection 1. The more general language of subsection 2 cannot justify disqualifying an expert simply because the expert’s credentials do not sufficiently match those of the defendant health professional if the criteria listed in subsection 1 do not lead to that result.
We employ Public Health Code definitions to determine the questions raised under the RJA here, following the approach taken by the Supreme Court in Cox. There, the majority relied on Public Health Code definitions to determine how the RJA applied to nurses. Cox, supra at 19-20. Here, we do the same to determine how the RJA applies to physical therapists and occupational therapists.
Although § 2169 of the RJA contains no definitional provisions, the definition provided in § 5838a(l)(b) of the RJA, MCL 600.5838a(l)(b), which pertains to the accrual of medical malpractice claims, supports our analysis. Section 5838a(l)(b) defines a “licensed health care professional” to include “an individual licensed or registered under . .. the public health code....” That section specifically exempts sanitarians and veterinarians from the application of § 5838a(l), even though sanitarians may be registered, MCL 333.18401 et seq., and veterinarians are licensed, MCL 333.18801 et seq.
The Cox definitions of “specialist” and “general practitioner,” which limit their applicability to physicians, control for all uses of those identical terms within related provisions of the RJA. “ ‘ “Identical language should certainly receive identical construction when found in the same act.” ’ ” Empire Iron Mining Partnership v Orhanen,
Although subsections b(¿) and (ii) each establishes an additional expert qualification standard to he used “if [the defendant] is a specialist,” those additional requirements do not negate the standards to be employed in cases like this, in which the defendants are not “specialist” physicians.
Plaintiffs do not contend that Smith fails to meet the other requirements of subsection b regarding the time she spends in therapy activities.
The dissent’s interpretation of the statute improperly constrains the use of experts, in derogation of common-law principles otherwise applicable, more than is required by the statutory language. Nation v WDE Electric Co,
As our dissenting colleague points out, the language of § 2169(l)(b)(i) may be read to suggest that a “health profession” is a particular licensure or registration. This understanding is directly contradicted by the specific and more expansive statutory definition of “health profession” discussed above. Giving deference to that specific definition, we read § 2169(l)(b)(¿) as requiring that an expert must practice in the same “vocation, calling, occupation, or employment” as does a defendant, both by virtue of a license or registration.
If we could conclude that Smith was qualified, that would he a basis for reversing the trial court’s order granting a default judgment against defendants. We reach that same result, however, for reasons discussed below. Therefore, the issue on which we are in disagreement with McElhaney is not “outcome determinative” for the purposes of MCR 7.215(J)(2).
Defendants offered a second affidavit of meritorious defense, signed by an occupational therapist, after plaintiff challenged Smith’s affidavit.
Concurrence Opinion
{concurring in part and dissenting in part). I agree that defendants’ counsel reasonably believed that the physical therapist expert complied with the requirements of MCL 600.2169 and that reversal is warranted on that basis.
I do not agree that the expert, in fact, met the requirements of § 2169(l)(b) or that McElhaney v Harper-Hutzel Hosp,
The physical therapist expert was not in the “active clinical practice of the same health profession in which the [defendant occupational therapist] is licensed . ...” MCL 600.2169(l)(b)(i). Although there is apparently considerable overlap in the activities of a physical therapist and an occupational therapist, they are not in the practice of the same health care profession because each is in the practice of the