DECKER v. FLOOD
Docket No. 224482
Court of Appeals of Michigan
October 26, 2001
248 Mich. App. 75
Docket No. 224482. Submitted June 5, 2001, at Grand Rapids. Decided October 26, 2001, at 9:15 A.M.
Erik J. Decker and his wife, Vicki Decker, brought an action in the Kent Circuit Court against Kevin Flood, D.D.S., and Kevin Flood, D.D.S., P.C., for damages allegedly suffered as a result of the failure of Dr. Flood to properly perform root canal procedures on two of Erik Decker‘s teeth. At the time of the root canal procedures, Dr. Flood was a dentist engaged in the general practice of dentistry. Attached to the plaintiffs’ complaint was an affidavit of merit signed by Michael J. Gallagher, D.D.S., in which Dr. Gallagher was described as a doctor of dental surgery and a member of the American Association of Endodontists and in which Dr. Gallagher stated that he was familiar with the standard of practice for a dental surgeon treating a patient with Erik Decker‘s complaints and opined that Dr. Flood had breached the standard of practice by failing to properly drill, clean, fill, or pack the root canals or to properly remove tissue and filling material from the root canals. The defendants moved for summary disposition, arguing that the affidavit of merit did not satisfy the requirements of
The Court of Appeals held:
1.
2. Because the term “general practitioner” is not defined in the statute and does not appear to be a technical term, it should be given its plain and ordinary meaning, which is a medical practitioner whose practice is not limited to any specific branch of medicine. A general practitioner is contrasted with a specialist, which is a medical practitioner who deals with a particular class of diseases, conditions, or patients. Because it is uncontroverted that Dr. Gallagher is an endodontist who limits his practice to root canal procedures, he is a specialist rather than a general practitioner and thus is not qualified under
3. Even if the plaintiffs’ assertion that the Legislature‘s statutory scheme produces an absurd result, it is not the function of the judiciary to correct the Legislature‘s clear expressions of policy choices as long as the legislative choices do not offend the constitution. Moreover, there is nothing absurd or unreasonable in the Legislature‘s decision that a witness giving expert medical testimony concerning the proper standard of practice or care have the same qualifications as the medical professional against whom the expert intends to testify.
Affirmed.
NEFF, P.J., concurring, stated that, although not raised or argued in this case,
- WORDS AND PHRASES — GENERAL PRACTITIONER — REVISED JUDICATURE ACT.
The term “general practitioner” as used in § 2912d of the Revised Judicature Act means a medical practitioner whose practice is not limited to any specific branch of medicine (MCL 600.2912d ). - WITNESSES — EXPERT WITNESSES — MEDICAL MALPRACTICE — STANDARD.
A medical specialist—that is, a medical practitioner who deals with a particular class of diseases, conditions, or patients—may not give expert testimony concerning the standard of practice or care imposed on a general practitioner (MCL 600.2912d ).
Schenk & Boncher (by Curtis D. Rypma), for the plaintiffs.
Smith Haughey Rice & Roegge (by Jon D. Vander Ploeg), for the defendants.
Before: NEFF, P.J., and DOCTOROFF and WILDER, JJ.
PER CURIAM. Plaintiffs appeal as of right the trial court‘s decision to grant defendants’ motion for summary disposition and to dismiss without prejudice plaintiffs’ complaint alleging dental malpractice. We affirm.
On January 13, 1997, defendant Kevin Flood1 examined plaintiff Erik Decker,2 who was complaining of pain, determined that plaintiff needed a
Plaintiffs filed their complaint on June 18, 1999. Attached to the complaint was an affidavit of merit signed by Michael J. Gallagher, D.D.S. According to the affidavit, Dr. Gallagher is a “doctor of dental surgery” and a member of the American Association of Endodontists. In the affidavit, Dr. Gallagher stated that he was familiar with the standard of practice for a dental surgeon treating a patient with plaintiff‘s complaints and opined that defendant breached the standard of practice by failing to properly drill, clean, fill, or pack the root canal or properly remove the tissue and filling material. Dr. Gallagher also claimed that defendant‘s breach of the standard of practice was a proximate cause of plaintiff‘s pain and that he, Dr. Gallagher, “had to perform a root canal retreatment” on plaintiff‘s teeth to address plaintiff‘s pain.
In response to defendants’ motion, plaintiffs argued that both defendant and Dr. Gallagher are general practitioners who perform root canals, with the only difference being that Dr. Gallagher performs only root canals. Plaintiffs argued that the statute “did not make sense,” because it precluded Dr. Gallagher, whose practice was limited to root canals, from giving expert testimony concerning the standard of practice for root canals. Plaintiffs further argued that the statute was intended to prevent a professional who has no experience at all in a given area from rendering an expert opinion.
The trial court rejected plaintiffs’ argument that Dr. Gallagher was a general practitioner and found that the evidence was uncontroverted that he specialized in root canals. The trial court also stated that the statute clearly precludes an expert who is not a general practitioner from giving expert testimony concerning the standard of practice required for a general practitioner. The court further noted that the Supreme
On appeal, plaintiffs argue that the trial court erred in finding that their affidavit of merit did not comply with
In this case, defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). It is not apparent from the trial court‘s statements on the record or the order entered by the court whether it granted the motion under subsection C(8) or subsection C(10). However, because it is clear that the court relied on evidence outside the pleadings in order to make its determination that Dr. Gallagher did not qualify as an expert under
A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim. Smith, supra at 454. The reviewing court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The court should grant the motion only if the affidavits or other documentary evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.
The issue before us in this case involves the requirements for the expert who signs the affidavit of merit that a medical malpractice plaintiff must file with the complaint pursuant to
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:
* * *
(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.
The determination of this issue requires us to interpret the language of two statutes. The primary goal of statutory construction is to determine and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The specific language of the statute is the first source for determining the Legislature‘s intent, and when the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed and judicial construction is not required or permitted. In re MCI Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
Unless otherwise defined in the statute, words or phrases should be accorded their plain and ordinary meanings, and technical terms should be construed according to their peculiar meanings.
Here, plaintiffs claim that their expert, Dr. Gallagher, meets the qualifications of
It is apparent from plaintiffs’ admission that because Dr. Gallagher “limits his practice” to root canals, he does not meet the definition of a general practitioner and is, in fact, a specialist. Further, it was undisputed that Dr. Gallagher is an endodontist, which is defined as “one who specializes in the practice of endodontics.” Stedman‘s Medical Dictionary (26th ed) (emphasis added). Applying the ordinary meaning of general practitioner as one who does not limit his practice to any particular branch of medicine, Dr. Gallagher clearly does not satisfy the requirements of
Plaintiffs also argue that the trial court‘s interpretation of the statute leads to the absurd result that a person who is eminently qualified to testify regarding the standard of practice required for performing root canals is not qualified to testify in this matter. Plaintiffs further assert that “statutes are to be construed so as to avoid absurd [sic] or unreasonableness,” citing Michigan Humane Society v Natural Resources Comm, 158 Mich App 393, 401; 404 NW2d 757 (1987). However, our Supreme Court repudiated the use of the “absurd result” rule of statutory construction in a case such as this where the language of the statute is unambiguous. People v McIntire, 461 Mich 147, 155-158; 599 NW2d 102 (1999). The Supreme Court‘s decision in McIntire precludes this Court from utilizing rules of statutory construction to impose policy choices different from those selected by the Legislature. Id. at 152. “[I]n our democracy, a legislature is free to make inefficacious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution.” Id. at 159, adopting as its own the language of Judge YOUNG‘s dissent in People v McIntire, 232 Mich App 71, 126; 591 NW2d 231 (1998). Clearly, it is not within our authority to second-guess the wisdom or reasonableness of unambiguous legislative enactments even where the literal interpretation of the statute leads to an absurd result.
Even if this Court had the authority to construe an unambiguous statute so as to avoid an alleged absurd
Affirmed.
NEFF, P.J. (concurring). I concur in affirming the trial court‘s grant of summary disposition for defendants on the basis of the record in this case. I agree affirmance is the correct result, but write separately to address statutory considerations that ostensibly applied to plaintiffs’ case, but were not raised.1 My concern is that such considerations not be foreclosed in cases of this nature merely on the basis of our decision in this case.
Subject to subsection (2),2 the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff‘s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff‘s attorney reasonably believes meets the requirements for an expert witness under section 2169 [
MCL 600.2169 ]. [Emphasis added.]
In this case, plaintiffs’ counsel did not argue that he reasonably believed that the affidavit supplied met
Evidence of the levels of specialty and certifications with regard to the practice of dentistry was not set forth in the trial court.3 Plaintiffs’ counsel averred that Dr. Gallagher “has no additional degree or schooling than Dr. Flood, but chooses to limit his practice to root canal surgery.”4 Counsel maintained that Dr. Gallagher was a general practitioner and that the standard of care for performing root canal surgery is the same for Dr. Flood and Dr. Gallagher. It was counsel‘s contention that Dr. Gallagher‘s affidavit met the statutory requirements. There was at least an argument to be made that counsel reasonably
No consideration was given to the fact that the standard of care required of Dr. Gallagher with regard to a root canal may in fact be the same as that for Dr. Flood despite the fact that Dr. Gallagher limits his practice to root canal surgery. Both Dr. Gallagher and Dr. Flood practice in the same local community, Grand Rapids, Michigan. In this case, the fact that Dr. Gallagher limits his practice to root canals is less likely to render him unfamiliar with the local standards applicable to a general practitioner. See Birmingham v Vance, 204 Mich App 418, 422; 516 NW2d 95 (1994) (“The standard of care for general practitioners is that of the local community or similar communities, while the standard for a specialist is nationwide.“). The extent to which these circumstances bear, if at all, on the ultimate determination of the adequacy of the affidavit of merit under the statute is open to question.
This Court has previously addressed the fading logic in standard of care distinctions between general practitioners and specialists in cases such as this, where there is an overlap between the procedures performed by general practitioners and those who have specialized practices. Id. at 424-427. I concur with the well-reasoned opinion in Vance, in which Chief Judge DOCTOROFF stressed the need for further consideration and modification of standard of care requirements in view of the prolific advancements in communication and technology in recent years. Id., citing Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976), opinion by WILLIAMS, J. Today‘s communication and technology capabilities render meaningless any distinction in the standard of care “where a general