Estate of Linda Horn v. Michael J Swofford DoEstate of Linda Horn v. Michael J Swofford Do
Syllabus
Chief Justice: Elizabeth T. Clement
Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden
This syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions: Kathryn L. Loomis
STOKES v SWOFFORD
SELLIMAN v COLTON
Docket Nos. 162302 and 163226. Argued October 4, 2023 (Calendar Nos. 1 and 3). Decided July 25, 2024.
In Docket No. 162302, Joelynn T. Stokes, as personal representative of the estate of Linda Horn, brought a negligence action in the Oakland Circuit Court against Michael J. Swofford, D.O., and Southfield Radiology Associates, PLLC, alleging medical malpractice in connection with the care Horn received before her death. Horn was a young woman who suffered from severe headaches due to excess fluid surrounding her brain. To relieve the fluid pressure, a shunt catheter was implanted in her head on February 22, 2013. Several days later, she went to the emergency room after experiencing a headache, nausea, and vomiting. The emergency room physician ordered a brain scan, and Dr. Swofford verified the results of the scan. After receiving the results of the scan, emergency room physicians performed a procedure to relieve pressure on Horn‘s brain. Nevertheless, Horn‘s condition continued to deteriorate, and she died on March 4, 2013. Plaintiff attached an affidavit of merit executed by Scott B. Berger, M.D., Ph.D., a licensed medical physician who was a board-certified specialist in the field of neuroradiology, and the affidavit of merit contained averments that mirrored the allegations in the complaint. Defendants filed their answer and an affidavit of meritorious defense executed by Dr. Swofford, in which he averred that he was a board-certified diagnostic radiologist at the time of the events giving rise to plaintiff‘s action and that he had provided treatment equivalent to that performed by a reasonable board-certified diagnostic radiologist of ordinary learning, judgment, and skill under the same or similar circumstances with respect to the interpretation of Horn‘s brain scan. Plaintiff moved to confirm that neuroradiology was the one most relevant specialty or subspecialty for purposes of qualifying an expert. The trial court, Cheryl A. Matthews, J., denied plaintiff‘s motion and ruled that under Woodard v Custer, 476 Mich 545 (2006), the one most relevant specialty in this case was diagnostic radiology. The court denied plaintiff‘s motion for reconsideration, and plaintiff appealed. The Court of Appeals, MARKEY and FORT HOOD, JJ. (BOONSTRA, P.J., concurring), reversed, applying Woodard and determining that the most relevant specialty was neuroradiology because Dr. Swofford was evaluating a scan of the decedent‘s brain at the time of the alleged malpractice. Because Dr. Swofford was practicing neuroradiology, the plaintiff‘s expert, a neuroradiologist, was able to testify because he was certified in that subspecialty and devoted a majority of his time to practicing neuroradiology. 334 Mich App 281 (2020). Defendants sought leave to appeal, and the Supreme Court ordered oral argument on the application. 508 Mich 959 (2021). After hearing oral argument, the Supreme Court granted the application for leave to appeal and directed that oral argument be scheduled together with Selliman v Colton, Docket No. 163226. 510 Mich 1119 (2022).
In Docket No. 163226, Antonio Selliman brought a negligence action in the Oakland Circuit Court against Jeffrey J. Colton, M.D.; Jeffrey J. Colton PLLC; and the Colton Center, alleging that Dr. Colton‘s medical malpractice in performing multiple rhinoplasties on plaintiff resulted in a nasal deformity. Dr. Colton had certifications in otolaryngology, a specialty listed by the American Board of Medical Specialties (ABMS), and an additional certification from the American Board of Facial Plastic and Reconstructive Surgery. The plaintiff proposed Dr. Michael J. Armstrong as his standard-of-care expert. Dr. Armstrong had the same certifications as Dr. Colton. Plaintiff argued that the applicable standard of care in the malpractice action was otolaryngology, whereas defendants argued that the procedure at issue was a cosmetic rhinoplasty, and therefore the specialty at issue was facial plastic and reconstructive surgery. Defendants argued that Dr. Armstrong‘s deposition testimony showed that he did not devote a majority of his professional time to the active clinical practice or instruction of facial plastic and reconstructive surgery and that he thus failed to meet the requirements of
In an opinion by Justice WELCH, joined by Justices BERNSTEIN, CAVANAGH, and BOLDEN, the Supreme Court held:
The test adopted by the Woodard Court regarding the evaluation of specialists in medical malpractice actions was inconsistent with the statutory language in
- In a medical malpractice action, the plaintiff bears the burden of proving (1) the applicable standard of care, (2) breach of that standard of care by the defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. The standard of care is controlled by how other physicians in a field of medicine would act when providing the same treatment. Expert testimony is required to establish the applicable standard of care and a breach of that standard.
MCL 600.2912d(1) mandates that the plaintiff in a medical malpractice action 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 underMCL 600.2169 . These requirements include, underMCL 600.2169(1) , that the person be licensed as a health professional in this state or another state and, if the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the alleged medical malpractice 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. Also, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, the person must have devoted a majority of their professional time to either or both (1) 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, or (2) 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. Woodard noted thatMCL 600.2169 makes clear that a physician can be a specialist who is not board-certified and that a “specialist” is somebody who can potentially become board-certified. Woodard then held that if the defendant physician was practicing a particular branch of medicine or surgery in which one can potentially become board-certified at the time of the alleged malpractice, then the plaintiff‘s expert must have practiced or taught the same particular branch of medicine or surgery for a majority of their time in the preceding year. Furthermore, if a defendant physician specializes in a subspecialty and was certified in and practicing that subspecialty, the plaintiff‘s expert witness must be certified in the same subspecialty as the defendant physician. Woodard also held that a person cannot devote a majority of their professional time to more than one specialty and that therefore, in order to be qualified to testify under§ 2169(1)(b) , the plaintiff‘s expert witness must have devoted a majority of their professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the specialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant specialty. - Woodard erred by conflating the terms “specialty” and “subspecialty,” effectively reading additional text into the plain language of
MCL 600.2169(1) . “Specialties” and “subspecialties” are linguistically distinctive and separate terms, and they are also technical terms within the practice of medicine that require a technical definition. Woodard correctly defined a “specialty” as a particular branch of medicine or surgery in which one can potentially become board-certified, but a medical subspecialty is a concentrated area of knowledge and skills existing “within a specialty” requiring additional training and education. WhileMCL 600.2169 lacks a specific definition of the term “specialty,” the term is also used in several other statutes related to the medical profession and, in those contexts, is specifically tied to board certification. While the ABMS, the AOA, and the ABPS are the leading and most well-accepted sources of board certifications for physicians in the United States, there are several other general and niche board certifications offered to physicians through organizations that are not affiliated with one of these three entities. These too may be defined as specialties or subspecialties depending on the requirements for those certifications, such as whether an umbrella certification is a prerequisite to obtaining a narrower niche certification. In sum, the “matching” required byMCL 600.2169(1) is limited to general board specialties and does not require precise matching of subspecialties. - Woodard also erred by failing to analyze
MCL 600.2169 in its entirety, focusing only on Subsection (1) and neglecting the “checks and balances” effect of Subsections (2) and (3). Concerns that doing away with consideration of subspecialties for purposes of the matching requirement would mean that, for example, a pulmonologist would be qualified to testify against a cardiologist, ignoreMCL 600.2169(2) and(3) , which give the trial court discretion on whether to accept the expert as qualified to provide testimony in a particular case even if the expert specialties “match” underMCL 600.2169(1) . UnderMCL 600.2169(2) , the trial court must evaluate the educational and professional training of the expert witness, their area of specialization, the length of time they have been engaged in the active clinical practice or instruction of the health profession or the specialty, and the relevancy of their testimony; and under600.2169(3) , the trial court retains the power to disqualify an expert witness on grounds other than the qualifications set forth inMCL 600.2169 . - Principles of stare decisis favored partially overruling Woodard. When an opinion has been determined to have been wrongly decided, the Supreme Court considers whether that opinion defies practical workability, whether reliance interests would work an undue hardship if it were overruled, and whether it is no longer justified in light of changes in the law or facts. The application of Woodard‘s interpretation of
MCL 600.2169 defied practicable workability by leading to inconsistent and untenable results in subsequent cases, its overruling would not deny litigants their interest in securing appropriate experts because that right is guaranteed by statute and litigants can adjust to the new holding when obtaining experts, and while there has been no significant change in the law or facts, the aforementioned reasons showcased the instability of the decision and its lack of justification moving forward. - In Stokes, the one most relevant specialty was diagnostic radiology because it was the only specialty that defendant held and practiced. Dr. Berger, plaintiff‘s proposed expert, spent 100% of his time practicing diagnostic radiology, and thus satisfies the requirements under
MCL 600.2169(1) to testify as an expert in the case against Dr. Swofford. While the Court of Appeals reached the right result in deeming Dr. Berger fit to testify, it erred by basing this result on the conclusion that the relevant specialty was neuroradiology and that Dr. Berger was therefore qualified because he spent a majority of his time as a neuroradiologist. Instead, he was qualified because his subspecialty of neuroradiology was subsumed within the broader specialty of diagnostic radiology. - In Selliman, the Court of Appeals reached an irreconcilable result when it decided to exclude Dr. Armstrong as an expert on the sole basis of Dr. Armstrong‘s testimony as to the reason he performed his surgeries. Dr. Colton and the plaintiff‘s proposed expert were identically board-certified in otolaryngology and facial plastic and reconstructive surgery. Yet, because Dr. Colton categorized the procedure as cosmetic and not functional, the Court of Appeals deemed Dr. Armstrong unqualified to testify pursuant to Woodard. The Court of Appeals found that Dr. Armstrong testified that 10% of his practice involved facial plastic and reconstructive surgery procedures and 90% involved otolaryngology procedures. The Court of Appeals concluded that the most relevant specialty in the malpractice action was facial plastic reconstructive surgery and thus held that Dr. Armstrong could not testify because he spent a majority of his professional time practicing otolaryngology and not facial plastic and reconstructive surgery. Facial plastic and reconstructive surgery is a certification available to physicians once they obtain a board certification in either otolaryngology or plastic surgery, seemingly operating like a subspecialty. Whether facial plastic and reconstructive surgery is a subspecialty rather than a specialty is a fact-intensive inquiry best reserved for the trial court, with the option of an evidentiary hearing as needed, to consider factors that would be relevant to the medical community in making this determination. Selliman was remanded to the trial court to conduct this inquiry.
In Swofford, the Court of Appeals judgment was affirmed in part and reversed in part, and the case was remanded to the trial court for further proceedings.
In Selliman, the Court of Appeals judgment was reversed, and the case was remanded to the trial court for further proceedings.
Chief Justice CLEMENT, joined by Justices ZAHRA and VIVIANO, dissenting, disagreed with the majority‘s substantive arguments regarding the merits of Woodard, stating that Woodard correctly defined “specialty” as including “subspecialty.” She noted that the majority‘s conclusion that the requirements in
OPINION
Chief Justice: Elizabeth T. Clement
Justices: Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden
FILED July 25, 2024
STATE OF MICHIGAN
SUPREME COURT
JOELYNN T. STOKES, Personal Representative of the ESTATE OF LINDA HORN, Plaintiff-Appellee, v MICHAEL J. SWOFFORD, D.O., and SOUTHFIELD RADIOLOGY ASSOCIATES, PLLC, Defendants-Appellants. No. 162302
ANTONIO SELLIMAN, Plaintiff-Appellant, v JEFFREY J. COLTON, M.D., JEFFREY J. COLTON, PLLC, and COLTON CENTER, Defendants-Appellees. No. 163226
BEFORE THE ENTIRE BENCH
In these medical malpractice cases, we clarify the standard of care requirements for expert medical witnesses under
In a medical malpractice action, the plaintiff “bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard of care by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury.” Wischmeyer v Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995). The failure to establish any one of these elements is fatal to a plaintiff‘s medical malpractice action. Id. The standard of care is controlled by how other physicians in a field of medicine1 would act when providing the same treatment. Cudnik v William Beaumont Hosp, 207 Mich App 378, 382; 525 NW2d 891 (1994).
Expert testimony is required to establish the applicable standard of care and a breach of that standard. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016).
(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.
(b) Subject to subdivision (c) [which is inapplicable to these cases], 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.
* * *
(2) 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.
(3) This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section. [Emphasis added.]
Woodard v Custer, 476 Mich 545, is the seminal case that interpreted
Dorland‘s Illustrated Medical Dictionary (28th ed) defines a “specialist” as “a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice.”
MCL 600.2169(1)(a) requires the plaintiff‘s expert to specialize in the same specialty as the defendant physician, and, if the defendant physician is “a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.” (Emphasis added.) Both the dictionary definition of “specialist” and the plain language of§ 2169(1)(a) make it clear that a physician can be a specialist who is not board certified. They also make it clear that a “specialist” is somebody who can potentially become board certified. Therefore, a “specialty” is a particular branch of medicine or surgery in which one can potentially become board certified. Accordingly, if the defendant physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff‘s expert must practice or teach the same particular branch of medicine or surgery. [Woodard, 476 Mich at 561-562.]
Additionally, the court looked to a lay dictionary for guidance in defining “subspecialty“:
“[S]ub” is defined as “a prefix . . . with the meanings ‘under,’ ‘below,’ ‘beneath’ . . . ‘secondary,’ ‘at a lower point in a hierarchy[.]’ ” Random House Webster‘s College Dictionary (1997). Therefore, a “subspecialty” is a particular branch of medicine or surgery in which one can potentially become board certified that falls under a specialty or within the hierarchy of that specialty. A subspecialty, although a more particularized specialty, is nevertheless a specialty. [Id. at 562.]
Woodard noted that the statute makes clear “that a physician can be a specialist who is not board certified” and that “a ‘specialist’ is somebody who can potentially become board certified.” Id. at 561. The Court then held, based upon the definitions it set forth, that if the defendant physician was practicing a particular branch of medicine or surgery in which one can potentially become board certified at the time of the alleged malpractice, then the plaintiff‘s expert must
[O]ne cannot devote a majority of one‘s professional time to more than one specialty. Therefore, in order to be qualified to testify under
§ 2169(1)(b) , the plaintiff‘s expert witness must have devoted a majority of his professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the specialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant specialty. [Woodard, 476 Mich at 566.]
The defendant accused of malpractice in Woodard was board certified in pediatrics but also had “certificates of special qualifications” in pediatric critical care medicine and neonatal-perinatal medicine. Id. at 554. The alleged malpractice involved care rendered to an infant in a pediatric intensive care unit. Id. The plaintiffs offered an expert witness who was board certified in pediatrics but who did not have the matching certificates of special qualifications. Id. at 555. This Court concluded that the “most relevant specialty” was pediatric critical care medicine, rendering the proposed expert unqualified to give testimony because the expert lacked certification in that specialty and had not devoted a majority of their time to practicing or teaching that specialty. Id. at 576.2
In the companion case to Woodard—Hamilton v Kuligowski—the defendant physician was a specialist in internal medicine and was practicing internal medicine when the alleged malpractice occurred. Id. at 577-578. While the plaintiff‘s expert was also board certified in internal medicine, the Court noted that based on his training and practice, he spent the majority of his time treating infectious diseases, which is a subspecialty of internal medicine. Id. at 556, 578. The Court rejected the proposition that the overlap between general internal medicine and infectious disease medicine could be considered sufficient to allow the plaintiff‘s expert to testify
II. FACTUAL BACKGROUND: STOKES AND SELLIMAN
A. STOKES v SWOFFORD
In Stokes v Swofford, the decedent was a young woman who suffered from severe headaches due to excess fluid surrounding her brain. To relieve the fluid pressure, doctors implanted a shunt catheter.3 Within 10 days of receiving the implant, she returned to the emergency room with headaches and vomiting, and a brain scan was performed. After reviewing her brain scan, defendant Michael J. Swofford, D.O., a diagnostic radiologist with a subspecialization in neuroradiology that expired before the alleged malpractice,4 verified the results of the scan, and the results were relayed to emergency room physicians. The emergency room physicians attempted to relieve the decedent‘s brain pressure, but the procedure they used failed to help, and the decedent later died of brain swelling. The decedent‘s estate sued defendant and his practice on the grounds that the decedent should have been immediately referred to neurosurgery rather than exacerbating the swelling with an emergency procedure.
To establish the standard of care, the estate hired a specialist in neuroradiology, Scott B. Berger, M.D., Ph.D. Neuroradiology is a subspecialty of diagnostic radiology; within both disciplines, a physician is trained in interpreting bodily images, although neuroradiologists specialize in interpreting images of the brain, spine, head, and neck. Because the malpractice involved interpreting a brain image and Dr. Swofford previously possessed a neuroradiology subspecialization, the estate moved to have the trial court expressly determine that the “one most relevant specialty” was neuroradiology rather than diagnostic radiology. The trial court denied the motion, holding that the relevant specialty was diagnostic radiology and that Dr. Swofford would be held to that standard of care, which meant that the neuroradiology subspecialist—despite also being a diagnostic radiologist—could not testify as an expert for the plaintiff.
The Court of Appeals reversed in a published opinion, applying the “one most relevant specialty” standard from Woodard and determining that the most relevant specialty was neuroradiology because Dr. Swofford was evaluating a scan of the decedent‘s brain at the time of the alleged malpractice. Because Dr. Swofford was practicing neuroradiology, the panel concluded that the plaintiff‘s expert Dr. Berger, a neuroradiologist, was able to testify because he was certified in that subspecialty and devoted a majority of his time to practicing neuroradiology.
In Selliman v Colton, the plaintiff hired defendant Jeffrey J. Colton, M.D., to perform multiple rhinoplasties to repair his nose from previous injuries. Dr. Colton had certifications in otolaryngology, a specialty listed by the ABMS, and an additional certification from the American Board of Facial Plastic and Reconstructive Surgery (ABFPRS). The plaintiff sued Dr. Colton, his business, and his place of practice for medical malpractice, alleging he had a nasal deformity due to Dr. Colton‘s negligence. The plaintiff proposed Dr. Michael J. Armstrong as his standard of care expert. Dr. Armstrong possessed the identical certifications as Dr. Colton. Dr. Armstrong testified that he spent roughly 10% of his time on cosmetic rhinoplasties and 90% of his time on medical rhinoplasties.
The plaintiff argued that the applicable standard of care in the malpractice action was otolaryngology. The defendants, on the other hand, argued that the procedure at issue was a cosmetic rhinoplasty, and therefore the specialty at issue was facial plastic and reconstructive surgery. The defendants argued that Dr. Armstrong‘s deposition testimony showed that he did not devote a majority of his professional time to the active clinical practice or instruction of facial plastic and reconstructive surgery and that he thus failed to meet the requirements of
In an unpublished per curiam opinion, the Court of Appeals reversed, holding that the trial court abused its discretion by denying the motion to strike the testimony of Dr. Armstrong. Applying Woodard, the Court of Appeals determined that Dr. Colton was
practicing facial plastic and reconstructive surgery at the time of the alleged malpractice. Despite the trial court‘s note that the testimony of Dr. Armstrong was unclear as to the time spent on his various specialties, the Court of Appeals concluded that Dr. Armstrong had unequivocally testified that 10% of his practice involved facial plastic and reconstructive surgery procedures and 90% involved otolaryngology procedures. Since the most relevant specialty in the malpractice action was facial plastic reconstructive surgery, the Court of Appeals held that Dr. Armstrong could not testify because he spent a majority of his professional time practicing otolaryngology—not facial plastic and reconstructive surgery.
III. STANDARD OF REVIEW
These cases involve the interpretation of
IV. THE PROBLEMS WITH WOODARD
While Woodard attempted to clarify the medical expert standard as outlined in
A. THE PLAIN LANGUAGE OF MCL 600.2169 DOES NOT CONSIDER “SUBSPECIALTIES”
One of the primary flaws in Woodard is equating the term “specialty” with “subspecialty.” “[T]he plain and unambiguous language of a statute must be applied as written.” Nowell v Titan Ins Co, 466 Mich 478, 482; 648 NW2d 157 (2002). Nowhere in the language of
Prior to Woodard, the Court of Appeals recognized that the statute did not require an exact matching of subspecialties, stating, “[W]e presume that the Legislature was familiar with the term ‘sub-specialty’ when it enacted the provision, and the Legislature chose to use ‘specialty,’ not ‘sub-specialty.’ ” Watts v Canady, 253 Mich App 468, 470; 655 NW2d 784 (2002). The Legislature, in fact, has demonstrated this understanding by
using the term “subspecialty” in
Accordingly, this Court should recognize that “specialties” and “subspecialties” are linguistically distinctive and separate terms, and the addition of a prefix changes the meaning of the original term. As Woodard recognized and we acknowledge, these are technical terms within the practice of medicine that require a technical definition. A medical specialty refers to “[t]he particular subject area or branch of medical science to
which one devotes professional attention.”9 And Woodard aptly defined “specialist” as ” ‘a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice.’ ” Id. at 561, quoting Dorland‘s Illustrated Medical Dictionary (28th ed). The Court then noted that ”
Therefore, a “specialty” is a particular branch of medicine or surgery in which one can potentially become board certified. Accordingly, if the defendant physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff‘s expert must practice or teach the same particular branch of medicine or surgery. [Woodard, 476 Mich at 561-562.]
While we agree with the definition of “specialty” and Woodard‘s summary of
Under
As used in this section, “board certified” means certified to practice in a particular medical or other health professional specialty by the [ABMS], the American Osteopathic Association Bureau of Osteopathic Specialists, or another appropriate national health professional organization. [
MCL 500.2212a(7) .]
And the Nonprofit Health Care Corporation Reform Act employs almost the same definition as the Insurance Code:
As used in this section, “board certified” means certified to practice in a particular medical or other health profession specialty by the [ABMS] or other national health professional organization. [
MCL 550.1402a(4) .]
In defining “board certified,” these statutes reveal the Legislature‘s consistent deference to certifications offered by the ABMS and the AOA. This is unsurprising,
considering the status of the ABMS and the AOA within the medical profession as the leading medical board-certifying entities since the early 1900s.12 Additionally, the ABPS is another nationally recognized board-certifying entity commonly cited for its expertise in the United States.13
While the ABMS, the AOA, and the ABPS are the leading and most well-accepted sources of board certifications for physicians in the United States, we note that there are several other general and niche board certifications offered to physicians through organizations that are not affiliated with one of these three entities. These too may be defined as specialties or subspecialties depending upon the requirements for those certifications,
B. LACK OF ANALYSIS OF TRIAL COURT DISCRETION UNDER MCL 600.2169(2) AND (3)
A primary rationale of the Legislature in adopting
(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. [Emphasis added.]
Taking the above scenario as an example, and assuming the alleged malpractice stemmed from a cardiac issue,19 the trial court would easily exclude a pulmonologist‘s testimony because the relevancy of that testimony would prove futile to ascertaining the cardiologist‘s performance. Moreover, a trial court could go further under
While the Legislature adopted
V. PRINCIPLES OF STARE DECISIS FAVOR PARTIALLY OVERTURNING WOODARD
Stare decisis ensures “uniformity, certainty, and stability in the law . . . .” Parker v Port Huron Hosp, 361 Mich 1, 10; 105 NW2d 1 (1960). However, our precedents can be revisited if wrongly decided. Robinson v Detroit, 462 Mich 439, 464; 613 NW2d 307 (2000). A decision is wrongly decided if it misunderstood or misconstrued a plainly worded statute or if it “has fallen victim to a subsequent change in the law.” Id. We conclude that Woodard was in part wrongly decided, so the next step is to determine whether that precedent should be overruled. Robinson invokes a three-part test to examine the effects of overruling a previous incorrect judicial decision: (1) whether the questioned decision “defies ‘practical workability, ’ ” (2) “whether reliance interests would work an undue hardship” if the decision were overturned, and (3) “whether changes in the law or facts no longer justify” the decision. Id. at 464.
We hold that Woodard satisfies the standards outlined in Robinson. First, Woodard defies practical workability. The application of its standard has led to inconsistent and untenable results in subsequent cases.21 The facts and procedural
With respect to Selliman, the trial court struggled to assign just one specialty (or subspecialty) to the defendant physician‘s practice when performing a rhinoplasty to correct prior injuries to plaintiff‘s nose. The Court of Appeals reversed, drawing a hard line dividing the specialties completely. Both Stokes and Selliman demonstrate how difficult it is to apply Woodard in practice.
Second, reliance interests do not favor retention of Woodard’s interpretation of
[W]hen dealing with an area of the law that is statutory, . . . it is to the words of the statute itself that a citizen first looks for guidance in directing his actions. . . . Thus, if the words of the statute are clear, the actor should be able to expect, that is, rely, that they will be carried out by all in society, including the courts. In fact, should a court confound those legitimate citizen expectations by misreading or misconstruing a statute, it is that court itself that has disrupted the reliance interest. When that happens, a subsequent court, rather than holding to the distorted reading because of the doctrine of stare decisis, should overrule the earlier court‘s misconstruction. The reason for this is that the court in distorting the statute was engaged in a form of judicial usurpation that runs counter to the bedrock principle of American constitutionalism, i.e., that the lawmaking power is reposed in the people as reflected in the work of the Legislature, and, absent a constitutional violation, the courts have no legitimacy in overruling or nullifying the people‘s representatives. [Id. at 467 (emphasis added.)]
In short, overruling Woodard would not rob litigants of their protected interests in securing appropriate experts, for the right itself is statutorily guaranteed. Woodard departed from the plain meaning of
As an additional matter, the only parties relying on Woodard are litigants when selecting their expert witnesses, as physicians do not intend to commit malpractice and thus do not rely on Woodard in a practical sense. But even litigants are not burdened when the criteria for selecting an expert are modified. Litigants will need to adjust to the new rules as they file lawsuits. However, this Court does not recognize the need to alter litigation strategy as a sufficient reliance interest preventing the overruling of precedent. In Robertson v DaimlerChrysler Corp, 465 Mich 732, 760; 641 NW2d 567 (2002), the Court dismissed the notion that a reliance interest emerged merely because lawyers would need to relearn the law if precedent was overruled:
[T]he dissent offers the novel argument that a “reliance” interest has arisen here . . . because lawyers will have to relearn the law. That, of course, would be true of any overruling of precedent, but this has never before been viewed as raising a “reliance” interest sufficient to preclude a plainly flawed reading of the law from being corrected. Further, we are confident that it will not take long for the legal profession in our state to comprehend an interpretation of § 301(2) in which its words mean what they say. [Emphasis added.]
Similarly, here, there is no reliance interest when litigants need to adjust their litigation strategy. Such a circumstance would apply to any overruling of precedent and is not a compelling reason to prevent a flawed interpretation of the law from being corrected. There is no reason to doubt that Michigan lawyers are well-equipped to modify their expert selections in line with an accurate interpretation of
The final factor is whether the law or relevant facts have changed such that the prior decision can no longer stand. While there has not been a significant change to the language of
VI. APPLICATION TO STOKES v SWOFFORD
In light of the foregoing, the one most relevant specialty in Stokes was diagnostic radiology because it was the only specialty that defendant held and practiced. “Diagnostic radiology” is the only ABMS “specialty” at issue in Stokes. Therefore, the proposed expert would need to be a specialist in diagnostic radiology, which he was. Dr. Berger, plaintiff‘s proposed expert, practices diagnostic radiology whenever he reads a neuroimaging scan. In short, Dr. Berger spends 100% of his time practicing the “one relevant specialty“—diagnostic radiology—and thus he satisfies the requirements under
While the Court of Appeals reached the right result in deeming Dr. Berger fit to testify, it did so for the wrong reason. The Court of Appeals, in applying the faulty Woodard standard, erred by concluding that the relevant specialty was neuroradiology and that Dr. Berger was therefore qualified because he spent a majority of his time as a neuroradiologist. Instead, he was qualified because his subspecialty of neuroradiology was subsumed within the broader specialty of diagnostic radiology.
With regard to Selliman, the Court of Appeals reached an irreconcilable result when it decided to exclude Dr. Armstrong as an expert on the sole basis of Dr. Armstrong’s testimony as to the reason he performed his surgeries. The defendant physician and the plaintiff’s proposed expert were identically board certified in otolaryngology and facial plastic and reconstructive surgery. Yet, because the defendant categorized the procedure as “cosmetic” and not “functional,” the Court of Appeals deemed Dr. Armstrong unqualified to testify pursuant to Woodard. The Court of Appeals found that Dr. Armstrong unequivocally testified that 10% of his practice involved facial plastic and reconstructive surgery procedures and 90% involved otolaryngology procedures. The Court of Appeals concluded that the most relevant specialty in the malpractice action was facial plastic reconstructive surgery and thus held that Dr. Armstrong could not testify because he spent a majority of his professional time practicing otolaryngology and not facial reconstructive surgery. Facial plastic and reconstructive surgery is a certification available to physicians once they obtain a board certification in either otolaryngology or plastic surgery, seemingly operating like a “subspecialty.”22 Whether facial plastic and reconstructive surgery is a subspecialty rather than a specialty is a fact-intensive inquiry best reserved for the trial court, with the option of an evidentiary hearing as needed, to consider factors that would be relevant to the medical community in making this determination.23 Accordingly, we remand Selliman to the trial court to determine this issue in a manner consistent with this opinion.
VIII. CONCLUSION
We conclude that Woodard was in part wrongly decided and must be overruled in part. Woodard provided a skewed and inaccurate construction of
While the Court of Appeals reached the correct result in Swofford, it relied on Woodard. Thus, it erred by concluding that the relevant specialty was neuroradiology and that Dr. Berger was therefore qualified because he spent a majority of his time as a neuroradiologist. Instead, Dr. Berger was qualified because the relevant specialty was diagnostic radiology and his subspecialty of neuroradiology was subsumed within that broader specialty. We therefore affirm in part and reverse in part the judgment of the Court of Appeals, and we remand to the trial court for proceedings consistent with this opinion.
As to Selliman, the Court of Appeals held that Dr. Armstrong was not qualified to give standard of care testimony under
We do not retain jurisdiction.
Elizabeth M. Welch
Richard H. Bernstein
Megan K. Cavanagh
Kyra H. Bolden
CLEMENT, C.J. (dissenting).
The majority overrules Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006), in part, concluding that Woodard erred in its interpretation of
I. LEGAL BACKGROUND
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.
(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. [Emphasis added.]
Woodard, 476 Mich at 545, is the primary case interpreting this provision. Woodard held that a plaintiffs expert “must match the one most relevant standard of practice,” which is “the specialty engaged in by the defendant physician during the course of the alleged malpractice, and, if the defendant physician is board certified in that specialty, the plaintiff‘s expert must also be board certified in that specialty.” Id. at 560.
Relevant to the instant case, regarding the definition of “specialty,” Woodard concluded that though § 2169 references only a “specialty,” “specialty” should be read to include a “subspecialty.” In brief, Woodard reasoned: “A subspecialty, although a more particularized specialty, is nevertheless a specialty. Therefore, if a defendant physician specializes in a subspecialty, the plaintiff‘s expert witness must have specialized in the same subspecialty as the defendant physician at the time of the occurrence that is the basis for the action.” Id. at 562.
On a separate note, though Woodard focused primarily on the interpretation of
II. FACTS
I agree with the majority‘s recounting of the facts. In short, in Stokes v Swofford, the Court of Appeals held that plaintiff‘s expert satisfied the requirements of
In Selliman v Colton, the Court of Appeals held that plaintiff‘s expert did not satisfy the requirements of
III. ANALYSIS
The Court of Appeals decisions in these cases were consistent with Woodard. But the majority today chooses to overrule Woodard in part, affirming on other grounds in Stokes and reversing in Selliman. In so doing, the majority relies on two criticisms of Woodard: first, it contends that Woodard erred by defining “specialty” as including “subspecialty.” Second, the majority believes Woodard erred by not giving Subsections (2) and (3) of
A. DEFINING “SPECIALTY” VERSUS “SUBSPECIALTY”
Woodard turned to Dorland’s Illustrated Medical Dictionary for the definition of “specialist,” which was “ ‘a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice.’ ” Woodard, 476 Mich at 561. From that definition and the fact that
Focusing on the definition of “subspecialty,” Woodard concluded that for purposes of
“[S]pecialty” is defined as a particular branch of medicine or surgery in which one can potentially become board certified. Moreover, “sub” is defined as “a prefix ... with the meanings ‘under,‘‘below,’ ‘beneath’ . . . ‘secondary,’ ‘at a lower point in a hierarchy[.]‘” Random House Webster‘s College Dictionary (1997). Therefore, a “subspecialty” is a particular branch of medicine or surgery in which one can potentially become board certified that falls under a specialty or within the hierarchy of that specialty. A subspecialty, although a more particularized specialty, is nevertheless a specialty. Therefore, if a defendant physician specializes in a subspecialty, the plaintiff‘s expert witness must have specialized in the same subspecialty as the defendant physician at the time of the occurrence that is the basis for the action. [Id. at 562 (alterations in original).]
Thus, a subspecialty is treated just like a specialty under
Today‘s majority reasons that “specialty” should be defined to exclude “subspecialty,” because “specialty” and “subspecialty” are different. The Legislature could have said “subspecialty,” the majority posits, as the Legislature has used that term in another statute, namely,
1. THE LEGISLATURE NEED NOT SPECIFY “SUBSPECIALTY”
Regarding the definition of “subspecialty,” the majority defines that term as “a concentrated area of knowledge and skills existing ‘within a specialty’ requiring additional
training and education.”8 Similarly, Woodard noted that “sub” means ““under,’ ‘below,’ ‘beneath’ . . . ‘secondary,’ ‘at a lower point in a hierarchy[.]’ ” Woodard, 476 Mich at 562, quoting Random House Webster‘s College Dictionary (1997) (alterations in original). Following that definition, Woodard concluded that a subspecialty is “a particular branch of medicine or surgery in which one can potentially become board certified that falls under a specialty or within the hierarchy of that specialty.” Woodard, 476 Mich at 562. Again, Woodard and the majority agree that a subspecialty is a specialty within a specialty, or, stated otherwise, a more specialized specialty.Despite these similar definitions of “subspecialty,” the majority holds, contrary to Woodard, that the requirements in
The majority‘s reasoning on this particular point is rather slim. Other than the definitions of “board certified” that the majority relies on to tie board certification to specialties recognized by various certifying organizations, the majority supports its conclusion that “specialty” does not encompass “subspecialty” only by noting that the Legislature could have used the phrase “subspecialty,” as it did in
The majority hardly needs to explain that “specialty” and “subspecialty” are different words, though—of course they are. But as Woodard explained, the definition of “specialty” encompasses subspecialties as well. While the Legislature could have been clearer by referring to “the same specialty or subspecialty” in
The majority concedes that the use of “subspecialty” in
2. TYING SPECIALTIES AND SPECIALISTS TO BOARD CERTIFICATION
I am also skeptical of the majority‘s holding that “the words ‘specialist’ and ‘specialties’ as used in
To reach its conclusion that “the words ‘specialist’ and ‘specialties’ as used in
Further, I would not rely on definitions of “board certified” from other statutes to interpret the instant statute, as the majority does. Woodard specifically refused to consider the definition of “board certified” from the Public Health Code,
Finally, it bears noting that other Courts have followed Woodard‘s analysis on this point. Panayiotou v Johnson, 995 So 2d 871, 876-877 (Ala, 2008), pointed out that different boards sometimes differ in their treatment of an area of medicine, with one board calling an area a subspecialty and another board calling it a specialty.
The interpretation of the term “specialty” [that would recognize a distinction between specialty and subspecialty], if adopted, would be problematic in its application because it fails to recognize that some areas of medicine may technically be deemed “subspecialties” by some boards, but recognized as specialties by others. For example, in Chapman v. Smith, 893 So.2d 293 (Ala.2004), this Court recognized that the defendant anesthesiologist was certified in the specialty field of pain management by the American Academy of Pain Management (“AAPM“), a non-ABMS board. ABMS does not recognize pain management as
a “specialty” under its taxonomic scheme; however, the relevant ABMS board, the American Board of Anesthesiology, does recognize “pain medicine” as a “subspecialty.” [Id. at 876-877.]
The majority does not consider this potential difficulty.
In sum, I disagree with the majority‘s conclusion that specialties under
B. SUBSECTIONS (2) AND (3) OF MCL 600.2169
The majority believes that Woodard erroneously rendered
(2) 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.
(3) This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.
These subsections provide other grounds, in addition to those in Subsection (1), on which a court may disqualify an expert. Subsection (2) lists other factors the court should consider when evaluating an expert, and Subsection (3) simply notes that the court retains any other power it might have to disqualify an expert.
The majority relies on these subsections seemingly to rebut the concern that its interpretation of Subsection (1), which reads the statutory requirements as less burdensome than Woodard did and makes them easier to meet, will lead to impractical results. Further, the majority contends that Woodard‘s interpretation of Subsection (1) as requiring a matching of subspecialties prohibits qualified experts from testifying and “effectively nullified” Subsections (2) and (3).18
I agree with the majority on this point of the newfound functional importance of Subsections (2) and (3) under the majority‘s scheme. Under the majority‘s new interpretation of Subsection (1), Subsections (2) and (3) will play a much bigger role. Trial courts will have to exercise their discretion under those subsections much more frequently, as many more experts will meet the requirements of Subsection (1).
However, I take issue with the majority‘s accusation that Woodard rendered
The majority opinion critiques Woodard‘s interpretation of
But Woodard did comment that Subsections (2) and (3) would still play a role. Woodard, 476 Mich at 574 (“[E]ven when a proffered expert meets the criteria contained in
[I]f the defendant physician specializes in two specialties and both of these specialties are relevant, i.e., the defendant physician‘s actions were informed by both specialties at the time of the alleged malpractice, the trial court may well conclude that, although the plaintiff‘s expert witness is qualified under
§ 2169(1) § 2169(2) orMRE 702 [which would be invoked via§ 2169(3) ] because he does not specialize in both relevant specialties. [Woodard, 476 Mich at 582 (MARKMAN, J., concurring).]
Justice MARKMAN believed that even with the Woodard majority‘s “one most relevant specialty” test applying to Subsection (1), it was possible that a defendant physician might specialize in more than one specialty and that more than one specialty might be relevant. In such a case, a court would consider whether an expert meets not only the requirements of Subsection (1), but also the requirements of Subsections (2) and (3). In other words, Justice MARKMAN explicitly sets out how Subsections (2) and (3) provide additional grounds to disqualify an expert, even under Woodard‘s stricter reading of Subsection (1).19 In light of
IV. STARE DECISIS
“Stare decisis is short for stare decisis et non quieta movere, which means ‘stand by the thing decided and do not disturb the calm.’ ” Petersen v Magna Corp, 484 Mich 300, 314; 773 NW2d 564 (2009) (opinion by MARILYN KELLY, C.J.). “Under the doctrine of stare decisis, ‘principles of law deliberately examined and decided by a court of competent jurisdiction should not be lightly departed.’ ” McCormick v Carrier, 487 Mich 180, 209-210; 795 NW2d 517 (2010), quoting Brown v Manistee Co Rd Comm, 452 Mich 354, 365; 550 NW2d 215 (1996). “Stare decisis is generally ‘the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.’ ” Robinson v Detroit, 462 Mich 439, 463; 613 NW2d 307 (2000) (citation omitted). Indeed, Alexander Hamilton championed the value of stare decisis, noting that to ” ‘avoid an arbitrary discretion in the courts, it is indispensable that [courts] should be bound down by strict rules and precedents which serve to define and point out their duty in every particular case that comes before them . . . .’ ” The Federalist No. 78 (Hamilton) (Rossiter ed, 1961), p 471.
Although there is a recognized preference for stare decisis, the doctrine should not “be applied mechanically to forever prevent the Court from overruling earlier erroneous decisions determining the meaning of statutes.” Robinson, 462 Mich at 463. Rather, courts must be mindful that in considering whether to apply stare decisis or overrule precedent, there are two competing values—stability versus the need to correct errors. Petersen, 484 Mich at 314 (opinion by MARILYN KELLY, C.J.). In other words, “there is a presumption in favor of upholding precedent, but this presumption may be rebutted if there is a special or compelling justification to overturn precedent.” McCormick, 487 Mich at 211, citing Petersen, 484 Mich at 319-320.
As a preliminary matter, courts must determine whether the case was wrongly decided. Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 215; 731 NW2d 41 (2007), citing Robinson, 462 Mich at 464. If so, we proceed to consider the following factors: “whether the prior decision defies ‘practical workability,’ reliance interests, and ‘whether changes in the law or facts no longer justify the prior decision . . . .’ ” Rowland, 477 Mich at 215, quoting Robinson, 462 Mich at 464. Given my earlier analysis, I do not believe that Woodard was wrongly decided on the points that the majority raises. Assuming though that Woodard was wrongly decided, the factors of the stare decisis test strongly counsel in favor of retaining Woodard.
First, workability “involves the reception of the decision by courts and parties and the ease of its application.” Ottgen v Katranji, 511 Mich 223, 240; 999 NW2d 359 (2023). “Considerations that are relevant to this analysis include whether the decision has been met with criticism, whether its application has been contested or difficult, and, in the context of statutory interpretation, whether a reader of the
I believe that Woodard interpreted
The majority points to the results in these two cases as proof that Woodard defies practical workability. I am unconvinced, though, of the majority‘s claim that the results in these two cases are so impractical. For example, in Selliman, though otolaryngologists and specialists in facial plastic and reconstructive surgery both perform rhinoplasties, the rhinoplasty in the case was clearly cosmetic and thus unsurprisingly falls under the specialty of facial plastic and reconstructive surgery.22 I am not completely sure physicians would approach the procedure with the same standard of care given the two different goals of facial plastic and reconstructive surgery versus otolaryngology, i.e., either to improve appearance or to improve function. Again, having no medical degree, I am simply unwilling to express any definitive view on the matter. Suffice it to say, I do not think the Court of Appeals result in Selliman is so practically unworkable. It sets a clear line that a putative expert must specialize in the same subspecialty as the defendant. This bright-line rule is easy to apply, unconfusing, and makes practical sense.
In Stokes, I also believe it makes sense to consider neuroradiology the relevant specialty. Granted, this is largely because I believe that Woodard‘s definition of “specialty” and “subspecialty” is correct insofar as no board certification is required to be a specialist. I therefore do not believe that defendant‘s lapsed CAQ in neuroradiology necessarily indicates that he was not a subspecialist in that area. It hardly defies practical workability to hold that the most specific applicable subspecialty, which the defendant generally practiced in and was practicing at the time of the alleged malpractice, is the relevant one that must be matched by the expert. Additionally, the majority affirms the Court of Appeals’ result in Stokes. It is hard to believe that Woodard is unworkable when it leads to the same result the majority reaches.
However, even if we grant that the results in the instant cases seem strange, creating strange results in two cases is a far cry from wholly defying practical workability. Rather, I tend to believe that Woodard, insofar as it provides hard-and-fast
In any case, Woodard‘s rule is much clearer and therefore much more practical than the rule the majority now puts forward. Under the majority‘s view, so long as an expert is in the same specialty, even if that might be unrelated to the exact subspecialty at issue, the expert satisfies Subsection (1). How courts will deal with potentially conflicting authority regarding whether to classify an area as a specialty or subspecialty remains to be seen. See Panayiotou, 995 So 2d at 876-877. Trial court analyses will more often rely on Subsections (2) and (3) when discussing an expert‘s qualifications. Those provisions give less explicit guidance to trial courts. The shift of emphasis from a clearly, narrowly defined Subsection (1) to Subsections (2) and (3) will lead to less predictable results in medical malpractice cases overall, and, I believe, a significant increase in appeals challenging lower-court decisions under Subsections (2) and (3). An expert may also combine practicing in overlapping specialties to meet the requirements of Subsection (1), though how courts will determine which specialties sufficiently overlap to be counted together toward the “majority” of the expert‘s time requirement also is yet to be determined. How much time qualifies as a “majority” is another question about which I am curious. At bottom, while Woodard, like any bright-line rule, might create harsh results in cases on the margins, I believe that Woodard‘s great benefit is in its clear-cut definitions and general predictability, which speak to Woodard‘s practical workability. For all these reasons, I believe that the first factor counsels in favor of retaining Woodard.
Second, reliance interests also suggest that Woodard should be retained. As the majority notes, “the Court must ask whether the previous decision has become so embedded, so accepted, so fundamental, to everyone‘s expectations that to change it would produce not just readjustments, but practical real-world dislocations.” Robinson, 462 Mich at 466. I believe that Woodard has reached this level of fundamentality. It has been in place nearly 20 years and has been the definitive case regarding a complicated and often-litigated statute. It has been cited upwards of 1,400 times, including almost 400 times by our Court and the Court of Appeals. The majority relies on Robinson‘s counsel that when dealing with statutory interpretation, the Court should favor application of the statutory text over retaining a precedent that put forward an erroneous interpretation. Id. at 467. Though I agree with Robinson‘s point, I disagree with its application here, as I believe Woodard‘s interpretation of
Finally, we consider whether there have been changes in the law or facts since Woodard that would necessitate overruling it. There have not been. The statute has not been amended. No relevant facts have changed. This factor also counsels in favor of retaining Woodard.
In sum, I believe that all three factors favor leaving Woodard intact. Of course substantively I do not agree with the majority‘s critiques of Woodard. But even if the majority‘s critiques were correct, there
V. APPLICATION
A. STOKES v SWOFFORD
The majority believes that the Court of Appeals in Stokes reached the right result for the wrong reason. Under the majority‘s reasoning, diagnostic radiology is the one most relevant specialty because it is the only one the defendant was certified in and practiced. But because only specialties and not subspecialties must align under the majority‘s view, the expert with a subspecialty in neuroradiology and, more importantly, a specialty in diagnostic radiology can testify.
I believe the Court of Appeals reached the right result for the right reason. Neuroradiology is the one most relevant specialty, as reading images of the brain was what gave rise to the alleged malpractice. As Woodard said, a specialist need not be board certified. Woodard, 476 Mich at 561. I would not tie specialties to board certifications so closely as the majority does. Consequently, that defendant‘s CAQ in neuroradiology had lapsed is not definitive—defendant was still practicing neuroradiology by reading the images of plaintiff‘s brain, and I think it is fair to say he is a neuroradiologist. Because the one most relevant specialty was the subspecialty of neuroradiology and plaintiff‘s expert spent more than 50% of his time in that subspecialty, the Court of Appeals reached the correct result in holding that the expert could testify. I would affirm the Court of Appeals based on its own reasoning, not that of the majority.
B. SELLIMAN v COLTON
I also believe that the Court of Appeals reached the right result in Selliman. While the expert and defendant physician had the same board certifications in otolaryngology and facial plastic and reconstructive surgery, the procedure at issue was clearly done for cosmetic reasons, and thus, the latter specialty was the one most relevant specialty. The expert spent only 10% of his time practicing facial plastic and reconstructive surgery, so he did not spend “a majority of his . . . professional time” in the one most relevant specialty.
In sum, I disagree with the majority‘s substantive arguments regarding the merits of Woodard. I believe Woodard correctly defined “specialty” as including “subspecialty” and did not effectively negate Subsections (2) and (3) of
Elizabeth T. Clement
Brian K. Zahra
David F. Viviano
Notes
Ante at 2.A hospital licensed under article 17 [of the Public Health Code,
MCL 333.20101 et seq. ] that meets all of the following requirements:(A) . . . at least 1 of the residency programs is in the specialty area of medical practice, or in a specialty area that includes the subspecialty of medical practice, in which the applicant for a limited license proposes to practice or in which the applicant for a full license has practiced for the hospital. [
MCL 333.17001(1)(a)(ii)(A) (emphasis added).]
(1) As used in this part:
(a) “Academic institution” means either of the following:
* * *
(ii) A hospital licensed under article 17 that meets all of the following requirements:
(A) Was the sole sponsor or a co-sponsor, if each other co-sponsor is either a medical school approved by the board or a hospital owned by the federal government and directly operated by the United States Department of Veterans Affairs, of not less than 4 postgraduate education residency programs approved by the board under section 17031(1) for not less than the 3 years immediately preceding the date of an application for a limited license under section 16182(2)(c) or an application for a full license under section 17031(2), if at least 1 of the residency programs is in the specialty area of medical practice, or in a specialty area that includes the subspecialty of medical practice, in which the applicant for a limited license proposes to practice or in which the applicant for a full license has practiced for the hospital. [MCL 333.17001 (emphasis added).]
Ante at 27.As a practical matter, in many courts merely a license to practice medicine is needed to become a medical expert on an issue.
This has given rise to a group of national professional witnesses who travel the country routinely testifying for plaintiffs in malpractice actions. These “hired guns” advertise extensively in professional journals and compete fiercely with each other for the expert witness business. For many, testifying is a full-time occupation and they rarely actually engage in the practice of medicine. . . .
This proposal is designed to make sure that expert witnesses actually practice or teach medicine. . . . In particular, with the malpractice crisis facing high-risk specialists, such as neurosurgeons, orthopedic surgeons and ob/gyns, this reform is necessary to insure that in malpractice suits against specialists the expert witnesses actually practice in that same specialty. This will protect the integrity of our judicial system by requiring real experts instead of “hired guns.” [Report of the Senate Select Committee on Civil Justice Reform, presented September 26, 1985, pp 28-29.]
I note that the Court of Appeals treated both otolaryngology and facial plastic and reconstructive surgery as specialties. See Selliman, unpub op at 6 (identifying facial plastic and reconstructive surgery as the most relevant specialty). In their briefs here, the parties accept that facial plastic and reconstructive surgery is a specialty, with neither party arguing that it is instead a subspecialty. Plaintiff explicitly said that defendant and plaintiff‘s expert were identically board certified and that “[u]nlike many of the cases discussed herein, which concern specialties and subspecialties of the [ABMS], this case concerns two distinct board certifications.” Plaintiff‘s Supplemental Brief (June 8, 2022), p 29 n 4. See also Defendant‘s Supplemental Brief (July 13, 2022), p 28 (“The specialty in which Dr. Colton was engaged was facial plastic and reconstructive surgery, not ENT [ear, nose, and throat; i.e., otolaryngology].“) (boldface omitted). As plaintiff points out, there is a board certification in facial plastic and reconstructive surgery. That there is a board certification, which is typically associated with a specialty, rather than a CAQ, which is typically associated with a subspecialty, suggests that facial plastic and reconstructive surgery is only a specialty.