Lead Opinion
In this nursing mаlpractice case, Eatricia Gay, as personal representative of the estate of Dolores M. Wright, deceased, appeals by right the trial court’s order dismissing Gay’s suit against defendant Select Specialty Hospital.
I. BASIC FACTS AND PROCEDURAL HISTORY
Dolores Wright was admitted to Select Specialty Hospital to treat her rheumatoid arthritis — including associated rheumatoid lung disease — in October 2003. Wright responded well to the treatments and, on Thursday, November 13, 2003, Wright learned that she would be discharged from the hospital on the following Monday. However, the next day a nurse assisted Wright to a commode, but left her unattended. When her phone rang, Wright reached for it and fell from the commode. She injured her head, fractured her shoulder, and died two days later.
In November 2008, Patricia Gay, acting as the personal representative of Dolores Wright’s estate, sued the hospital. In the complaint, Gay alleged that, in order to comply with the standard of care applicable to Wright’s conditions, the hospital’s nursing staff had to remain by Wright’s side and assist her whenever she was out of bed. As such, the nurse should not have left Wright unattended on the commode and had the nurse not done so, she could have prevented Wright’s fall. Gay alleged that the fall was a direct and proximate result of the hospital’s nursing staffs negligence and that the fall ultimately led to Wright’s death. Gay submitted Boggs’ affidavit of merit in support of the complaint. In the affidavit, Boggs averred that the nursing staff should have assessed
The hospital alleged that its nursing staff was not negligent. Rather, Wright’s condition had improved significantly and immediately before Wright reached for the phone, a nurse had come in and instructed her to wait for assistance.
Approximately two years later, in September 2010, the hospital moved to strike Boggs as an expert and dismiss Gay’s complaint with prejudice. The hospital argued that the affidavit of merit was insufficient because Boggs was not qualified to testify as an expert. More specifically, the hospital argued that Boggs did not devote a majority of her professional time to the active clinical practice of nursing or to the instruction of nursing students in an accredited health professional school or accredited residency or clinical research program in the year immediately preceding the fall. As such, the hospital argued that Boggs was not qualified to sign the affidavit of merit under MCL 600.2169(l)(b) and that the trial court had to dismiss the case.
After hearing oral arguments on the motions, the trial court determined that Boggs did not meet the expert qualifications stated under MCL 600.2169(l)(b). Accordingly, the trial court granted the hospital’s motion to strike Boggs as an expert witness. The trial court also determined that Gay did not timely propose an alternate expert witness. Therefore, it granted the hospital’s motion to strike Gay’s supplemental witness list. The trial court then dismissed the case with prejudice. Gay now appeals.
II. STANDARDS OF REVIEW
“Ordinarily, the qualification of competency of expert witnesses is a matter for the discretion of the trial judge....” Siirila v Barrios,
Although trial courts have considerable discretion in determining whether a witness is qualified to testify as an
III. EXPERTS AND THE APPLICABLE STANDARD OF CARE
In order to establish the malpractice claim at trial, Gay had to present evidence concerning the standard of care applicable to the nursing staff involved in Wright’s care. See Craig v Oakwood Hosp,
Here, Gay retained Boggs to offer an expert opinion about the applicable standard of care. However, аfter the hospital deposed Boggs, it moved to strike her as a witness and dismiss Gay’s case. The hospital argued that Boggs could not testify about the applicable standard of care because she did not meet the professional-time requirement stated under MCL 600.2169(l)(b). Specifically, the hospital presented Boggs’s deposition testimony in which it claimed she admitted that she spent the majority of her professional time serving as an administrator. Moreover,
Thе trial court heard arguments on the hospital’s motion and determined that Gay had not met her burden to show that Boggs met the professional-time requirement:
Ah, here’s the thing: I’ve reviewed your briefs, and I am not, ah, convinced that this witness meets the threshold requirements... to offer standard of care testimony. That’s based on what’s presented to me ... including her affidavit... . The statute’s clear ... and she simply doesn’t meet the requirements.
As indicated, I don’t think there’s any argument that she [was] not actively in a clinical practice during the relevant time period, the year prior to the occurrence, and based on what’s presented to me here, she was not an instructor of students in an accredited professional school during that period of time, either.
For that reason, the trial сourt granted the hospital’s motion to strike Boggs as a witness. It also determined that Gay should not be permitted to add an expert witness and, because Gay would not be able to establish the applicable standard of care at trial, it also concluded that it must dismiss the case.
The evidence concerning Boggs’s qualifications was undisputed. As such, whether Boggs met the requirements stated under MCL 600.2169(l)(b) was — and remains — a matter of applying the undisputed facts to the proper interpretation of that statute. Accordingly, if Boggs met the qualifications stated under MCL 600.2169(l)(b) as a matter of law, then the trial court necessarily abused its discretion when it struck her as a witness on the ground that she did not meet those requirements. Kidder,
The trial court determined that Boggs did not spend any portion of her professional time in either the active clinical practice of nursing or in the instruction of nurses at an accredited health professional school or accredited residency or clinical research program. Further, the trial court made this determination despite the fact that there was plain — and unrebutted — evidence that Boggs engaged in both the active clinical practice of nursing and instructed nurses at an accredited residency or clinical research program.
A. ACTIVE CLINICAL PRACTICE
During the relevant period, Boggs served as the director of education at a hospital. Boggs testified at her deposition that she oversaw education for all support staff, which included the nursing staff. She specifically denied that her job was a “desk job” even though there “was a lot of desk [time].” She explained: “I did all the orientation, I did all the CPR classes, I did continuing education, sat on a lot of committees, oriented nurses, new nurses to their units.” Further, when asked whether she took an “active role in patient care” she stated that she did, but only “as far as I was working with the new nurses on their nursing unit.” She said that her work in orienting the nurses involved 25 percent of her professional time.
Despite this testimony, the trial court determined that Boggs did not spend any time in the active clinical practice of nursing. The trial court apparently disregarded this aspect of Boggs’s professional work because Boggs supervised the orientation of nurses and was not directly involved in the care of patients. But the Legislature
The ordinary meaning of “clinical practice” is the practice of one’s profession in a clinical setting. See Random House Webster’s College Dictionary (2d ed, 1997) (defining “clinical” to mean “pertaining to a clinic” or “concerned with or based on actual observation and treatment of disease in patients rather than experimentation or theory” and defining “practice” to mean “to pursue a profession, [especially] law or medicine”). Thus, in the case of a medical professional, in order to be engaged in an active clinical practice, the professional’s practice must involve practice in a clinical setting, which usually means a setting where patients are treated. But this is not the equivalent of stating that the professional must directly interact with patients, which is what the trial court apparently understood when it disregarded Boggs’s work overseeing the orientation of new nurses for the hospital. A medical professional can be involved in the treatment of patients in a variety of ways in a clinical setting without directly interacting with the patients. And the fact that many — if not most — nurses will physically interact with patients in the practice of their professions does not mean that a nurse who is indirectly involved in the care of patients is not engaged in the “active clinical practice” of nursing. Giving the phrase “active clinical practice” its ordinary meaning, the key question is whether Boggs was actively engaged in the profession of nursing in a clinical setting.
We also cannot agree with the dissent’s conclusion that the word “active” — as used in the phrase “active clinical practice” — must be understood to impose a requirement that a nurse directly treat patients in order to be engaged in the “active clinical practice” of nursing. Although it has the sense of being “marked by or disposed to direct involvement or practical action,” the adjective “active” can also mean “engaged in action or activity,” or “characterized by current activity, participation, or use.” Random House Webster’s College Dictionary (2d ed, 1997). In imposing professional-time requirements on expert witnesses, the Legislature intended to address a perceived problem with full-time professional witnesses who would ostensibly testify to whatever someone paid them to testify about. See McDougall v Schanz,
Here, Boggs testified that she spent one-quarter of her professional time orienting
Even if one were to disregard the ordinary understanding of the phrase “active clinical practice,” Boggs unequivocally testified that she took an active role in the care of patients while orienting nurses. Thus, even under a narrow understanding of the phrase “active clinical practice,” Boggs spent some portion of this 25 percent of her professional time in active clinical practice. Moreover, common sense dictates that some portion of this percentage involved educating the nurses about their duties and the appropriate care of patients. Because Boggs averred that the hospital was accredited,
Boggs’s work in orienting nurses at the hospital amounted to the active clinical practice of nursing within the meaning of MCL 600.2169(l)(b). Hence, the trial court’s determination that Boggs’ professional work did not involve any amount of active clinical practice must have been premised on an erroneous interpretation of MCL 600.2169(l)(b). Therefore, it abused its discretion when it struck Boggs under this erroneous understanding. Kidder,
B. THE INSTRUCTION OF STUDENTS
Similarly, the trial court erred when it determined that Boggs did not spend any of her professional time engaged
Further, although Boggs later averred that she spent some portion of her time involved in administrative activities, we do not agree with the trial court’s apparent conclusion that the time spent on administrative activities did not qualify as time devoted to the “instruction of students . . . .” The Legislature provided that the professional must have “devoted . .. his or her рrofessional time” to the “instruction of students... MCL 600.2169(l)(b)(ii). The Legislature’s statement that the professional may meet the time requirement by devoting the majority of his or her time to the instruction of students is not the same as stating that the professional must actually spend a majority of his or her time instructing students. We sincerely doubt that any instructor spends the majority of his or her professional time in the actual instruction of students. It is commonly understood that a person who teaches — and especially with regard to persons who teach a profession — must spend significant time preparing for class, maintaining familiarity with new and evolving professional techniques, and participating in meetings designed to further the educational process. Such activities are no less “devoted” to the “instruction of students” than the time actually spent in front of the students demonstrating a procedure or lecturing about the proper standards of care. As such, when it found that Boggs did not devote any portion of her professional time to the instruction of students, the trial court plainly relied on an erroneous understanding of MCL 600.2169(l)(b). As such, it necessarily abused its discretion. Kidder,
rv CONCLUSION
On the basis of Boggs’s testimony and averments, we conclude that Boggs spent significantly more than 50 percent of her professional time in the active clinical practice of nursing or instructing nursing students.
For these reasons, we reverse the trial court’s judgment and order dismissing the suit, vacate its October 2010 order striking Boggs as a witness in its entirety, and remand for further proceedings.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. As the prevailing party, Gay may tax her costs. MCR 7.219(A).
Notes
The trial court issued an order dismissing Gay’s claims against defendant Battle Creek Health System in April 2009. That order is not at issue on appeal.
On this point we must disagree with the dissent: a nurse who supervises other nurses in a hospital is practicing nursing in a clinical setting even though hе or she does not directly treat specific patients. Indeed, if the supervising nurse were negligent in the supervision or training of his or her staff and that negligence led to an injury, he or she might he liable for malpractice even though he or she never physically touched the patient. It therefore seems inapposite to state that the supervision and training of nurses at a hospital does not amount to the active clinical practice of nursing.
If only the time spent administering to patients counted towards the professional-time requirements stated under MCL 600.2169(l)(b), one would be forced to consider whether any nurse could meet the requirements. Presumably, every nurse must take lunch and bathroom breaks, fill out paperwork, attend staff meetings, and otherwise participate in a variety of activities that do not involve directly administering to patients. Nevertheless, these activities are an integral part of working in a clinical setting.
The hospital claims on appeal that Boggs did not actually teach in an accredited nursing residency or clinical program. However, Boggs averred that she taught at an “accredited facility” and for an “accredited clinical research program!].” When her averments are considered as a whole, she plainly stated that her teaching qualified because she taught in an accredited residency or clinical program. And, in the absence of evidence to contradict her averments at the time of the motion, the trial court clearly erred to the еxtent that it found that her institution was not properly accredited.
Boggs testified that she spent 50 percent of her time teaching and another 25 percent of her time in the active clinical practice of nursing. Thus, she met the more than “majority” professional-time requirement. See Kiefer,
Dissenting Opinion
(dissenting). In this nursing malpractice case against Select Specialty Hospital, the majority decision reverses the trial court’s order dismissing the action by Patricia Gay, personal representative of the estate of Dolores M. Wright, deceased. I respectfully dissent. Unlike the majority, I believe that the trial court properly determined that plaintiffs originally proposed nursing expert, Kathleen Boggs, R.N., did not meet the requisite MCL 600.2169(1) qualifications to testify regarding the appropriate standard of care. I also believe that the trial court did not err by refusing plaintiffs request to substitute Jean Hurynowicz, R.N., as plaintiffs expert witness. And, further, I believe that the trial court did not abuse its discretion by ordering dismissal with prejudice because there is no remaining time available under the wrongful death saving period.
I. EXPERT’S PROFESSIONAL TIME UNDER MCL 600.2169
The salient question is whether Nurse Boggs devoted sufficient time in the active clinical practice of nursing or instruction in nursing to qualify as an exрert witness under MCL 600.2169. The majority concludes that Nurse Boggs did meet the MCL 600.2169 qualifications because she “spent significantly more than 50 percent of her professional time in the active clinical practice of nursing or instructing nursing students.” I disagree.
MCL 600.2169 provides, in pertinent part, as follows:
(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.. . and meets the following criteria:
(b) ... [D]uring 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 thе testimony is offered is licensed ....
(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 . .. .[2 ]
The term “majority” in subsection (l)(b) requires a proposed medical expert to spend greater than 50 percent of his or her professional time practicing or teaching in the same health profession as the party against whom or on whose behalf the testimony
Nurse Boggs testified in her deposition that from about 2000 to December 2003, she was employed as the director of education at Northlake Medical Center. In this position, she “oversaw education for the whole facility,” including orienting new nurses to their units. More specifically, she testified as follows:
Q. [Counsel]: Were you taking an active role in patient care as the director of education?
A. [Nurse Boggs]: Only as far as I was working with the new nurses on their nursing unit.
Q. And what percentage of your job as director of education was working with new nurses to orientate them to their new floors?
A. Probably 25 percent.
Q. And that was 25 percent of your time. What was the other 75 percent of your time spent doing?
A. Fifty percent teaching and 25 percent meetings and setting up classes.
In sum, according to Nurse Boggs’s deposition testimony, she spent 25 percent of her time orienting new nurses to their assigned units, 25 percent of her time in meetings and setting up classes, and 50 percent of her time teaching. On the basis of this testimony alone, I would agree with the majority that Nurse Boggs would meet the MCL 600.2169(l)(b)(ii) requirement by spending greater than 50 percent of her professional time in the instruction of nursing students: she clearly testified that she spent 50 percent of her time teaching and some additional portion of her time setting up classes, which, although more akin to an administrative task, does arguably fall within the scope of “instruction of students.” However, this deposition does not end the inquiry into the calculation of Nurse Boggs’s time.
In her later-filed supporting affidavit, Nurse Boggs clarified:
[I]n addition to the 25% of my professional time I spent in the active clinical practice of nursing, most of the rest, I believe 65%, of my total professional time was very much focused on the education and training of nurses in that accredited facility and in its accredited cliniсal research programs.
She explained that the remaining 10 percent of her time was spent performing “clerical tasks facilitating my instructional role[.]”
Thus, while continuing to claim that 25 percent of her time was spent in the active clinical practice of nursing by virtue of her orientation of new nurses, Nurse Boggs significantly amended her explanation of the remaining 75 percent of her time. More specifically, according to Nurse Boggs, of the 65 percent that she claimed was spent “focused on the education and training of nurses,” she actually spent that time as follows:
• 25 percent “teaching new issues and .. . procedures and brushing up skills and knowledge bases on all policies, practices and procedures to our nurses in an accrеdited classroom setting”;
• 10 percent “chairing the nursing policy and procedure committee, as a member of the education committee”;
• 10 percent “teaching nurses[,] ... emergency medical technicians!!,] and others ... basic life support classes, providing candidate advice for advanced life support certification . .. and in continuing my own training”; and
On the basis of this additional information, I conclude that the trial court did not abuse its discretion by finding that Nursе Boggs was not qualified to testify as an expert under MCL 600.2169(l)(b).
With respect to active clinical practice, as stated, Nurse Boggs testified in her deposition and averred in her affidavit that 25 percent of her time was spent in active nursing practice by virtue of her orientation of new nurses. However, in my interpretation, I believe that Nurse Boggs’s time spent orienting new nurses to their units did not qualify as “active clinical practice” because it did not involve the active care of patients.
Thus, I turn to consideration of the remaining 75 percent of Nurse Boggs’s time. Again, Nurse Boggs clarified in her affidavit that, of that 75 percent, she actually spent 10 percent as chair of the nursing policy and procedure committee and 20 percent as the cochair of the policy and procedure committee of the hospital. Thus, 30 percent of that 75 percent was clearly spent on activities other than active clinical practice or teaching.
That leaves only 45 percent of Nurse Boggs’s time remaining. And although this time was arguably spent on the instruction of students in some capacity (10 percent on clerical tasks facilitating her instructional role; 25 percent on teaching and “brushing up” nurses on policies, practices, and procedures; and 10 percent teaching basic life support classes), 45 percent is below the requisite “majority” of time — that is, more than 50 percent — necessary to satisfy the statute. Accordingly, I would conclude that the trial court did not abuse its discretion by striking Nurse Boggs as an expert because she was not qualified to offer expert testimony in this nursing malpractice case.
II. PROPER REMEDY
A. STANDARD OF REVIEW
Plaintiff argues that even if the trial court properly struck Nurse Boggs’s testimony, it erred by dismissing the lawsuit because other remedies — such as amendment оf the affidavit of merit and substitution of Jean Hurynowicz, R.N., for Nurse Boggs, or dismissal without prejudice — were available and appropriate remedies. This Court reviews for an abuse of discretion a trial court’s decision to deny amendment
B. UNDERLYING FACTS
After receiving notice of the hospital’s September 2010 motion to strike Nurse Boggs as an expert and dismiss plaintiffs complaint with prejudice, plaintiff retained Nurse Hurynowicz to review the pertinent documentation to determine whether the hospital’s nursing staff had committed malpractice in its treatment of Wright. Nurse Hurynowicz concluded that nursing malpractice had been committed, and in October 2010, plaintiff served a supplemental witness list on the hospital.
The hospital moved to dismiss plaintiffs supplemental witness list on the ground that it was untimely filed, two years after the initial complaint had been filed and only six weeks before trial. Plaintiff responded that seeking to replace Nurse Boggs with Nurse Hurynowicz was a prudent and necessary step to avoid adjournment of the trial in the event that the trial court concluded that Nurse Boggs did not qualify as an expert. And plaintiff argued that even if the trial court refused to allow substitution of Nurse Boggs with Nurse Hurynowicz, the proper remedy would be dismissal without prejudice.
The hospital also filed a brief, arguing that dismissal with prejudice was the proper remedy. According to the hospital, plaintiff filed her complaint outside the applicable period of limitations, and the deficiеnt affidavit of merit did not toll the wrongful death saving period, which expired on November 14, 2008; thus, plaintiffs case would be timebarred, and dismissal with prejudice was the only available remedy.
After hearing further oral arguments on the matter, the trial court first stated that its understanding of the pertinent caselaw led to a conclusion that whether or not a plaintiffs attorney had a reasonable belief regarding its expert’s qualifications, the remedy was dismissal without prejudice. However, the trial court questioned whether the close temporal proximity to the trial nevertheless warranted dismissal with prejudice. The trial court also indicated that it was persuaded by caselaw that stated that a defective affidavit of merit does not toll the wrongful death saving period and results in dismissаl with prejudice.
C. AMENDMENT AND SUBSTITUTION OF NURSE HURYNOWICZ FOR NURSE BOGGS
Plaintiff argues that the trial court erred by not allowing her to substitute Nurse Hurynowicz as her expert witness. I disagree.
I first note that plaintiffs reliance on Dean v Tucker
With that said, I find it significant that the trial court’s original scheduling order required that plaintiff disclose all expert witnesses by August 18, 2009. That date was later extended until January 17, 2010. And a later scheduling order required that plaintiff depose all expert witnesses by August 3, 2010. Here, the trial court had discretion to decline to entertain requests beyond the time frames agreed to and set
D. DISMISSAL WITH PREJUDICE
Plaintiff argues that dismissal of the case should have been ordered without prejudice so that plaintiff could refile her cause of action within the remaining time left in the period of limitations. The hospital argues that it was proper for the trial court to dismiss plaintiffs lawsuit with prejudice because the trial court struck plaintiffs only nursing expert. Therefore, the hospital argues, plaintiff was unable to establish her prima facie case.
Plaintiff is correct that, pursuant to Kirkaldy v Rim,
However, as the trial court correctly recognized, pursuant to Ligons v Crittenton Hosp,
Here, it is undisputed that the alleged malpractice occurred on Novеmber 14, 2003, and therefore, the applicable two-year period of limitation
The expiration of that period of limitations did not time bar plaintiffs action, however, because under the wrongful death saving provision she had, at the latest, until November 14, 2008, to file her claim.
Accordingly, I conclude that the trial court did not abuse its discretion by ordering dismissal with prejudice.
I would affirm.
MCL 600.5852.
Emphasis added.
Kiefer v Markley,
See, e.g., Hatchett v Surapaneni, unpublished opinion per curiam of the Court of Appeals, issued November 6, 2003 (Docket No. 238714) (stating that the proposed expert witness devoted a majority of his time to active clinical practice because “about 50 percent of his professional time was spent performing research - but it was clinical research, i.e., had a significant clinical component, including patient care and treatment,” and “about 30 percent of his time to seeing his own clients”) (emphasis added).
Random House Webster’s College Dictionary (2d ed, 1997), pp 13-14.
Tisbury v Armstrong,
Vicencio v Ramirez,
Dean v Tucker,
People v Grove,
Id. at 469.
Id.
Kirkaldy v Rim,
Id.
Ligons v Crittenton Hosp,
MCL 600.5852.
Ligons,
MCL 600.5805(6).
Under the wrongful death saving provision, the personal representative of the estate of a deceased person may file an action at any time within two years after letters of authority are issued, but no later than three years after the period of limitations has run. MCL 600.5852.