HALLORAN v BHAN
Docket No. 121523
Supreme Court of Michigan
July 20, 2024
470 MICH 572
Argued November 13, 2003 (Calendar No. 8). Decided July 20, 2004.
In an opinion by Chief Justice CORRIGAN, joined by Justices TAYLOR, YOUNG, and MARKMAN, the Supreme Court held:
Court of Appeals decision reversed, circuit court order striking the plaintiff‘s witness is reinstated, and case is remanded to the circuit court.
Justice WEAVER, joined by Justice CAVANAGH, dissenting, stated that the majority‘s premature conclusion that the plaintiff‘s standard-of-care expert witness is not qualified is based on the unsupported presumption that the defendant was practicing in both critical care medicine and internal medicine, the latter of which the defendant was board-certified. There is nothing in the record to suggest precisely in what area of medicine the defendant
Justice KELLY, dissenting, stated that the majority erred in concluding that plaintiff‘s expert was not qualified to testify that the defendant doctor breached the standard of care. This conclusion was based on the faulty assertion that the area of medical malpractice was uncontestedly internal medicine. In fact, it was uncontested that the area of alleged malpractice was critical care medicine. Because this was not contested by defendant, and both plaintiff‘s expert and the defendant doctor practiced critical care medicine, plaintiff‘s expert witness should have been allowed to testify. The Court of Appeals decision should be affirmed.
The Legislature intended that experts in medical malpractice cases be knowledgeable in the appropriate standard of care in the medical area about which they are testifying. A rule requiring matching of all board certifications, whether relevant to the case or not, would not be in keeping with that intent.
NEGLIGENCE - MEDICAL MALPRACTICE - EXPERT WITNESS - BOARD CERTIFICATION.
In a medical malpractice case, the plaintiff‘s expert on the issue of the appropriate standard of care must have the same specialty and be board-certified in the same specialty as the defendant (
Blaske and Blaske, P.L.C. (by E. Robert Blaske and Thomas H. Blaske), for the plaintiff.
Fraser Trebilcock Davis & Dunlap, P.C. (by Mark A. Bush and Graham K. Crabtree), for defendants Raakesh C. Bhan, M.D. and Critical Care Pulmonary Medicine, P.C.
Johnson & Wyngaarden, P.C. (by Robert M. Wyngaarden and Michael L. Van Erp), for defendant Battle Creek Health Systems.
Amicus Curiae:
Kerr, Russell and Weber, PLC (by Richard D. Weber and Joanne Geha Swanson), for the Michigan State Medical Society.
CORRIGAN, C.J. In this interlocutory appeal, we must determine the meaning of the medical malpractice expert witness qualification requirements of
We hold that
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
Plaintiff‘s decedent, Dennis Halloran, was experiencing renal failure and died of cardiac arrest after being treated by defendant physician Raakesh Bhan in the emergency room at defendant Battle Creek Health Systems. Plaintiff brought a medical malpractice action, alleging that defendant physician Bhan‘s negligent treatment of Halloran‘s renal failure and subsequent cardiac arrest caused the death.1 Bhan is board-certified in internal medicine by the American Board of Internal Medicine (ABIM) and also received a certificate of added qualification in critical care medicine2 from the ABIM. The parties do not dispute that the subspecialty certification is not a “board certification” for the purpose of the statute. It is not disputed that Bhan was practicing critical care at the time of the event in question.
Plaintiff proposed Dr. Thomas Gallagher as her standard-of-care witness. Gallagher is board certified in anesthesiology by the American Board of Anesthesiology (ABA), and has received a certificate of added qualification in critical care medicine from the ABA. Gallagher is not board certified in internal medicine and has not received any training that would make him eligible for certification in internal medicine.
A split Court of Appeals reversed and remanded, holding that because the subspecialty of critical care was shared by both physicians, plaintiff‘s trial expert fell within the requirements of the statute.3 This Court granted leave to appeal on March 25, 2003, limited to the issue regarding the proper interpretation of
II. STANDARD OF REVIEW
This Court reviews de novo issues of statutory interpretation. In re MCI, 460 Mich 396, 413; 596 NW2d 164 (1999).
III. ANALYSIS
When facing issues regarding statutory interpretation, this Court must discern and give effect to the Legislature‘s intent as expressed in the statutory language. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000); Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d 70 (2000). This principle was recently explained in Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002):
An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. People v Wager, 460 Mich 118, 123, n 7; 594 NW2d 487 (1999). To do so, we begin with an examination of the language of the statute. Wickens v Oakwood Healthcare System, 465 Mich 53, 60; 631 NW2d 686 (2001). If the statute‘s language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999).
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.
We must now determine whether
The Court of Appeals majority held that it is sufficient under the statute if the expert witness and the defendant doctor share only the same subspecialty, but not the same board certification. We disagree because this argument runs contrary to the plain language of the statute.6
This interpretation is supported by the use of the word “however” to begin the second sentence. Undefined statutory terms must be given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions. Donajkowski v Alpena Power Co, 460 Mich 243, 248-249; 596 NW2d 574 (1999); Koontz v Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). Random House Webster‘s College Dictionary (2d ed) defines “however” as “in spite of that” and “on the other hand.” Applying this definition to the statutory language compels the conclusion that the second sentence imposes an additional requirement for expert witness testimony, not an optional one. In other words, “in spite of” the specialty requirement in the first
There is no exception to the requirements of the statute and neither the Court of Appeals nor this Court has any authority to impose one. As we have invariably stated, the argument that enforcing the Legislature‘s plain language will lead to unwise policy implications is for the Legislature to review and decide, not this Court.7 See Jones v Dep‘t of Corrections, 468 Mich 646, 655; 664 NW2d 717 (2003).
It is not disputed that defendant Bhan is board certified in internal medicine, but proposed expert witness Gallagher is not.
IV. CONCLUSION
Therefore, we reverse the decision of the Court of Appeals and reinstate the circuit court‘s order granting
TAYLOR, YOUNG, and MARKMAN, JJ., concurred with CORRIGAN, C.J.
WEAVER, J. (dissenting). I dissent from the majority‘s premature conclusion that plaintiff‘s standard-of-care expert is not qualified to testify under
The nature of the alleged malpractice cannot be confirmed with such certainty from the record, because the trial court never ruled on whether internal medicine was involved. It is not clear that defendant Bhan was practicing internal medicine or critical care at the time of the alleged malpractice. Apparently, even the majority is unable to determine with certainty the nature of the malpractice at issue, because the majority asserts that it is undisputed that defendant was practicing not only internal medicine at the time of the event in question, but also critical care medicine. Ante at 578 n 5 and 575.
Whether defendant Bhan was practicing critical care or internal medicine or a mix of both is essential to determining whether plaintiff‘s expert is qualified to testify regarding the appropriate standard of care under
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 . . . .
“Appropriate,” used as an adjective in the context of the statute means, “right for the purpose; suitable; fit; proper.” Webster‘s New World Dictionary (3d ed). On the basis of an ordinary understanding of the language of the statute, the Legislature‘s intent is that a standard of care expert must be able to testify regarding a fitting, suitable, and proper standard of care. From this, the significance of whether defendant Bhan was practicing critical care or internal medicine or both at the time of the alleged malpractice is obvious.
To help ensure that expert testimony regarding the standard of care will be appropriate to the underlying alleged malpractice event,
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.
The majority concludes that plaintiff‘s expert witness is not qualified to testify under this subsection of
Further, despite the majority‘s claims to the contrary, ante at 578 n 5, the majority‘s assumption trivializes the obvious legislative intent that the plaintiff‘s expert be able to testify about an appropriate standard of care, because, related or not to the underlying alleged malpractice event, the majority holds that plaintiff‘s expert must match defendant Bhan‘s board certification. The real scope of the majority‘s holding is revealed in its insistence that it must parse the meaning of the conjunction “however” and conclude that there is “no exception” to the
For these reasons, I would remand this matter to the circuit court for it to consider whether the nature of the underlying malpractice involved critical care medicine or internal medicine or both. This will allow the court to determine whether plaintiff‘s standard-of-care expert, who specialized in critical care, but who was not a board-certified internist, is qualified to testify against defendant Bhan at trial under
CAVANAGH, J., concurred with WEAVER, J.
KELLY, J. (dissenting). I disagree with the majority‘s conclusion that the plaintiff‘s expert was not qualified to testify that the defendant doctor breached the stan-
Rather, the “uncontested” area of alleged medical malpractice is critical care. Plaintiff argued that critical care medicine was the relevant area of inquiry. Defendant never disputed it. And the trial court never made a determination on the issue.
In misconstruing the record, the majority has made an improper factual determination. Once it is exposed, it becomes obvious that the outcome of the majority‘s decision is fatally flawed. The Court of Appeals decision should be affirmed and plaintiff‘s expert witness should be allowed to testify.
A PRINCIPLED APPROACH TO THE STATUTE
However, it is the medical specialty in which the defendant was practicing when the malpractice allegedly occurred that is the touchstone of an expert‘s qualification to testify regarding the “appropriate standard of care.” Logically, testimony regarding the appropriate standard must pertain to the defendant‘s alleged breach of a specific standard of care. The statute comprehends that fact.
At the hearing on defendant‘s motion to strike, the trial court addressed neither the area of the alleged malpractice nor the relevance of defendant‘s board certification to that area. The court merely ascertained what paper credentials each doctor held and whether their board certifications matched. Left unresolved was whether the area of alleged malpractice must be identified before the application of
At the hearing on the motion, defendants did not argue that internal medicine was being practiced when the alleged malpractice occurred. Having no interest in discussing the area of the alleged malpractice, defendants focused solely on whether the board certifications possessed by the experts must match. In contrast, plaintiff argued that the area of medicine being practiced was the specialty of critical care medicine. Accordingly, plaintiff argued that one must consider the qualifications of the expert with regard to critical care medicine, not internal medicine.
Hence, the majority correctly notes that the issue of relevancy was uncontested. Plaintiff asserted that critical care was the relevant medical area. Defendant did not dispute that claim. Only plaintiff alleged the appropriate area of medical malpractice. Defendant chose instead to argue that the board certification of defendant and plaintiff‘s expert must match. Thus, defen-
Plaintiff‘s expert planned to testify as a critical care doctor commenting on the care and treatment provided by another critical care doctor. He was prepared to testify that the defendant doctor breached several standards of care in critical care medicine.
A conclusion that the nature of the underlying malpractice claim has no bearing on an expert witness‘s qualification to testify would defy the statute and its purpose. An assumption that an expert witness must hold the same board certification as that held by the defendant, even when it bears no relevance to the malpractice alleged, would be fallacious.
THE STATUTE AND THE LEGISLATURE‘S INTENT
The pertinent statutory language is located in
(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.
The Legislature‘s true intent in writing it is revealed only when one reads § 2169 in its entirety.
In setting forth the requirements that an expert witness must meet before qualifying to testify regarding
The second sentence of
Applied to this case, if the alleged malpractice were in internal medicine, the expert would have to be board-certified in that area because the defendant is board-certified in it. Alternatively, if the alleged malpractice involved a medical specialty in which defendant was not board-certified, the first sentence of the statute would control. If defendant specialized in that area, the expert witness would have to specialize in that area as well.
Furthermore,
Moreover, the statute continues:
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.
[
MCL 600.2169(2) .]
Subsections 1 and 2 do not stand alone. Subsection 1 sets forth a threshold requirement applicable only to standard-of-care witnesses. But all expert witnesses, including standard-of-care witnesses, are subject to subsection 2. There is no language indicating that subsection 1 must be met before subsection 2 is applied to a standard-of-care witness. The qualification of any expert must be evaluated under subsection 2. Its criteria ensure that the testimony of the expert provides assistance to the trier of fact.
The statute, read as a whole, bestows considerable discretion on the trial judge. Included is the authority to determine that the area in which the defendant is board-certified is relevant to the standard of care involved in the suit.
Subsection 2 does not exclude standard-of-care witnesses from its purview. It reads: “In determining the qualifications of an expert witness in an action alleging medical malpractice . . . .” There is no language in this section to suggest that it is applicable to all but standard-of-care witnesses. Rather, the requirements apply to “an expert witness.”
It is likely that cases will arise in which a doctor chooses to practice outside the doctor‘s area of board certification. A construction of the statute that ignores the area of the alleged malpractice could lead to absurd results in these cases. For example, assume a doctor is board-certified as an obstetrician-gynecologist (OB-GYN), but practices some dermatology, an area in which he is not board-certified. Assume he is sued for negligently removing a mole from the shoulder of a patient. An interpretation that ignores relevance would require the patient to find an expert who is a board-certified OB-GYN practicing some of the time in dermatology to testify about the standard of care.
A doctor is not required by law to be board-certified in order to practice in a particular area of medicine. An OB-GYN can legally practice as a dermatologist without specialized training in dermatology. Even if an expert witness could be found to testify in the hypothetical case, he would have to testify that no special standard of care exists for an OB-GYN removing moles. His specialized expertise would be useless. A general practitioner, with no board certification, could testify as accurately about the applicable standard of care in the hypothetical case. If the statute were read to account for relevance, he would be allowed to do so.
A blind adherence to matching paper credentials would demonstrate a misunderstanding of the nature of an expert witness‘s testimony, which is to determine the reasonableness of the defendant doctor‘s conduct. The standard of care the doctor must meet is that of a doctor practicing in the area of medicine involved in the malpractice claim. “[T]he patient normally understands and expects that physicians, acting within the ambit of their professional work, will exercise the skill,
What is important is not the defendant physician‘s paper credentials, to the exclusion of all else. It is rather that the expert possesses the same knowledge regarding the applicable standard of care in the area of the alleged malpractice as the defendant doctor should possess. The Legislature recognized that a board-certified doctor may be held to a different standard of care than a doctor who is not board-certified. This is not relevant, however, if the area in which the doctor is board-certified is not related to the malpractice claim.
If the alleged malpractice involves a specialty area, such as dermatology, it is the standard of care applicable to a dermatologist that must be met by the defendant physician. It is not the standard of care of the defendant physician who happens to be a board-certified OB-GYN as well as a dermatologist. See
Future defendants, as well as plaintiffs, would be adversely affected by a decision to ignore relevance. The statutory provisions at issue refer to a defendant “against whom or on whose behalf” an expert offers testimony.
Like a plaintiff‘s standard-of-care expert, an appropriate witness would be more difficult to find. Once located, if at all, the witness could be asked to testify about an irrelevant standard of care. This would increase the cost and difficulty both of bringing and defending medical malpractice actions. Plaintiffs with a legitimate suit would be adversely affected, and the costs and complexity of defense for doctors and hospitals sued for malpractice would be increased.
Surely, the Legislature did not intend the statute to be read to reach this counterproductive result. What it did intend is that experts in medical malpractice cases be knowledgeable in the medical areas about which they testify. It also intended that courts consider the area of the alleged malpractice in applying the statute and assessing what board certification experts must possess. The statute‘s legislative history confirms this belief.
For example, the Report of the Senate Select Committee on Civil Justice Reform stated that the proposed statute was intended ” ‘to make sure that experts will have firsthand practical expertise in the subject matter
While MRE 702 authorizes expert testimony on the basis of “knowledge, skill, experience, training, or education,” the statute operates to preclude certain witnesses from testifying solely on the basis of the witness’ lack of practice or teaching experience in the relevant specialty. [Schanz at 24-25 (emphasis added).]
The Legislature‘s purpose in writing the expert witness statute is undisputed: it is to ensure that an expert is familiar with the standard of care at the level and in the area in which the malpractice is alleged to have occurred. Creating a rule that requires board certifications to match regardless of whether that area is the subject of the malpractice would not be in keeping with this intent. If the Legislature meant to illogically restrict some medical malpractice causes of action on such an arbitrary basis, it could and would have done so clearly. Because it did not, a contrary interpretation would fly in the face of the intent underlying the statute and, moreover, would produce an absurd result.
CONCLUSION
At issue in this case is the interpretation of
Where a defendant is board-certified in the area of the alleged malpractice, the second sentence of MCL
In this case, the defendant doctor was board-certified in internal medicine. However, it is not disputed that the relevant standard of care involved critical care medicine. Thus, given the arguments at the hearing on defendant‘s motion to strike, I would affirm the decision of the Court of Appeals to reverse the trial court‘s decision to strike plaintiff‘s expert.