WOODARD v CUSTER; WOODARD v UNIVERSITY OF MICHIGAN MEDICAL CENTER; HAMILTON v KULIGOWSKI
Docket Nos. 124994, 124995, 126275
Supreme Court of Michigan
Decided July 31, 2006
476 MICH 545
Argued December 14, 2005 (Calendar Nos. 2-3).
Shirley Hamilton, as personal representative of the estate of Rosalie Ackley, deceased, brought a medical malpractice action in the Saginaw Circuit Court against Mark F. Kuligowski, D.O., who is board-certified in internal medicine. During the jury trial, the plaintiff offered an expert witness to testify regarding the applicable standard of care. The proposed expert is board-certified in internal medicine and devotes a majority of his professional time to treating infectious diseases. The defendant asked the trial court to strike the expert witness under
In an opinion by Justice MARKMAN, joined by Justices CAVANAGH, WEAVER, and KELLY, the Supreme Court held:
- Section 2169(1)(a) requires that, where a defendant physician specializes in multiple specialties, the plaintiff‘s expert witness on the standard of practice or care must specialize only in the same specialty as that engaged in by the defendant physician during the course of the alleged malpractice, i.e., the one most relevant specialty, and if the defendant physician is board-certified in that specialty, the plaintiff‘s expert must also be board-certified in that specialty. Irrelevant specialties and board certificates do not have to match.
- Under § 2169(1), a “specialty” is a particular branch of medicine or surgery in which one can potentially become board-certified.
A “subspecialty” is a “specialty” within the meaning of § 2169(1), and, thus, if a defendant physician specializes in a subspecialty and that subspecialty is the one most relevant subspecialty, the plaintiff‘s expert witness on the standard of practice or care must have specialized in the same subspecialty as the defendant physician at the time of the occurrence that is the basis for the action to be qualified to testify under § 2169(1)(a). - To be “board certified” within the meaning of § 2169(1)(a) means to have received certification from an official group of persons who direct or supervise the practice of medicine that provides evidence of one‘s medical qualifications.
- A certificate of special qualifications is a board certificate within the meaning of § 2169(1)(a), and, thus, if the defendant physician has received a certificate of special qualifications in the one most relevant specialty, the plaintiff‘s expert witness on the standard of practice or care must have obtained the same certificate of special qualifications in order to be qualified to testify under § 2169(1)(a).
- The plaintiff‘s expert, in order to be qualified to testify on the standard of practice or care under § 2169(1)(b), must have devoted a majority of his or her professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the specialty or subspecialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant specialty or subspecialty.
- If a person does not meet all the requirements of § 2169(1), the person cannot testify about the standard of practice or care. An assemblage of experts cannot join their expertise to collectively satisfy the requirements of § 2169(1).
- Although an expert may be qualified to testify under § 2169(1), the trial court may disqualify the expert on other grounds. See
MCL 600.2169(2) ,600.2169(3) ,600.2955 , andMRE 702 . - In Woodard, the defendant physician specializes in pediatric critical care medicine and was practicing pediatric critical care medicine at the time of the alleged malpractice. Therefore, pediatric critical care medicine is the one most relevant specialty. The plaintiffs’ proposed expert did not specialize in pediatric critical care medicine at the time of the alleged malpractice and, therefore, does not satisfy the same specialty requirement of § 2169(1)(a). The defendant physician is board-certified in pediatric critical care medicine. The plaintiffs’ proposed expert is not board-certified in pediatric critical medicine and, therefore, does not satisfy the same
board certificate requirement of § 2169(1)(a). The plaintiffs’ proposed expert also does not satisfy the same practice/instruction requirement of § 2169(1)(b), because he did not practice or teach pediatric critical care medicine during the year immediately preceding the alleged malpractice. The trial court did not abuse its discretion in dismissing the plaintiffs’ claim with prejudice on the basis that the plaintiffs failed to present an expert qualified under § 2169(1) to testify regarding the appropriate standard of practice or care. - In Hamilton, the defendant physician specializes in general internal medicine and was practicing general internal medicine at the time of the alleged malpractice. During the year immediately preceding the alleged malpractice, the plaintiff‘s proposed expert did not devote a majority of his time to practicing or teaching general internal medicine. Instead, he devoted a majority of his professional time to treating infectious diseases. Therefore, the plaintiff‘s proposed expert does not satisfy the same practice/instruction requirement of § 2169(1)(b). The trial court did not abuse its discretion in directing a verdict for the defendant on the basis that the plaintiff failed to present an expert qualified under § 2169(1) to testify regarding the appropriate standard of practice or care.
In a concurring opinion by Justice MARKMAN and a concurring opinion by Chief Justice TAYLOR, joined by Justices CORRIGAN and YOUNG, the Supreme Court held:
A defendant physician‘s relevant multiple areas of specialty may be considered under
Justice CAVANAGH, joined by Justice KELLY, concurring, stated his continued belief that
Justice MARKMAN, concurring, wrote separately to note that although only the most relevant specialty must match under
Chief Justice TAYLOR, joined by Justices CORRIGAN and YOUNG, concurring in the result only, concurred with the results reached in the majority opinion but wrote separately to offer alternative analyses to reach those results. Chief Justice TAYLOR also concurred with that portion of Justice MARKMAN‘S concurring opinion
The term “specialist” as used in
The term “board certified” as used in
The issue whether a plaintiff needs to introduce expert testimony at all, and, if so, whether the plaintiff needs to introduce expert testimony concerning the standard of care applicable to all the defendant doctor‘s specialties and board certifications, depends not on
A defendant doctor may offer testimony regarding the appropriate standard of care for more than one specialty area. However, it is impossible under the statute for a plaintiff to present one expert to testify regarding the appropriate standard of care for more than one specialty area because the statute requires that the plaintiff‘s proposed expert must have devoted a majority of his or her professional time during the year immediately preceding the alleged malpractice to either the active clinical practice of, or the teaching of, the specialty about which he or she will testify.
The trial court properly dismissed the lawsuit in Woodard. The part of the judgment of the Court of Appeals that held that the plaintiffs’ expert was not qualified must be affirmed and the matter must be remanded to the circuit court for reentry of the order dismissing the plaintiffs’ claim with prejudice.
The trial court properly granted the defendant‘s motion for a directed verdict in Hamilton. The judgment of the Court of Appeals must be reversed and the matter must be remanded to the circuit court for reentry of the order directing a verdict for the defendant.
Woodard, affirmed in part and remanded to the trial court for reentry of the order dismissing the plaintiffs’ claim with prejudice.
Hamilton, reversed and remanded to the trial court for reentry of the order granting a directed verdict to the defendant.
1. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE - WORDS AND PHRASES - SPECIALTY - SUBSPECIALTY.
A “specialty” for purposes of the statute governing expert witnesses in medical malpractice actions is a particular branch of medicine or surgery in which one can potentially become board-certified; a “subspecialty” is a “specialty” within the meaning of the statute (
2. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
If the defendant physician in a medical malpractice action is a specialist and the defendant physician was practicing that specialty at the time of the alleged malpractice, the plaintiff‘s expert witness on the standard of practice or care must have specialized in the same specialty as the defendant physician at the time of the occurrence that is the basis for the action; if the defendant
3. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
To be “board certified” means to have received certification from an official group of persons who direct or supervise the practice of medicine that provides evidence of one‘s medical qualifications; a certificate of special qualifications is a board certificate (
4. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
If the defendant physician in a medical malpractice action is a specialist who is board-certified and the defendant physician was practicing that specialty at the time of the alleged malpractice, the plaintiff‘s expert witness on the standard of practice or care must be a specialist who is board-certified in the same specialty (
5. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
If the defendant physician in a medical malpractice action has a certificate of special qualifications in the specialty that the defendant physician was practicing at the time of the alleged malpractice, the plaintiff‘s expert witness on the standard of practice or care must have the same certificate of special qualifications (
6. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
If the defendant physician specializes in several specialties, the plaintiff‘s expert witness on the standard of practice or care must have specialized in the same specialty as that engaged in by the defendant physician during the course of the alleged malpractice, i.e., the one most relevant specialty; irrelevant specialties do not have to match (
7. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
If the defendant physician in a medical malpractice action is board-certified in several specialties, the plaintiff‘s expert witness on the standard of practice or care must be board-certified in the specialty that the defendant physician was engaged in during the course of the alleged malpractice, i.e., the one most relevant specialty; irrelevant board certificates do not have to match (
If the defendant physician in a medical malpractice action is a specialist, the plaintiff‘s expert witness on the standard of practice or care must have devoted a majority of his or her 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 (
9. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
If the defendant physician in a medical malpractice action specializes in a subspecialty, the plaintiff‘s expert witness on the standard of practice or care must have devoted a majority of his or her professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the subspecialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant subspecialty (
10. WITNESSES - EXPERT WITNESSES - MEDICAL MALPRACTICE.
Although an expert may be qualified to testify under
Nemier, Tolari, Landry, Mazzeo & Johnson, P.C. (by Craig L. Nemier, Michelle E. Mathieu, and Nancy Vayda Dembinski), and Mark R. Granzotto, for Johanna and Steven Woodard.
McKeen & Associates, P.C. (by Brian J. McKeen and Ramona C. Howard), for Shirley Hamilton.
Hebert, Eller & Chandler, PLLC (by Kevin P. Hanbury), and Smith Haughey Rice & Roegge (by Richard C. Kraus), for Joseph R. Custer, and University of Michigan Medical Center.
Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), for Mark F. Kuligowski.
Amici Curiae:
Butzel Long (by Max R. Hoffman, Jr.; M. Brian Cavanaugh; and Debra A. Geroux) and Kirkland & Ellis LLP (by James W. Rankin and Angela B. Frye) for American Board of Pediatrics.
Butzel Long (by Max R. Hoffman, Jr.; M. Brian Cavanaugh; and Debra A. Geroux) and Johnson & Bell, Ltd. (by William K. McVisk), for American Board of Medical Specialties.
Kerr, Russell and Weber, PLC (by Joanne Geha Swanson and Daniel J. Schulte), for Michigan State Medical Society.
Mark R. Bendure for Michigan Trial Lawyers Association.
Wildman, Harrold, Allen & Dixon LLP (by Douglas R. Carlson and Douglas L. Prochnow) for Accreditation Council for Graduate Medical Education.
OPINION OF THE COURT
MARKMAN, J. We granted leave to appeal in these two cases to consider whether plaintiffs’ proposed expert witnesses are qualified under
I. FACTS AND PROCEDURAL HISTORY
A. WOODARD v CUSTER
We summarized the facts underlying this case in our recent decision in Woodard v Custer, 473 Mich 1, 3-5; 702 NW2d 522 (2005) (Woodard I):
Plaintiffs’ fifteen-day-old son was admitted to the Pediatric Intensive Care Unit (PICU) at the University of Michigan Hospital, where he was treated for a respiratory problem. During his stay in the PICU, he was under the care of Dr. Joseph R. Custer, the Director of Pediatric Critical Care Medicine. When the infant was moved to the general hospital ward, physicians in that ward discovered that both of the infant‘s legs were fractured. Plaintiffs sued Dr. Custer and the hospital, alleging that the fractures were the result of negligent medical procedures, namely, the improper placement of an arterial line in the femoral vein of the infant‘s right leg and the improper placement of a venous catheter in the infant‘s left leg.
Defendant physician is board-certified in pediatrics and has certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine. Plaintiffs’ proposed expert witness, who signed plaintiffs’ affidavit of
merit, is board-certified in pediatrics, but does not have any certificates of special qualifications.
Before discovery, the trial court denied defendants’ motion for summary disposition, concluding that plaintiffs’ attorney had a “reasonable belief” under
MCL 600.2912d(1) that plaintiffs’ proposed expert witness was qualified underMCL 600.2169 to testify against the defendant physician, and, thus, that plaintiffs’ affidavit of merit was sufficient. After discovery, the trial court granted defendants’ motion to strike plaintiffs’ expert witness on the basis that he was not actually qualified underMCL 600.2169 to testify against the defendant physician. The trial court dismissed plaintiffs’ claim with prejudice, concluding that plaintiffs could not reach a jury without expert testimony.The Court of Appeals affirmed the trial court‘s ruling that plaintiffs’ proposed expert witness was not qualified under
MCL 600.2169 to testify against the defendant physician (Judge BORRELLO dissented on this issue), but reversed the trial court‘s dismissal on the basis that expert testimony was unnecessary under the doctrine of res ipsa loquitur, i.e., an inference of negligence may be drawn from the fact that the infant was admitted to the PICU with healthy legs and discharged from the PICU with fractured legs (Judge TALBOT dissented on this issue). Unpublished opinion per curiam, issued October 21, 2003 (Docket Nos. 239868-239869). The case was remanded for trial.Defendants sought leave to appeal the Court of Appeals decision that res ipsa loquitur applies and that expert testimony was not necessary. Plaintiffs sought leave to cross-appeal the Court of Appeals decision that their proposed expert witness was not qualified under
MCL 600.2169 to testify against the defendant physician. We heard oral argument on whether to grant the applications or take other peremptory action permitted byMCR 7.302(G)(1) . 471 Mich 890 (2004).
In Woodard I, we addressed defendants’ application for leave to appeal and held that expert testimony is necessary in this case. At the same time, we granted plaintiffs’ cross-application for leave to appeal to ad-
B. HAMILTON v KULIGOWSKI
Plaintiff alleges that the defendant physician failed to properly diagnose and treat the decedent while she exhibited prestroke symptoms. The defendant physician is board certified in general internal medicine and specializes in general internal medicine. Plaintiff‘s proposed expert witness is board certified in general internal medicine and devotes a majority of his professional time to treating infectious diseases, a subspecialty of internal medicine. The trial court granted defendant‘s motion for a directed verdict on the basis that plaintiff‘s expert is not qualified to testify against the defendant physician because plaintiff‘s expert specializes in infectious diseases and did not devote a majority of his professional time to practicing or teaching general internal medicine. The Court of Appeals reversed, concluding that plaintiff‘s expert is qualified to testify against the defendant physician because both plaintiff‘s
II. STANDARD OF REVIEW
These cases both involve the interpretation of
III. ANALYSIS
(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), 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.]4
A. MOST RELEVANT SPECIALTY AND BOARD CERTIFICATION
Although specialties and board certificates must match, not all specialties and board certificates must match. Rather,
Further,
Moreover,
B. SAME SPECIALTY REQUIREMENT
The first requirement of
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.”
Plaintiffs argue that
C. SAME BOARD CERTIFICATE REQUIREMENT
The next requirement of
Plaintiffs argue that the definition of “board certified” found in the Public Health Code should apply here. We respectfully disagree. The Public Health Code,
Moreover, the Legislature has defined “board certified” differently in other statutes. Therefore, even if we thought it appropriate to borrow another statute‘s definition of “board certified,” the definition would vary depending on which statute‘s definition was borrowed. For instance, the Legislature has defined “board certified” in the Insurance Code,
Taber‘s Cyclopedic Medical Dictionary (18th ed) defines “certification” as “a legal document prepared by an official body that indicates a person or institution has met certain standards, or that a person has completed a prescribed course of instruction or training.” Similarly, Gould Medical Dictionary (3d ed) defines “certification” as “[a] statement by an officially recognized and legally constituted body, such as a medical board, that a person or institution has met or complied with certain standards of excellence.” Therefore, we conclude that to be “board certified” within the meaning of
D. SAME PRACTICE/INSTRUCTION REQUIREMENT
E. RESPONSE TO CHIEF JUSTICE TAYLOR‘S CONCURRENCE
Chief Justice TAYLOR‘s concurrence concludes that unless the defendant physician himself concedes that not all of his specialties are relevant, the plaintiff‘s expert must match all of the defendant physician‘s
Not only is the approach of Chief Justice TAYLOR‘S concurrence contrary to the requirements of the statute, it is also an approach that we believe would be unworkable in the real world. Under the concurrence‘s approach, if the defendant physician specializes in five specialties, for example, and refuses to concede that not all of these specialties are relevant to the alleged malpractice, the plaintiff would be required to present five expert witnesses to testify. Not only would this be extraordinarily burdensome for the plaintiff, it would also be extraordinarily burdensome for the trier of fact by infecting the entirety of the trial process with irrelevant, distracting, and confusing arguments.14
The concurrence by Chief Justice TAYLOR accuses the majority of “misunderstand[ing] completely the traditional roles played by the judge and jury in the trial process.” Post at 619. However, we believe that it is the concurrence that misunderstands these roles. Typically, the trial court allows the parties to introduce relevant
Requiring the admission of irrelevant evidence would not only be a waste of time and limited judicial resources, it would also cause enormous confusion and
The concurrence by Chief Justice TAYLOR contends that we are giving the trial court “a power of theory preclusion... heretofore unknown in our jurisprudence.” Post at 618-619. First, whether expert testimony is described as a “theory” or evidence supporting a theory, testimony regarding a specialty that was not being practiced at the time of the alleged malpractice is irrelevant, and, thus, inadmissible. In other words, irrelevant expert testimony does not magically become relevant and admissible simply by calling it a “theory.” To use the concurrence‘s collapsed building hypothetical, the defendant architect would obviously be able to introduce relevant evidence of an earthquake. However,
Second, our holding that relevant expert testimony is admissible and irrelevant expert testimony is inadmissible is hardly a novel holding. As we have explained, it has always been the trial court‘s job to facilitate the introduction of relevant evidence and to preclude the introduction of irrelevant evidence.16 We are aware of no precedent that would require all irrelevant specialties
Further, we note that just because an expert is qualified under
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.
In addition,
(1) In an action for the death of a person or for injury to a person or property, a scientific opinion rendered by an otherwise qualified expert is not admissible unless the court determines that the opinion is reliable and will assist the trier of fact. In making that determination, the court shall examine the opinion and the basis for the opinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert, and shall consider all of the following factors:
(a) Whether the opinion and its basis have been subjected to scientific testing and replication.
(b) Whether the opinion and its basis have been subjected to peer review publication.
(c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.
(d) The known or potential error rate of the opinion and its basis.
(e) The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, “relevant expert community” means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.
(f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.
(g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation.
(2) A novel methodology or form of scientific evidence may be admitted into evidence only if its proponent establishes that it has achieved general scientific acceptance among impartial and disinterested experts in the field.
(3) In an action alleging medical malpractice, the provisions of this section are in addition to, and do not otherwise affect, the criteria for expert testimony provided in section 2169.
Finally, MRE 702 further provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Therefore, even when a proffered expert meets the criteria contained in
Moreover, if a defendant believes that the plaintiff‘s expert is not qualified because he does not specialize in what the defendant believes to be the relevant specialty, the defendant can file a motion to strike the plaintiff‘s expert. If the trial court denies that motion, the defendant can then, of course, appeal that decision. The defendant can either file an interlocutory appeal or he can wait until the jury renders a verdict to file an application for leave to appeal. Either way, the defendant can certainly preserve the issue for appeal by objecting to the plaintiff‘s expert‘s testimony on the
IV. APPLICATION
A. WOODARD V CUSTER
The defendant physician is the director of pediatric critical care medicine at the University of Michigan Hospital, and specializes in pediatric critical care medicine. “Pediatrics” is “[t]he medical specialty concerned with the study and treatment of children in health and disease during development from birth through adolescence.” Stedman‘s Medical Dictionary (26th ed). “Critical” is defined as “[d]enoting a morbid condition in which death is possible.” Id. Pediatric critical care medicine is the branch of medicine concerned with the care of children who are critically ill. Plaintiffs claim that an arterial line was improperly placed in the femoral vein of the infant patient‘s right leg and that a venous catheter was improperly placed in the infant patient‘s left leg while the infant was a patient in the defendant hospital‘s pediatric intensive care unit. There is no question that the infant patient was critically ill when these procedures were performed. For
The defendant physician is board certified in pediatric critical care medicine, and, as explained above, pediatric critical care medicine is the one most relevant specialty. Plaintiffs’ proposed expert witness is not board certified in pediatric critical care medicine. Therefore, plaintiffs’ proposed expert witness does not satisfy the same board certificate requirement of
As explained above, the defendant physician specializes in pediatric critical care medicine and pediatric critical care medicine is the one most relevant specialty. During the year immediately preceding the alleged malpractice, plaintiffs’ proposed expert witness did not practice or teach pediatric critical care medicine.21 Therefore, plaintiffs’ proposed expert witness also does not satisfy the same practice/instruction requirement of
For these reasons, the trial court did not abuse its discretion in concluding that plaintiffs’ proposed expert witness is not qualified to testify on the appropriate standard of practice or care under
B. HAMILTON V KULIGOWSKI
The defendant physician specializes in general internal medicine and was practicing general internal medi-
For this reason, the trial court did not abuse its discretion in concluding that plaintiff‘s proposed expert witness is not qualified to testify regarding the appropriate standard of practice or care under
V. CONCLUSION
If a defendant physician is a specialist, the plaintiff‘s expert witness must have specialized in the same specialty as the defendant physician at the time of the occurrence that is the basis for the action. 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. 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. If the defendant physician has received a certificate of special qualifications, the plaintiff‘s expert witness must have obtained the same certificate of special qualifications. However, under
The trial courts did not abuse their discretion here in concluding that plaintiffs’ proposed expert witnesses were not qualified under
CAVANAGH, WEAVER, and KELLY, JJ., concurred with MARKMAN, J.
CAVANAGH, J. (concurring). I continue to believe that
Nonetheless, I take this opportunity to point out that the difficulties in interpreting and applying
MARKMAN, J. (concurring). I write separately to set forth an additional argument in support of the majority‘s conclusion that only the one most relevant specialty and board certificate must match under
ANALYSIS
As the majority opinion explains, the requirements of
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.
In addition,
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Therefore, although the fact that the defendant physician specializes in multiple specialties and the plaintiff‘s expert witness does not may not be considered under
RESPONSE TO CHIEF JUSTICE TAYLOR‘S CONCURRENCE
Chief Justice TAYLOR‘s concurrence contends that this concurrence is inconsistent with the majority opinion that I have written. This is simply incorrect. I agree completely with everything said in the majority opinion: (a) The majority opinion holds that irrelevant specialties do not have to match. I agree. (b) The majority opinion holds that under
I write separately only to explain that I believe that one of these “other grounds” for disqualification can be the failure of the plaintiff‘s expert to match other relevant specialties. Contrary to Chief Justice TAYLOR‘s concurrence‘s contention, there is nothing in the majority opinion that precludes this conclusion. While the majority opinion holds that under
Chief Justice TAYLOR‘s concurrence asserts that the majority opinion holds that “only one expert may be utilized” and the concurrence allows more. Post at 592.
Chief Justice TAYLOR‘s concurrence contends that because I believe that multiple specialties may be relevant, this must also mean that I share its view that a plaintiff can utilize multiple experts because it would be impossible for any one expert to meet the requirements of
However, Chief Justice TAYLOR‘s concurrence overlooks that I agree with the majority opinion that under
Chief Justice TAYLOR‘s concurrence professes to concur with my concurring opinion. Post at 591. While this
Because Chief Justice TAYLOR‘s concurrence sows confusion regarding where the majority lies, I will attempt to clarify this. In my judgment, there is majority support for the following propositions:
- Irrelevant specialties do not have to match (Justices CAVANAGH, WEAVER, and KELLY, and myself);
- Under
§ 2169(1) , only the one most relevant specialty must match (Justices CAVANAGH, WEAVER, and KELLY, and myself); - An individual expert must meet all of the requirements of
§ 2169(1) in order to testify (Justices CAVANAGH, WEAVER, and KELLY, and myself); - An assemblage of experts cannot join their expertise to collectively satisfy the requirements of
§ 2169(1) (Justices CAVANAGH, WEAVER, and KELLY, and myself); - That an expert is qualified under
§ 2169(1) does not mean that the trial court cannot disqualify the expert on other grounds (Chief Justice TAYLOR and Justices CAVANAGH, WEAVER, KELLY, CORRIGAN, and YOUNG, and myself); Other relevant specialties may have to match under § 2169(2) andMRE 702 (Chief Justice TAYLOR and Justices CORRIGAN and YOUNG, and myself).
APPENDIX
In light of the growing complexity of medical malpractice statutes in Michigan and the resultant case law, the following is designed as a brief summary of recent Michigan Supreme Court decisions in this area.
- If the claim pertains to an action that occurred within the course of a professional medical relationship and the claim raises questions of medical judgment beyond the realm of common knowledge and experience, the claim sounds in medical malpractice, not ordinary negligence. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411; 684 NW2d 864 (2004).
- The period of limitations is two years for an action charging malpractice.
MCL 600.5805(6) . - A person cannot commence a medical malpractice action without first giving the defendant written notice.
MCL 600.2912b(1) . - No suit can be commenced for 182 days after written notice is given.
MCL 600.2912b(1) . - The 182-day no-suit period can be shortened to 154 days if the defendant does not provide a written response within 154 days.
MCL 600.2912b(8) . The 182-day no-suit period can be shortened to 91 days under certain circumstances.MCL 600.2912b(3) . Finally, the 182-day no-suit period can be shortened to some other number of days if the defendant informs the plaintiff in writing that the defendant does not intend to settle the claim.MCL 600.2912b(9) . - If the notice of intent is given 182 days or less before the end of the two-year limitations period, this
tolls the two-year limitations period for 182 days. MCL 600.5856(c) ; Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000). - A notice of intent must include: (a) the factual basis for the claim; (b) the applicable standard of practice or care alleged by the claimant; (c) the manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility; (d) the alleged action that should have been taken to achieve compliance with the alleged standard of practice or care; (e) the manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice; and (f) the names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.
MCL 600.2912b(4) ; Roberts v Mecosta Gen Hosp (After Remand), 470 Mich 679; 684 NW2d 711 (2004). - A notice of intent that is not in full compliance with
MCL 600.2912b(4) does not toll the limitations period.MCL 600.5856(c) ; Roberts, supra. - The tacking or addition of successive 182-day periods is prohibited.
MCL 600.2912b(6) . - A second notice of intent can toll the period of limitations if the first notice of intent did not toll the period of limitations.
MCL 600.2912b(6) ; Mayberry v Gen Orthopedics, PC, 474 Mich 1; 704 NW2d 69 (2005). - A complaint alleging medical malpractice that is filed before the expiration of the notice period provided by
MCL 600.2912b does not toll the period of limitations.MCL 600.2912b(1) ; Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005). - If a person dies before the period of limitations has run or within 30 days after the period of limitations
has run, the personal representative of the decedent‘s estate can file a wrongful death action up to two years after letters of authority are issued, as long as the action is brought within three years after the period of limitations has run. MCL 600.5852 . - A successor personal representative has two years after appointment to file an action on behalf of the estate as long as the action is filed within three years after the period of limitations has run.
MCL 600.5852 ; Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003). - A notice of intent does not toll the additional period permitted for filing wrongful death actions under the wrongful death saving provision,
MCL 600.5852 .MCL 600.5856(c) ; Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). - A plaintiff is required to file with the complaint an affidavit of merit signed by an expert who the plaintiff‘s attorney reasonably believes meets the requirements of
MCL 600.2169 .MCL 600.2912d(1) ; Grossman v Brown, 470 Mich 593; 685 NW2d 198 (2004). - A complaint alleging medical malpractice that is not accompanied by the statutorily required affidavit of merit does not toll the limitations period.
MCL 600.2912d(1) ; Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000). - If a defendant physician is a specialist, the plaintiff‘s expert witness must have specialized in the same specialty as the defendant physician at the time of the occurrence that is the basis for the action.
MCL 600.2169(1)(a) ; Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006). 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. MCL 600.2169(1)(a) ; Woodard II, supra.- If the defendant physician is a specialist who is board certified, the plaintiff‘s expert witness must be a specialist who is board certified in that specialty.
MCL 600.2169(1)(a) ; Halloran v Bhan, 470 Mich 572; 683 NW2d 129 (2004). - If a defendant physician has received a certificate of special qualifications, the plaintiff‘s expert witness must have received the same certificate of special qualifications.
MCL 600.2169(1)(a) ; Woodard II. - Where a defendant physician specializes in several specialties, the plaintiff‘s expert witness must have specialized in the same specialty as that engaged in by the defendant physician during the course of the alleged malpractice, i.e., the one most relevant specialty.
MCL 600.2169(1)(a) ; Woodard II. - Where a defendant physician is board certified in several specialties, the plaintiff‘s expert witness must be board certified in the specialty that the defendant physician was engaged in during the course of the alleged malpractice, i.e., the one most relevant specialty.
MCL 600.2169(1)(a) ; Woodard II. - If the defendant physician is a specialist, 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.
MCL 600.2169(1)(b) ; Woodard II. If the defendant physician specializes in a subspecialty, 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 subspecialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant subspecialty. MCL 600.2169(1)(b) ; Woodard II.- Because an expert is qualified under
MCL 600.2169(1) does not mean that the trial court cannot disqualify the expert on other grounds.MCL 600.2169(2) ;§ 2169(3) ;MCL 600.2955 ;MRE 702 ; Woodard II.
TAYLOR, C.J. (concurring in the result only). We concur in that portion of Justice MARKMAN‘s concurrence stating that a defendant physician‘s multiple areas of specialty “may be considered under [
Furthermore, we agree with Justice MARKMAN‘s concurring opinion that the practice and teaching requirements in
Thus, we believe that Justice MARKMAN‘S “concurrence” more closely resembles this opinion than the lead opinion. We therefore concur with his concurrence insofar as it concludes that there can be more than one specialty germane to establishing the appropriate standard of care, and also insofar as it implicitly stands for the conclusion that multiple experts may be utilized in establishing a breach of the appropriate standard of care.1 As such, there are four votes for these two conclusions of law, just as the lead opinion purports to carry four votes for the conclusions that there can be only one relevant specialty and that only one expert may be utilized.2 However, in this peculiar, perhaps
INTRODUCTION
In these medical malpractice cases, we granted leave to appeal to consider whether plaintiffs’ proposed expert witnesses qualify under
Further evidence that Justice MARKMAN‘S concurrence is not in harmony with the lead opinion is that he had to file it because none of the other justices signing his lead opinion agree with his position.
I. FACTS AND PROCEEDINGS BELOW
A. WOODARD v CUSTER
We summarized the facts underlying this case in our recent decision in Woodard I:
Plaintiffs’ fifteen-day-old son was admitted to the Pediatric Intensive Care Unit (PICU) at the University of Michigan Hospital, where he was treated for a respiratory problem. During his stay in the PICU, he was under the care of Dr. Joseph R. Custer, the Director of Pediatric Critical Care Medicine. When the infant was moved to the general hospital ward, physicians in that ward discovered that both of the infant‘s legs were fractured. Plaintiffs sued Dr. Custer and the hospital, alleging that the fractures were the result of negligent medical procedures, namely, the improper placement of an arterial line in the femoral vein of the infant‘s right leg and the improper placement of a venous catheter in the infant‘s left leg.
Defendant physician is board-certified in pediatrics and has certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine. Plaintiffs’
Before discovery, the trial court denied defendants’ motion for summary disposition, concluding that plaintiffs’ attorney had a “reasonable belief” under
The Court of Appeals affirmed the trial court‘s ruling that plaintiffs’ proposed expert witness was not qualified under
Defendants sought leave to appeal the Court of Appeals decision that res ipsa loquitur applies and that expert testimony was not necessary. Plaintiffs sought leave to cross-appeal the Court of Appeals decision that their proposed expert witness was not qualified under
After hearing oral argument, we issued our opinion in Woodard I, which concerned only defendants’ application for leave to appeal. In that opinion, we reversed the Court of Appeals decision that res ipsa loquitur applied to relieve plaintiffs of the need to present expert testimony.7 Because our decision in Woodard I required plaintiffs to produce expert testimony to support their claims, we simultaneously granted plaintiffs’ cross-application for leave to appeal the Court of Appeals determination that their proposed expert was not qualified under
B. HAMILTON v KULIGOWSKI
Between 1992 and 1998, defendant Dr. Mark F. Kuligowski treated Rosalie Ackley for hypertension, diabetes, weight control, and a thyroid ailment. On March 19, 1998, Ackley, who was in her seventies, complained of numbness and weakness in her left arm. She further informed Kuligowski that she had been diagnosed with a blockage in her neck several years earlier. After detecting abnormal sounds in Ackley‘s carotid artery during a physical examination, Kuligowski suspected that she had suffered a minor stroke and possibly suffered from bilateral carotid artery disease. Although he ordered a bilateral carotid Doppler echocardiography,9 Kuligowski advised Ackley that
Plaintiff, Ackley‘s daughter, filed the instant medical malpractice action on behalf of Ackley‘s estate alleging that Kuligowski was negligent in failing to recognize Ackley‘s prestroke symptoms and render appropriate treatment. Kuligowski is board-certified in internal medicine, and primarily sees geriatric patients. In support of her claims, plaintiff called as a witness a proposed expert who, like Kuligowski, is board-certified in internal medicine. Plaintiff‘s proposed expert spends half of his professional time in his office treating internal medicine and infectious disease patients and the other half in a hospital treating primarily infectious disease patients.
ating valve function).” Merriam Webster‘s Medline Plus, <http://www2.merrriam-webster.com/cgi-bin/mwmednlm> (accessed January 9, 2006).
Kuligowski moved to strike plaintiff‘s proposed expert, arguing that he was not qualified under
The Court of Appeals reversed the trial court‘s ruling and held that plaintiff‘s proposed expert was qualified
We granted Kuligowski‘s application for leave to appeal.11
II. STANDARD OF REVIEW
These cases involve the interpretation of
III. ANALYSIS
Before 1986, the question whether a plaintiff‘s proposed expert was qualified to testify with regard to the appropriate standard of care in a medical malpractice
However, as we discussed in McDougall v Schanz,17 our Legislature ultimately deemed
(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), 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.22
(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.
Accordingly, these provisions set forth a number of specific, minimum criteria that a proposed expert must satisfy in order to testify regarding the appropriate standard of care in a medical malpractice case.23 The first of these, of course, is that the proposed expert must be a licensed health professional.24 The statute then goes on to set forth several additional requirements aimed at ensuring that the proposed expert possesses the same professional credentials as the defendant
care that a specialist should have followed,
Moreover, in addition to requiring that the proposed expert possess the same specialty qualifications as the defendant doctor, the statute, unlike
Finally, the statute makes clear that the above requirements represent only the bare minimum that a proposed expert must meet in order to testify regarding the standard of care. It does this by explicitly granting a trial court the discretion to disqualify a proposed expert for other, unenumerated reasons;27 for example, if the trial court determines that the proposed expert‘s testimony is unreliable under
Applying the first of these principles, we first note that some indication regarding the meaning of the term
specifically provides that the provisions of
Further indication of what the Legislature intended when it used the term “specialist” can be gleaned from dictionary definitions. Because
We note at this point that many areas of specialization contain narrower, more limited areas within them. For instance, a physician who specializes in pediatrics
We reject this assertion. The plain language of
Instead, we turn to the generally accepted technical meaning of the term “specialty,” which encompasses narrower, more focused areas of medical practice, qualifying them as specialties in and of themselves.39 Thus, because the broader, more generalized areas and the narrower, more limited areas within them both constitute specialties under the accepted technical meaning of the word “specialty,” a plaintiff‘s proposed expert must match the defendant doctor‘s qualifications at both levels.40
Once it is determined that a defendant doctor qualifies as a specialist in a given area, the next inquiry is whether he or she also qualifies as a board-certified specialist in that area. Before defining what it means to be board-certified, however, one point bears emphasis. That is that the statute does not require the matching of board certifications in and of themselves. Rather, it only makes board certifications germane if the defendant doctor is a “specialist who is board certified.” Accordingly, the fact that a defendant doctor has obtained a board certification in a given area is irrelevant to the issue of credential matching unless the defendant doctor first qualifies as a specialist in that area.
Like with the term “specialty,” the Legislature did not define the phrase “board certified” in
We decline to impute the definition of “board certified” from
We thus fall back on the general rule set forth in
C. WHETHER ALL SPECIALTIES AND BOARD CERTIFICATIONS MUST BE MATCHED
Because many defendant doctors specialize in more than one area, or have become board-certified special-
The primary flaw with the Court of Appeals holding in Tate is that it bases its conclusion regarding what expert testimony is required on the language of
- Assume a plaintiff sues a doctor who has five specialties, but asserts in the complaint and accompanying affidavit of merit that the defendant doctor should have met the standard of care coinciding with only one of the defendant doctor‘s specialties, and that the defendant doctor‘s other four specialties are irrelevant to establishing and understanding that standard of care. Further assume that, in the answer, the defendant doctor admits that the plaintiff has asserted the appropriate standard of care, further admits that the challenged actions did not conform to it, and only contests the amount of damages.53 In this situation, the plaintiff need not present expert testimony regarding the standard of care at trial. The plaintiff need only offer evidence regarding damages.
MCL 600.2169 is thus inapplicable. The result would be the same in a case where a plaintiff is able to successfully avail himself or herself of the doctrine of res ipsa loquitur. - Assume again that the plaintiff sues a doctor who has five specialties, and again asserts in the complaint and accompanying affidavit that the defendant doctor should have met the standard of care coinciding with only one of the defendant doctor‘s specialties, and that the defendant doctor‘s other four specialties are irrelevant to establishing and understanding that standard of care. This time, the defendant doctor admits in the
answer and accompanying affidavit that the plaintiff has asserted the correct standard of care, but asserts that the challenged actions conformed to it. In this case, MCL 600.2169 applies because the plaintiff will need to introduce “expert testimony on the appropriate standard of practice or care” in order to prove that the defendant doctor‘s actions did not conform to it. However, because the defendant doctor has conceded that only one of the five specialties is germane to the appropriate standard of care, the plaintiff‘s proposed expert only has to comply with the mandates ofMCL 600.2169 with regard to that one specialty. - Assume again that the plaintiff sues a doctor who has five specialties, and again asserts in the complaint and accompanying affidavit that the defendant doctor should have met the standard of care coinciding with only one of the defendant doctor‘s specialties, and that the defendant doctor‘s other four specialties are irrelevant to establishing and understanding that standard of care. Assume this time that the defendant doctor, instead of admitting that the plaintiff has asserted the appropriate standard of care, asserts that the standard of care coinciding with one of the other specialties is the one the defendant should have met. In this situation, unless the plaintiff agrees with the defendant, the plaintiff will need to present expert testimony concerning the standards of care applicable to two of the defendant doctor‘s five specialties—the one that the plaintiff asserts is applicable and the one that the defendant asserts is applicable. No testimony regarding the standard of care for the defendant doctor‘s other three specialties will be needed because the defendant has conceded that they do not apply.
D. RESPONSE TO THE JUSTICE MARKMAN LEAD OPINION SIGNED BY JUSTICES CAVANAGH, KELLY, AND WEAVER, WHICH WE CONSIDER A DISSENT
The lead opinion‘s interpretation of
The biggest problem with the lead opinion‘s interpretation of the statute is that it misunderstands completely the traditional roles played by the judge and jury in the trial process. Juries find facts so as to evaluate the theories of the parties. Judges, among other things, keep out evidence that is irrelevant to the proving of the theories. If the parties cannot produce evidence sufficient for a reasonable juror to decide the case on the basis of a certain theory, the jury is precluded by the judge from considering that theory. This preclusion however cannot come before proofs are presented or it is shown that there are no such facts by a properly pleaded motion for summary disposition or similar motion. A simple example to demonstrate this, albeit from another context, may be helpful. Let us assume that sometime after construction is completed a building collapses. In such a case, if the owner sues the architect on the theory of malpractice, the architect could defend by saying he or she was not the cause because he or she was not negligent but that the real cause was perhaps the negligence of the construction engineers, defectively manufactured materials, or even that there was an act of God, say, an earthquake. These alternative explanations, or theories, of how the building collapsed of course would either be factually supportable or not. If there was evidence to support them, they would be submitted to the jury for sorting out. This opportunity to support a party‘s theory with
The problem the hypothetical points out is the problem the lead opinion will create in medical malpractice cases also. For instance, if a doctor who specializes in cardiovascular surgery and nephrology57 negligently inserts a pacemaker, the trial court should not be able to preclude either the plaintiff or the defendant from arguing that the defendant‘s specialty in nephrology was or was not implicated by the procedure as long as the parties can produce reliable58 expert testimony to
By allowing such theory preclusion, the lead opinion‘s analysis allows in a medical malpractice case the trial court, rather than the jury, to determine the factual issue of which specialty or specialties the defendant doctor was practicing at the time of the alleged malpractice. Ante at 558-560. This plainly disrupts the historical dynamic of our trial process, whereby factual determinations are to be made by the jury.
The historical division of functions between the court and the jury needs no citation of authority. It is the province of the jury to determine questions of fact and assess the credibility of witnesses.59
Not only will the lead opinion‘s analysis take factual determinations out of the province of the jury, it will also foreclose the jury from assessing credibility and weighing evidence. A good example on the credibility issue can be seen in Woodard. Defendant Custer has argued throughout the proceedings in this case that the procedures he performed implicate the specialty of pediatric critical care. It is the case, however, that plaintiff‘s proffered expert, Anthony Casamassima,
Even more troubling at a less theoretical plane than the theory-preclusion role that the lead opinion gives to the trial court is how this will be practically implemented. There are puzzling questions to which the lead opinion provides no answers. For example, consider the following difficulties. In the case where there are mul-
At another level, constitutional rather than merely practical, the lead opinion‘s theory-preclusion approach
But the lead opinion‘s theory-preclusion analysis prevents a defendant doctor from arguing, and introducing evidence to prove, that more than one of his or her specialty areas is germane to establishing the appropriate standard of care. It also precludes the doctor from arguing that the plaintiff‘s proposed expert does not know what standard of care the defendant doctor should have followed because the proposed expert does not possess the same specialties and has not spent the requisite time practicing or teaching those specialties. Thus, the lead opinion‘s interpretation of the statute allows the trial court to prevent the defendant from introducing evidence, making arguments, and cross-examining witnesses, i.e., presenting a defense.
Further, the lead opinion‘s theory-preclusion analysis will also adversely affect plaintiffs. That is, the justices in the lead opinion appear to believe that it will always be defendants who assert that multiple specialties are germane to establishing the appropriate standard of care, perhaps as some sort of gaming tactic. See Ante at 568. We, however, do not believe that this will always be the case. For example, if a defendant doctor is
All of these problems with the lead opinion‘s analysis stem from the fact that the justices in the lead opinion repeat the same error made by the Court of Appeals in Tate. That is, they rely on
In misinterpreting
We also disagree with the lead opinion‘s reliance on the use of terms such as “the same specialty,” “that specialty,” “a person,” and “the person” in
The sum of all of this is that the lead opinion‘s interpretation of
We find Justice MARKMAN‘s interpretation of the statute perplexing. He purports to concur in the lead opinion‘s conclusion that
IV. APPLICATION
A. WOODARD v CUSTER
It is undisputed that defendant Custer holds himself out as limiting his practice primarily to, and having advanced training in, the fields of pediatric critical care and neonatal-perinatal medicine. He therefore qualifies as a specialist in both of those areas.73 Further, under the definition we have set forth above, Custer qualifies as a board-certified specialist in both of these areas. Plaintiffs’ proposed expert, however, only qualifies as a board-certified expert in general pediatric care.
Throughout the proceedings in this case, Custer asserted that the specialty areas of pediatric critical care and neonatal-perinatal medicine were germane to establishing and understanding the standard of care that he should have followed when treating plaintiffs’ son in the Pediatric Intensive Care Unit. Plaintiffs, however, failed to present experts qualified to testify
B. HAMILTON v KULIGOWSKI
Defendant Kuligowski holds himself out as limiting his practice primarily to, and having advanced training in, general internal medicine. He therefore qualifies as a specialist in that field.74 Further, because it is undisputed that he has obtained board certification in general internal medicine, he qualifies as a board-certified specialist in that field.
Although he does not hold himself out as limiting his practice primarily to that field, plaintiff‘s proposed expert holds himself out as having advanced training or knowledge in general internal medicine. Further, he is board-certified in that field and therefore qualifies as a board-certified specialist in general internal medicine. Thus, were he only required to meet the requirements of
Plaintiff‘s difficulties, however, stem from the fact that her proposed expert also qualifies as a specialist in the field of infectious diseases, and admittedly spent a majority of his professional time during the year preceding the alleged malpractice in the active clinical practice of infectious diseases rather than general internal medicine. Thus, plaintiff‘s proposed expert fails to meet the requirements of
V. CONCLUSION
The trial courts in both these cases properly held that plaintiffs’ proposed experts were not qualified under
In Woodard, a majority of the Court of Appeals properly affirmed the trial court‘s determination that plaintiffs’ proposed expert was not qualified. Thus, because plaintiffs failed to present expert testimony sufficient to support their claims, and because we have already held that the doctrine of res ipsa loquitur does not relieve plaintiffs of this burden,75 we affirm the part of the judgment of the Court of Appeals that held that plaintiffs’ expert was not qualified and remand the case
In Hamilton, the Court of Appeals improperly reversed the judgment of the circuit court and held that plaintiff‘s proposed expert was qualified under
CORRIGAN and YOUNG, JJ., concurred with TAYLOR, C.J.
Notes
(1) what are the appropriate definitions of the terms “specialty” and “board certified” as used in
(1) the proper construction of the words “specialty” and “that specialty” in
A recent amendment ofIf the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.
As stated in the staff comments that follow(1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
“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. There is a perception that these so-called expert witnesses will testify to whatever someone pays them to testify about.
“This proposal is designed to make sure that expert witnesses actually practice or teach medicine. In other words, to make sure that experts will have firsthand practical expertise in the subject matter about which they are testifying. 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 the same speciality. This will protect the integrity of our judicial system by requiring real experts instead of ‘hired guns.‘”
All words and phrases shall be construed and understood according to the common and approved usage of the language; but technical words and phrases, and such as may have acquired a peculiar and appropriate meaning in the law, shall be construed and understood according to such peculiar and appropriate meaning.
[T]he plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff‘s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff‘s attorney reasonably believes meets the requirements for an expert witness under section 2169.
See also Mosby‘s Medical Dictionary (6th ed), which defines “specialist” as “a health care professional who practices a specialty.” It then defines “specialty” as[a] dentist, nurse, physician, or other health professional who has advanced education and training in one clinical area of practice such as internal medicine, pediatrics, surgery, ophthalmology, neurology, maternal and child health, or cardiology. In most specialized areas of health care, there are organizations offering qualifying examinations. When an individual meets all of the criteria of such a board, he or she is called “board certified” in that area.
a branch of medicine or nursing in which the professional is specially qualified to practice by having attended an advanced program of study, by having passed an examination given by an organization of the members of the specialty, or by having gained experience through extensive practice in the specialty.
The justices in the lead opinion state that they find it “befuddling” that we have adopted the definition of “board certified” from Rosenblum without further explanation. However, we have explained, we believe, that we adopted the definition from Rosenblum because it is consistent with the technical, medical definition of the term as required by
The lead opinion responds to this by asserting that we are “confusing relevancy and reliability.” Ante at 568 n 14. That is not the case. What we are stating is that a party must present reliable expert testimony to prove that a specialty area is germane to establishing the standard of care. The lead opinion dismisses this by asking why a party should have to introduce evidence concerning an irrelevant specialty. We would ask in response how exactly it is that a specialty area can be dismissed as irrelevant when reliable expert testimony has been presented that it was implicated by the procedure performed and, thus, is germane to understanding the standard of care the defendant doctor should have exercised.
Q. When is the last time you inserted a central venous line in a patient as old as Austin Woodard?
A. During my residency.
Q. Same question with regard to the arterial line.
A. During my residency.