i
In this mеdical malpractice action, the dispositive question is whether, under MCL 600.2169, an obstetrician/gynecologist may testify about the standard of care applicable to a nurse midwife. Flaintiff claims that, during his mother’s labor, the negligent actions of defendant’s nurse midwife caused him mental retardation and other impairmеnts. We hold that the trial court correctly granted summary disposition to defendant because plaintiff failed to establish a genuine issue of material fact regarding the standard of care applicable to a nurse midwife.
Defendant contends that, regardless of whether plaintiffs experts could establish that defendant’s midwife
caused
his injuries, as obstetricians/gynecologists, the experts were not qualified to offer testimony regarding the standard of practice of defendant’s nurse midwife. Accordingly, defendant maintains that the trial court correctly granted summary disposition to defendant because plaintiff failed to establish a genuine issue of material fact by admissible evidence.
1
In its cross-appeal, defendant says that the statutorily required affidavit of merit was insufficient because an obstetrician/gynecologist may
H. AFFIDAVIT OF MERIT: SECTION 2912d(l)
A medical malpractice claim may be brought against any licensed health care professional, which includes an individual licensed or registered under article 15 of the Public Health Code.
2
MCL 600.2912; MCL 600.5838a(1);
Bryant v Oakpointe Villa Nursing Ctr, Inc,
Defendant argues that plaintiffs affidavit of merit was defectivе and, thus, plaintiff failed to successfully initiate a medical malpractice claim. Section 2912d(1), MCL 600.2912d(1), provides that a plaintiff initiating a medical malpractice action “shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets thе requirements for an expert witness under section 2169.” See also MCR 2.112(L);
Geralds v Munson Healthcare,
Section 2169(1), MCL 600.2169(1), governs expert witnesses offering testimony regarding the applicable standard of care.
Halloran v Bhan,
(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 рarty 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 оffered 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.
(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health professional sсhool or accredited residency or clinical research program in the same health profession in which the parly against whom or on whose behalf the testimony is offered is licensed. [MCL 600.2169(1) (emphasis added); see Decker v Flood,248 Mich App 75 , 81-82;638 NW2d 163 (2001).]
Our courts have interpreted the term “party,” against whom testimony is offered, to encompass a hospital party that has been sued under a vicarious liability theory and its agents. See
Nippa v Botsford Gen Hosp (On Remand),
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature.
Halloran, supra,
p 577. The first step is to examine the plain language of the statute itself.
In re MCI Telecom Complaint,
The parties agree that nurse midwives do not practice medicine. Accordingly, by the plain meaning of the terms of the statute, we find that § 2169(l)(a) and (c)
does not apply because a nurse midwife is neither a specialist nor a general practitioner.
4
Section 2169(1)(b), however,
The plain language of § 2912d indicates that an affidavit of merit is required in every medical malprac
tice action, including those initiated against nonphysicians. MCL 600.2912d(1). Pursuant to this section, the plaintiffs attorney must “reasonably believed” that the person signing the affidavit of merit “meets the requirements for an expert witness under section 2169.”
Id.;
see
Grossman v Brown,
Plaintiffs complaint alleged medical malpractice against defendant for the actions of its “doctors, nurses, a nursing midwife, and residents.” Plaintiff attached an affidavit of merit executed by Dr. Ronald G. Zack, an obstetrician/gynecologist. The affidavit of merit focused on the standard of сare breached by doctors or physicians and staff, and did not offer an opinion regarding the specific standard of care applicable to or breached by the nurse midwife. As discovery progressed, it became clear that plaintiffs claim of medical negligence focused primarily on thе actions of defendant’s nurse midwife. Although an obstetrician/gynecologist does not devote a majority of his or her time to the same health profession as a nurse midwife pursuant to § 2169(l)(b), plaintiffs attorney’s belief that Dr. Zack would fulfill the requirements of § 2169 was at least reasonable at the time the complaint was filed bеcause it was not until discovery was conducted that plaintiff narrowed his malpractice claim to the actions of the nurse midwife. MCL 600.2912d(l). At the time of plaintiffs complaint, plaintiffs claims focused on the actions of physicians and staff who allegedly failed, in part, to timely diagnose and treat fetal distress and to
III. EXPERT TESTIMONY
With respeсt to the dispositive issue, we agree with defendant and the trial court that plaintiff failed to establish a genuine issue of material fact in response to defendant’s summary disposition motion because the testimony of plaintiffs experts, Dr. Zack and Dr. Michael Berke, was not admissible evidence regarding the standard оf care applicable to a nurse midwife.
For an expert to be qualified to testify regarding the standard of care, the expert must be qualified under § 2169(1). Halloran, supra, p 578 n 6. As previously discussed, § 2169(1)(b) applies here because plaintiffs claims are directed against defendant’s nonphysician nurse midwife. Under this section, to qualify to оffer testimony regarding the appropriate standard of practice or care of the nurse midwife, plaintiffs experts must practice in “the same health profession” as the nurse midwife. MCL 600.2169(1)(b)(i). Nurse midwives are licensed to practice under MCL 333.17211 and certified under MCL 333.17210. Dr. Zack and Dr. Berke, however, are obstetricians/gynecologists who are physicians under the Public Health Code definition, MCL 333.17001(1)(c). These experts, therefore, do not qualify to testify regarding the standard of care applicable to defendant’s nurse midwife.
This conclusion is bolstered by the Legislature’s decision to change § 2169 for cases filed on or after April 1, 1994. The fоrmer version of the statute applied only to physician or dental specialists and required that witnesses who testified regarding the standard of care or practice must have specialized in the same specialty or a related area of medicine, surgery, or dentistry and must have devoted a substantial portion of professional or instructional time to that practice. The amended statute at issue here applies to all licensed health professionals and requires that the expert who testifies about the standard of care or practice teach in or devote a majority of time tо the active clinical practice of “the same health profession ...MCL 600.2169(1)(b). Thus, the plain language of the statute and the legislative intent in amending the statute ensures that, with respect to all licensed health professionals, a witness testifying about the standard of care or practice must practice or teach in the same heаlth profession. Though it may appear reasonable that a physician with substantial educational and professional credentials should be able to testify about the standard of care of a nurse who works in a closely related field, we are constrained by the plain words of the statute that the expert witness must practice in the “same health profession.” Consequently, we conclude that because nurse midwives are separately licensed professionals who practice nursing with specialty certification in the practice of nurse midwifery, obstetricians/gynecologists may not testify about their stаndard of practice or care.
On a motion for summary disposition, the existence of a disputed fact may only be established by admissible evidence. MCR 2.116(G)(6);
Veenstra v Washtenaw Country Club,
Affirmed.
Notes
On appeal, this Court reviews de novo a trial court’s deсision on a motion for summary disposition.
Dressel v Ameribank,
MCL 333.16101 et seq.
A medical malpractice action may be commenced against nonphysicians such as nurses, medical technologists, physical therapists, and optometrists. MCL 600.2912; MCL 600.5838a(l);
Cox v Flint Bd of Hosp Managers,
The statute does not define the terms “specialist” and “general practitioner.” Cox, supra, p 18. We give undefined statutory terms their plain and ordinary meanings and consult dictionary definitions when appropriate. Halloran, supra, p 578. A “general practitioner” is defined as “a medical practitioner whose practice is not limited to any specific branch of medicine.” Random House Webster’s College Dictionary (1995). A “specialist” is defined as “a medical practitioner who deals only with a particular class of diseases, conditions, patients, etc.” Id. See Decker, supra, p 83. “Physician” has been defined by statute, which indicates that a physician is “an individual licensed under this article to engage in the practiсe of medicine.” MCL 333.17001(1)(c); see Cox, supra, p 19. The “practice of medicine” has also been defined by statute as “the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment, defect, complaint, or other physical or mental condition, by attendance, advice, device, diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out as able to do, any of these acts.” MCL 333.17001(1)(d); see Cox, supra, pp 19-20.
Nurse midwives are registered professional nurses with specialty certification in the practice of nurse midwifery issued by the Board of Nursing. MCL 333.17210; MCL 333.2701(b). By the plain and ordinary meanings of “general practitioner,” “specialist,” and “physician,” it is clear that these professionals practice medicine. Registered professional nurses, on the other hand, practice nursing. See Cox, supra, p 19. Therefore, § 2169(1)(a) and (c) does not apply to nurse midwives.
Because this issue is dispositive, we need not decide whether plaintiff proved the causation element of her claim. And, though arguably we need not decide the affidavit of merit issue raised in defendant’s cross-appeal, we do so because, had defendant been correct on this issue, this case would not have proceeded to the stage that involves the dispositive issue of expert trial testimony.