ROCK v. CROCKER
Docket No. 312885
Court of Appeals of Michigan
Submitted September 3, 2014. Decided November 18, 2014.
308 Mich. App. 155 | 863 N.W.2d 361
Leave to appeal granted 497 Mich 1034.
Dustin Rock brought a medical malpractice action in the Kent Circuit Court, against K. Thomas Crocker, D.O., and K. Thomas Crocker, D.O., PC (hereafter collectively referred to as “defendant“), alleging that he suffered injury resulting from violations of the appropriate standard of care by defendant during a surgical procedure and the postsurgical care of plaintiff. The court, James Robert Redford, J., ruled on motions in limine, holding that one of plaintiff‘s expert witnesses, Dr. David Viviano, could not testify regarding the standard of care applicable to the treatment provided by defendant, precluding any reference to plaintiff‘s receipt of no-fault motor vehicle insurance benefits, and denying defendant‘s motion to strike certain allegations of malpractice. The Court of Appeals granted plaintiff‘s interlocutory application for leave to appeal and defendant cross-appealed.
The Court of Appeals held:
1. The trial court erred by holding that Viviano could not offer expert standard-of-care testimony at trial on the basis that, although he was a board-certified specialist at the time of the alleged malpractice, his board certification had lapsed on its expiration date and it was likely that he would not be board-certified at the time of trial. The first sentence of
2. Plaintiff may not seek damages for two alleged particular breaches of the standard of care because plaintiff presented no evidence that the particular breaches caused him injury. The trial court, insofar as it did not so rule, erred. The trial court did not err by stating that evidence of the course of defendant‘s violations of the standard of care, even if the violations did not directly cause plaintiff‘s eventual injury, may be relevant evidence. The evidentiary ruling granting defendant‘s motion to strike those allegations is reversed. On remand, the trial court must exercise its discretion to determine, under MRE 403, whether the probative value of the evidence is outweighed by its prejudicial effect and, if it finds the evidence admissible, what limiting jury instruction must be given.
3. The trial court did not abuse its discretion when it determined that, although there was evidence to support defendant‘s theory that plaintiff was malingering, evidence of collateral source payments, in the form of plaintiff‘s receipt of no-fault benefits, was not admissible because the probative value of the evidence was substantially outweighed by the danger of unfair prejudice. The part of the trial court‘s order that granted plaintiff‘s motion to exclude the evidence is affirmed.
Affirmed in part, reversed in part, and remanded.
MEDICAL MALPRACTICE — EXPERT WITNESSES — SPECIALTIES — BOARD CERTIFICATIONS.
The first sentence of
Aardema Whitelaw, PLLC (by Brian W. Whitelaw), and Collins Einhorn Farrell PC (by Noreen L. Slank and Geoffrey M. Brown), for K. Thomas Crocker, D.O., and K. Thomas Crocker, D.O., P.C.
Before: SHAPIRO, P.J., and WHITBECK and STEPHENS, JJ.
SHAPIRO, P.J. Defendant, K. Thomas Crocker, D.O.,1 performed orthopedic surgery on plaintiff‘s ankle on September 28, 2008, and for some time thereafter provided plaintiff postsurgical care. Plaintiff later filed the instant medical malpractice action, alleging that he suffered injury resulting from violations of the standard of care by defendant during surgery and during postsurgical care. Shortly before the scheduled trial date, the trial court ruled on several motions in limine. We granted plaintiff‘s interlocutory application for leave to appeal one of these pretrial rulings.2 Defendant then cross-appealed the trial court‘s rulings on two other motions in limine.
Plaintiff appeals the trial court‘s ruling that one of plaintiff‘s proffered expert witnesses may not testify regarding the standard of care applicable to the treatment provided by defendant to plaintiff. Defendant cross-appeals two other rulings: the trial court‘s grant of plaintiff‘s motion to preclude any reference to plaintiff‘s receipt of no-fault motor vehicle insurance benefits and the trial court‘s denial of defendant‘s motion to “strike allegations of malpractice.” In plaintiff‘s appeal, we reverse on the basis of the text of the controlling statute. In defendant‘s cross-appeal, we affirm the trial court‘s ruling regarding plaintiff‘s receipt of no-fault benefits, but reverse, in part, the trial court‘s denial of defendant‘s request to strike allegations.
I. PLAINTIFF‘S APPEAL
In a medical malpractice case, a plaintiff must establish that the medical care provided by the defendant fell below the standard of medical care applicable at the time the care was provided. This is set forth in
By way of example, if a doctor is sued for malpractice alleged to have occurred on September 1, 2010, the question of whether the doctor was professionally negligent turns on whether he or she complied with the standard of care as it existed on September 1, 2010. Medicine is a constantly evolving science, but a physician‘s conduct and decision-making must be judged against the standard of care that applied when the physician acted, not against some standard that developed thereafter. Put simply, changes in the standard of care do not apply retroactively in medical malpractice suits.
Consistent with this principle, a physician who testifies regarding the standard of care at issue must have possessed, on the date of the alleged malpractice, the same relevant specialty qualifications as the defendant. This is set forth in
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 trial court concluded that one of plaintiff‘s expert witnesses, Dr. David Viviano,3 cannot satisfy
At the time of the alleged malpractice, defendant was a board-certified specialist in orthopedic surgery. And, at the time of the alleged malpractice, Viviano was also a board-certified specialist in orthopedic surgery. Both defendant and Viviano have continued to practice as orthopedic specialists. However, after the time of the alleged malpractice, Viviano‘s board certification lapsed and he has not renewed it.4 Defendant argued, and the trial court agreed, that under
This case involves the interpretation of a statute, which presents a question of law subject to review de
novo. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). As our Supreme Court has instructed,
the purpose of statutory construction is to discern and give effect to the intent of the Legislature. In determining the intent of the Legislature, this Court must first look to the language of the statute. The Court must, first and foremost, interpret the language of a statute in a manner that is consistent with the intent of the Legislature. As far as possible, effect should be given to every phrase, clause, and word in the statute. The statutory language must be read and understood in its grammatical context, unless it is clear that something different was intended. Moreover, when considering the correct interpretation, the statute must be read as a whole. Individual words and phrases, while important, should be read in the context of the entire legislative scheme. [Bush v Shabahang, 484 Mich 156, 166-167; 772 NW2d 272 (2009) (quotation marks and citations omitted).]
The statute refers to two different individuals: the defendant and the expert.5 It also refers to two different, but interrelated, qualifications: medical specialty6 and board certification.7 If the defendant is a specialist, the testifying expert must have been a specialist in the same specialty at the time of the occurrence that is the
basis for the action. If the defendant is board-certified in a specialty, then the testifying expert must have been board-certified in the same specialty. We are tasked with determining when the testifying expert must have been board-certified. Contrary to defendant‘s argument, which was adopted by the trial court, we conclude that an expert testifying against a board-certified defendant must have been board-certified in the same specialty as the defendant at the time of the occurrence that is the basis for the action.
Defendant‘s primary argument is that the second sentence of
to apply to the “present,” i.e., the time of the testimony, is belied by the sentence directly before it and ignores our mandate to read the statute as a whole. Bush, 484 Mich at 166-167.
Defendant‘s present-tense argument is also defeated by reading the statute in its grammatical context. Removing the clauses related to the defendant, and considering only those relevant to the testifying expert, the statute reads:
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) . . . 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 . . . [or] the expert witness must be a specialist who is board certified in that specialty.
This reading more clearly demonstrates that the plain language of the second sentence of
As our Supreme Court has stated, the second sentence of
Our interpretation is also consistent with the Legislature‘s most recent amendment of the statute. “[C]ourts must pay particular attention to statutory amendments, because a change in statutory language is presumed to reflect either a legislative change in the meaning of the statute itself or a desire to clarify the correct interpretation
(1) In an action alleging medical malpractice, if the defendant is a specialist, a person shall not give expert testimony on the appropriate standard of care unless the person is or was a physician licensed to practice medicine
or osteopathic medicine and surgery or a dentist licensed to practice dentistry in this or another state and . . . :
(a) Specializes, or specialized at the time of the occurrence which is the basis for the action, in the same specialty or a related, relevant area of medicine or osteopathic medicine and surgery or dentistry as the specialist who is the defendant in the medical malpractice action. [Emphasis added.]
With the removal of these two emphasized phrases, the Legislature made clear that it intended to remove an “either/or” determination from the statute. That is, under the previous version of the statute, an expert witness was qualified to testify against a specialist defendant if the expert specialized at the time of trial and/or at the time of the occurrence. Under the amended statute, the relevant qualifications must be met only at the time of the occurrence that is the basis for the action.
Like the plain language of the statute, caselaw also requires that if the defendant was a board-certified specialist at the time of the occurrence that is the basis for the action, any expert testifying regarding the applicable standard of care must also have been a board-certified specialist at the time of the occurrence that is the basis for the action. In Woodard, 476 Mich at 560, our Supreme Court explained the statute as follows:
[T]he plaintiff‘s expert witness must match the one most relevant standard of practice or care—the specialty engaged in by the defendant physician during the course of the alleged malpractice, and, if the defendant physician is board certified in that specialty, the plaintiff‘s expert must also be board certified in that specialty.
The Supreme Court, consistent with the language of the statute, did not specify that an expert testifying against
a board-certified defendant must have been board-certified at any other time than the time of the occurrence that is the basis for the action. Woodard also provides that
if a defendant physician has received [board] certification from a medical organization . . . , the plaintiff‘s expert witness must also have obtained the same certification in order to be qualified to testify concerning the appropriate standard of medical practice or care. [Id. at 564 (emphasis added).]
It is undisputed that Viviano obtained (past tense) the relevant board certification; that he no longer possesses the certification does not alter the fact that it had been obtained and was in effect at the time of the occurrence that is the basis for the action. Moreover, Woodard specified that if a defendant physician has received (again, using the past tense) board certification, the testifying expert must have obtained the same certification. Accordingly, Woodard is consistent with our interpretation of
We reject defendant‘s argument that a different result is dictated by a passage from Halloran, 470 Mich at 578-579, wherein the Supreme Court interpreted
[Our] 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 sentence, the witness must also share the same board certification as the party against whom or on whose behalf the testimony is offered.
Defendant cites this passage for the proposition that the second sentence of
Defendant‘s suggested interpretation would also have additional confounding consequences when the defendant physician was board-certified at the time of the occurrence but had retired, died, or allowed his or her certification to lapse before trial. In such cases, testing board certification at the time of trial, rather than the occurrence, would permit testimony from an expert who had never been board-certified. Even if a defendant retained his or her board certification
throughout the litigation, defendant‘s interpretation would allow for standard-of-care testimony by a specialist who was not board-certified at the time of the occurrence but became board-certified during the pendency of the litigation.
In accordance with the plain language of the statute, its most recent amendment, the relevant caselaw, and common sense, we hold that, under
II. DEFENDANT‘S CROSS-APPEAL
A. MOTION TO STRIKE ALLEGATIONS
Plaintiff‘s complaint alleges that defendant committed medical malpractice in treating a trimalleolar fracture of plaintiff‘s right ankle. The complaint alleges 10 specific instances of professional negligence on the part of defendant. The two specific alleged breaches of the applicable
dispute defendant‘s counsel‘s assertion that, based on the evidence available, this specific alleged breach of the standard of care did not cause damage to plaintiff. Goral also testified that defendant‘s postsurgery advice to plaintiff that he could bear weight on his ankle violated the applicable standard of care. However, he similarly testified that this alleged improper advice, on the evidence available, did not cause damage to plaintiff.
Defendant filed a motion in limine to “strike allegations of malpractice” and to preclude plaintiff from offering any evidence regarding these two alleged breaches of the standard of care at trial. Defendant argued that, considering Goral‘s testimony, plaintiff could not establish a causal link between these two alleged breaches and plaintiff‘s claimed injuries and damages and that, therefore, any reference to the acts must be excluded. In response, plaintiff acknowledged that Goral‘s statements, on their own, were insufficient to establish that the two alleged breaches caused plaintiff injury. However, plaintiff asserted that evidence of the two alleged breaches was nonetheless relevant to his argument that, “notwithstanding [defendant‘s] claim that he has performed a hundred of [sic] ankle fracture repairs, [he] does not have the requisite skill or ability to properly fixate a trimalleolar fracture” and that the evidence “still goes to his overall knowledge and skill in the repair of these type of fractures.”
The trial court denied defendant‘s motion, holding as follows:
The Court is satisfied beyond peradventure that there is sworn testimony that the witnesses endorsed by the plaintiff will allege aspects of the treatment provided by the defendant to the plaintiff fell below the standard of care. The defense has argued that because certain aspects of the specifically identified breaches of the standard of care did not result in damages to the plaintiff that they ipso facto
must be excluded as evidence. Defendant argues at Page 3 of their brief that the Affidavit of Merit which suggests that the defendant was professionally negligent by allowing the plaintiff to bear weight on his right leg beginning on October 6, 2008, as well as providing a fixation method using an inadequate number of screws and metal plate that was too short, while falling below the standard of care, that because these violations of the standard of care do not specifically result in injuries to the plaintiff that the evidence must be excluded and the claims must be excluded.
The difficulty with this analysis is that it looks at the conduct which is alleged to be deficient in the treatment provided by the defendant in a complete vacuum. This is inappropriate and it does not give the jury an adequate opportunity to review in its entirety the quality of treatment provided by the defendant. It is certainly reasonable for a reasonable finder of fact to examine all the claims of the plaintiff and if satisfied that in addition to the difficulties of treatment that actually caused injuries if they believe the Defendant Doctor also breached the standard of care in a variety
of multiple other ways then it provides evidence which is relevant because it makes a question of fact more likely than not, that is, that the doctor did not perform his duties as is required by the standard of care and that injuries he did suffer were a result of his breaches and that the claims of the plaintiff are meritorious and should be compensated. It is also possible that the jury will reject this evidence and find it has no bearing or credibility; however, it should not be excluded. The Court further finds the conduct by the defendant sought to be excluded is all part of the res gestae of the claims before the Court.
As relates to the MRE 403 test, the Court does not believe that the prejudice of this information substantially outweighs its probative value. To the contrary, the prejudicial impact is de minimis if any and it is in the Court‘s assessment highly probative of whether or not that which was provided in medical care to the plaintiff in the time in question fell below the appropriate standards.
Defendant‘s artfully titled “motion to strike allegations” actually presents two distinct issues. First, in what is effectively a request for partial summary disposition, defendant argues that because there is no evidence that these two particular breaches caused injury, plaintiff may not seek damages for those violations. Whether a plaintiff‘s claim of medical malpractice fails in whole or in part as a matter of law is an issue of law that we review de novo. King, 278 Mich App at 520. After conducting review de novo, we agree with defendant that plaintiff may not seek damages for those violations and that the trial court, insofar as it did not so rule, was in error. See Wischmeyer v Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995).
The second issue raised in defendant‘s motion is the request that the trial court exclude all evidence that defendant violated the standard of care in these two respects. This aspect of the motion goes to the admission of evidence, which we review for an abuse of discretion. Albro v Drayer, 303 Mich App 758, 760; 846 NW2d 70 (2014). We agree with the trial court that evidence of the course of defendant‘s violations of the standard of care, even if the violations did not directly cause plaintiff‘s eventual injury, may be relevant to the jury‘s understanding of the case.8 But, because we have ruled that plaintiff may not seek damages for those alleged violations, the trial court‘s view of the calculus of probative value and prejudicial effect may change. See MRE 403. Accordingly, we reverse the evidentiary ruling so that the trial court may exercise its discretion
in that context and consider what limiting jury instruction to give in the event it finds the evidence admissible.
B. EXCLUSION OF EVIDENCE OF NO-FAULT BENEFITS
Defendant also argues that the trial court abused its discretion by granting plaintiff‘s motion to exclude evidence of any no-fault insurance benefits plaintiff received. We disagree.
In the present case, plaintiff fractured his ankle while changing a tire on a motor vehicle; therefore, he received no-fault insurance benefits from his motor vehicle
In response, defendant argued that he wished to introduce evidence regarding the existence and amount of no-fault benefits paid to plaintiff as support for defendant‘s claim that plaintiff was malingering and not actually seriously injured. Evidence of insurance coverage may not be introduced for the purpose of mitigating damages. Nasser v Auto Club Ins Ass‘n, 435 Mich 33, 58; 457 NW2d 637 (1990). However, this rule is not an absolute bar to the admission of such evidence.
An exception to the general rule of exclusion exists “where the evidence is sought to prove malingering or motivation on the plaintiff‘s part not to resume employment or to extend the disability.” Id.
Certainly, defendant may assert at trial that plaintiff is a malingerer. And, defendant has significant evidence upon which to base this argument. Another physician who treated plaintiff opined that plaintiff was “a non-compliant, unmotivated patient who has exaggerated his injuries and/or pain” and that plaintiff‘s “current status is best explained by his lack of motivation to improve his medical condition, secondary gain, and lack of compliance with his healthcare providers.” Defendant also points to evidence that doctors other than defendant had cleared plaintiff to return to work and plaintiff‘s deposition testimony, in which he stated that shortly before his injury he learned that he was going to be fired from his job and that he remained capable of attending school.
The trial court granted plaintiff‘s motion, holding as follows:
The Court is satisfied that the Collateral Source Rule bars the admission of this evidence. See Kurta v Probelske, 324 Mich 179; 36 NW2d 889 (1949). The Court does not believe that the introduction of the existence of PIP benefits in any way leads to further clarification of the issues at bar and it will be excluded. Even if there were any modest probative value of such evidence, the Court believes that any probative value of PIP benefits would be substantially outweighed by the probative value10 and would confuse the jury.
This conclusion, however, does not in any way restrict the defendants from being able to call witnesses or treating
physicians to provide testimony that they believe that Plaintiff is malingering, motivated by financial compensation or any other rationale that they believe exists to demonstrate why that which the plaintiff represents is not correct.
The defense is excluded from introducing evidence of no-fault benefits. They are not excluded from introducing evidence of medical providers that tend to suggest that the plaintiff is fabricating
or exaggerating the injuries for ulterior motives.
When there is evidence other than insurance coverage to suggest malingering, admission of evidence of insurance coverage is left to the discretion of the trial court. Nasser, 435 Mich at 59-60. In exercising this discretion, the trial court must undertake an analysis under MRE 403. Id. The court must weigh the probative value of the evidence against “the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403.
The trial court recognized the applicability of MRE 403 and made findings consistent with the language of the rule. There was no abuse of discretion. First, the evidence of plaintiff‘s no-fault insurance benefits is cumulative in light of the other evidence available to defendant to support his claim of malingering. Second, since plaintiff‘s no-fault wage loss benefits must, by statute, have terminated in 2011, their probative value is limited. See
ally probative evidence would result in a minitrial on the question of whether plaintiff was legally and factually entitled to no-fault benefits. If evidence of the receipt of the benefits is admitted to show that plaintiff was wrongly seeking financial gain, plaintiff would be entitled to respond with proofs that his receipt of these benefits was proper. This process could include the calling of more physician witnesses, insurance company adjustors and other personnel, and the review of internal insurance company documents, among additional otherwise extraneous proofs.
In sum, the trial court did not abuse its discretion when it determined that, although there was evidence to support defendant‘s theory that malingering, evidence of collateral source payments, in the form of plaintiff‘s no-fault benefits, was not admissible because the probative value of this evidence was substantially outweighed by the danger of unfair prejudice. MRE 403.
We reverse the trial court‘s ruling that Dr. Viviano may not testify regarding the applicable standard of care. We reverse the trial court‘s denial of defendant‘s motion to strike allegations insofar as it denied defendant‘s request to bar an award of damages for the two alleged violations of the standard of care on which plaintiff has not offered evidence of causation, and instruct the trial court on remand to reconsider defendant‘s request to exclude evidence of those two alleged violations of the standard of care. We affirm the trial court‘s grant of plaintiff‘s motion to exclude evidence of no-fault insurance benefits. This case is remanded to the circuit court for proceedings consistent with this opinion. We do not retain jurisdiction.
SHAPIRO, P.J.
WHITBECK and STEPHENS, JJ., concurred with SHAPIRO, P.J.