Greathouse v. Rhodes, Docket No. 214434.

• Citation: 618 N.W.2d 106,242 Mich. App. 221
• Decision Date: 18 October 2000
• Docket Number: Docket No. 214434.
• Parties: Sally GREATHOUSE, as Personal Representative of the Estate of Robert Greathouse, Plaintiff-Appellant/Cross-Appellee, v. Dr. Charles RHODES, M.D. and Southwestern Medical Clinic, Defendants-Appellees/Cross-Appellants, and Dr. John Duge, M.D. and University Medical Specialists, Defendants-Appellees.
• Court: Court of Appeal of Michigan (US)

618 N.W.2d 106

242 Mich. App. 221

Sally GREATHOUSE, as Personal Representative of the Estate of Robert Greathouse, Plaintiff-Appellant/Cross-Appellee, v. Dr. Charles RHODES, M.D. and Southwestern Medical Clinic, Defendants-Appellees/Cross-Appellants, and Dr. John Duge, M.D. and University Medical Specialists, Defendants-Appellees.

Docket No. 214434.

Court of Appeals of Michigan.

Submitted April 4, 2000, at Grand Rapids.

Decided August 18, 2000, at 9:00 a.m.

Released for Publication October 18, 2000.

Ferris & Salter, P.C. (by Heidi Salter-Ferris), Ann Arbor, for Sally Greathouse.

Smith, Haughey, Rice & Roegge (by Lance R. Mather), Grand Rapids, for Charles Rhodes, M.D., and Southwestern Medical Clinic.

Before: SAAD, P.J., and JANSEN and TALBOT, JJ.

TALBOT, J.

In this medical malpractice action, plaintiff appeals as of right from the jury's verdict of no cause of action. Plaintiff challenges the trial court's rulings (1) denying her motion to strike defendant Dr. Charles Rhodes' expert witnesses on the ground that they were not qualified under M.C.L. § 600.2169(1)(a); MSA 27A.2169(1)(a) to testify regarding the standard of care, and (2) denying her request to use learned treatises to question her expert witnesses on direct-examination in order to establish that their opinions were supported by "peer review publications" and met other requirements of M.C.L. § 600.2955(1); MSA 27A.2955(1). We affirm.

I

In December 1994, decedent Robert Greathouse began to experience episodes of severe chest pain. Decedent sought treatment from his regular physician, Dr. Charles Rhodes, whom decedent had seen regularly for the last five years. Dr. Rhodes prescribed medication and referred decedent for a cardiac stress test. Another doctor conducted the stress test and, after reviewing the results and decedent's symptoms, instructed decedent to immediately consult a cardiologist. Dr. Rhodes referred decedent to cardiologist Dr. John Duge, who prescribed a different type of medication and scheduled an angiogram. Decedent, however, suffered a fatal heart attack six days before the scheduled procedure.

On May 13, 1996, plaintiff filed an amended complaint against Drs. Rhodes and Duge, alleging that their failure to properly diagnose and treat decedent's unstable angina caused his death.¹ In compliance with M.C.L. § 600.2912d(1); MSA 27A.2912(4)(1), plaintiff filed with the complaint an affidavit of merit signed by Dr. Wendy Marshall, which specified that she was a board-certified surgeon. In response, Dr. Rhodes filed an affidavit of meritorious defense signed by Dr. Clinton Wilson in compliance with M.C.L. § 600.2912e(1); MSA 27A.2912(5)(1). The affidavit of meritorious defense did not indicate Dr. Wilson's practice area or background.

Plaintiff deposed Dr. Rhodes on July 9, 1997. Sometime before trial, Dr. Rhodes named three standard of care witnesses to testify on his behalf. Two of the proposed witnesses were board-certified family practitioners and the third specialized in internal medicine. On July 6, 1998, less than a month before trial, plaintiff filed a motion to strike Dr. Rhodes' experts pursuant to M.C.L. § 600.2169(1)(a); MSA 27A.2169(1)(a) on the ground that they were not qualified to testify regarding the appropriate standard of care. Plaintiff argued that because Dr. Rhodes was a board-certified general surgeon, subsection 2169(1)(a) required that his expert witnesses be board-certified surgeons as well. While conceding that this Court held the predecessor statute to § 2169 unconstitutional in McDougall v. Eliuk, 218 Mich. App. 501, 554 N.W.2d 56 (1996), plaintiff stated that she wanted to preserve the issue in the expectation that the Supreme Court would reverse McDougall. Defendant argued in response that even if subsection 2169(1)(a) were deemed constitutional, it did not apply to him or his expert witnesses because he did not actually practice as a general surgeon and did not treat decedent in that capacity. Following a hearing held on August 3, 1998, the day before trial, the trial court accepted plaintiff's interpretation of subsection 2169(1)(a) and granted the motion to strike.

On August 4, 1998, the first day of trial, the trial court heard arguments on Dr. Rhodes' motion for reconsideration and his alternative motion to adjourn trial. Stating that it did not believe that its interpretation of subsection 2169(1)(a) constituted palpable error, the trial court denied the motion for reconsideration. With respect to the motion to adjourn, Dr. Rhodes' attorney maintained that while he was aware of § 2169, he did not anticipate the court's ruling, which he said was "very significant in terms of its impact in our case." Dr. Rhodes' attorney explained that "while the loss of experts may not foreclose our ability to put on proofs in the person of Doctor Rhodes, it ... certainly limits drastically what we will be able to do and how we will be able to do it." Dr. Rhodes therefore requested that the court adjourn trial to allow him time to obtain experts specializing in general surgery and that it grant leave to amend his witness list.

In addressing Dr. Rhodes' concerns, the trial court noted that plaintiff's motion to strike was filed less than twenty-eight days before trial and heard on the day of trial in violation of the trial court's scheduling order, which provided: "all motions, the basis which is or should be known prior to trial shall be filed, served, and heard as soon as possible ... before the settlement conference." Although plaintiff maintained that the motion was timely because it was filed shortly after she deposed the last of Dr. Rhodes' experts, Dr. Rhodes claimed that plaintiff's argument was disingenuous because he had complied with discovery and plaintiff had repeatedly canceled earlier scheduled depositions. Presented with these arguments, the trial court concluded that while the denial of the motion to adjourn would not end the litigation, it would

certainly prejudice the defense of Doctor Rhodes in this case in that he would be left without ... any expert and would be forced to rely on his own testimony as to the standard of care and whether or not he breached it and certainly that is not a desirable position to be in [in this] litigation.

After a discussion in chambers, the court stated that upon further consideration it was compelled to adhere to the McDougall holding that § 2169 was unconstitutional and reversed its previous ruling granting plaintiff's motion to strike, thereby permitting Dr. Rhodes' family practice experts to testify at trial.

Before plaintiff presented her standard of care experts at trial, the trial court also heard arguments regarding her plans to question them with learned treatises on the diagnosis and treatment of unstable angina. Plaintiff wanted to use excerpts and enlarged graphs taken from a federal Department of Health and Human Services publication entitled Unstable Angina and Management Clinical Practice Guideline and similar guidelines approved by the American Heart Association. Defendants argued that the materials were hearsay and inadmissible under MRE 707 (use of learned treatises for impeachment) because plaintiff was not using them to impeach her own witnesses. Plaintiff responded that she was not using the materials as substantive evidence, but rather to establish under M.C.L. § 600.2955(1); MSA 27A.2955(1) that her experts' opinions about the standard of care and defendants' failure to comply with that standard were based on accepted scientific standards. The trial court ruled that plaintiff could not use the material for this purpose because § 2955 applied only to "scientific opinions" and issues concerning the standard of care, unlike those pertaining to proximate cause, did not involve scientific opinion.

Following the presentation of proofs, the jury returned a verdict for defendants.

II

Plaintiff first argues on appeal that the trial court abused its discretion in denying her motion to strike Dr. Rhodes' family practice experts because they were not qualified under M.C.L. § 600.2169(1)(a); MSA 27A.2169(1)(a) to testify regarding the appropriate standard of care. Subsection 2169(1)(a) provides in pertinent part:

(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. [Emphasis added.]

Plaintiff contends that because Rhodes is a "specialist who is board certified" in general surgery, subsection 2169(1)(a) requires that his standard of care experts also be specialists who are board-certified in general surgery. Rhodes, on the other hand, maintains that although he is "board certified," he is not a "specialist" in general surgery because he has been practicing solely as a general practitioner for many years and treated decedent in that capacity. Rhodes therefore claims that subsection 2169(1)(a) does not require that his experts be board-certified surgeons.

Initially we note that plaintiff relies on the 1993 version of § 2169. In McDougall, supra, on which the trial court relied in striking plaintiff's motion, this Court held the 1986 version of the statute unconstitutional because it conflicted with MRE 702 and therefore usurped the Michigan Supreme Court's authority over evidentiary rules. After this appeal was filed, our Supreme Court reversed McDougall and concluded that § 2169 i...