Decker v. Flood

• Decision Date: 10 January 2002
• Docket Number: Docket No. 224482.
• Citation: 248 Mich. App. 75,638 N.W.2d 163
• Parties: Erik James DECKER and Vicki Decker, Plaintiffs-Appellants, v. Kevin FLOOD, DDS, and Kevin Flood, DDS, PC, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

638 N.W.2d 163

248 Mich. App. 75

Erik James DECKER and Vicki Decker, Plaintiffs-Appellants, v. Kevin FLOOD, DDS, and Kevin Flood, DDS, PC, Defendants-Appellees.

Docket No. 224482.

Court of Appeals of Michigan.

Submitted June 5, 2001, at Grand Rapids.

Decided October 26, 2001, at 9:15 a.m.

Released for Publication January 10, 2002.

Schenk & Boncher (by Curtis D. Rypma), Grand Rapids, for the plaintiffs.

Smith Haughey Rice & Roegge (by Jon D. Vander Ploeg), Grand Rapids, for the defendants.

Before: NEFF, P.J., and DOCTOROFF and WILDER, JJ.

PER CURIAM.

Plaintiffs appeal as of right the trial court's decision to grant defendants' motion for summary disposition and to dismiss without prejudice plaintiffs' complaint alleging dental malpractice. We affirm.

On January 13, 1997, defendant Kevin Flood¹ examined plaintiff Erik Decker,² who was complaining of pain, determined that plaintiff needed a root canal on two of his teeth, and began the procedure on that date. On January 21, 1997, the same day that defendant completed the root canal procedure, plaintiff began to experience pain, telephoned defendant, and was instructed to return to defendant's office. According to plaintiffs' complaint, after defendant administered three successive injections of Novocaine, plaintiff became cold, began to shake, and eventually stopped breathing. Plaintiffs further alleged that defendant administered cardiopulmonary resuscitation. Plaintiff was taken by ambulance to a hospital and released the following day. Plaintiffs also claimed that another dentist referred plaintiff to an endodontist³ who repaired and completed the root canal begun by defendant.

Plaintiffs filed their complaint on June 18, 1999. Attached to the complaint was an affidavit of merit signed by Michael J. Gallagher, D.D.S. According to the affidavit, Dr. Gallagher is a "doctor of dental surgery" and a member of the American Association of Endodontists. In the affidavit, Dr. Gallagher stated that he was familiar with the standard of practice for a dental surgeon treating a patient with plaintiff's complaints and opined that defendant breached the standard of practice by failing to properly drill, clean, fill, or pack the root canal or properly remove the tissue and filling material. Dr. Gallagher also claimed that defendant's breach of the standard of practice was a proximate cause of plaintiff's pain and that he, Dr. Gallagher, "had to perform a root canal retreatment" on plaintiff's teeth to address plaintiff's pain.

On September 11, 1999, defendants answered plaintiffs' complaint. On September 28, 1999, defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (C)(10). In their motion, defendants argued that defendant Dr. Flood was a dentist in general practice in January 1997 and M.C.L. § 600.2912d required plaintiffs to file with their complaint an affidavit of merit signed by a health professional who plaintiffs' attorney reasonably believed met the requirements of M.C.L. § 600.2169. According to defendants, Dr. Gallagher specialized in endodontics and, therefore, plaintiffs failed to file an affidavit of merit that met the requirements of M.C.L. § 600.2912d and M.C.L. § 600.2169, and plaintiffs' complaint should be dismissed.

In response to defendants' motion, plaintiffs argued that both defendant and Dr. Gallagher are general practitioners who perform root canals, with the only difference being that Dr. Gallagher performs only root canals. Plaintiffs argued that the statute "did not make sense," because it precluded Dr. Gallagher, whose practice was limited to root canals, from giving expert testimony concerning the standard of practice for root canals. Plaintiffs further argued that the statute was intended to prevent a professional who has no experience at all in a given area from rendering an expert opinion.

The trial court rejected plaintiffs' argument that Dr. Gallagher was a general practitioner and found that the evidence was uncontroverted that he specialized in root canals. The trial court also stated that the statute clearly precludes an expert who is not a general practitioner from giving expert testimony concerning the standard of practice required for a general practitioner. The court further noted that the Supreme Court affirmed the Legislature's right to set standards for experts in medical malpractice cases and that, regardless of whether the statute creates an unfair standard, the court was unable to "square the wording of the statute to the facts here." The court granted defendants' motion and dismissed plaintiffs' complaint without prejudice, noting that there may be a statute of limitations problem.

On appeal, plaintiffs argue that the trial court erred in finding that their affidavit of merit did not comply with M.C.L. § 600.2912d and in granting defendants' motion for summary disposition. We review de novo a trial court's decision on a motion for summary disposition. Holmes v. Michigan Capital Medical Center, 242 Mich.App. 703, 706, 620 N.W.2d 319 (2000).

In this case, defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). It is not apparent from the trial court's statements on the record or the order entered by the court whether it granted the motion under subsection C(8) or subsection C(10). However, because it is clear that the court relied on evidence outside the pleadings in order to make its determination that Dr. Gallagher did not qualify as an expert under M.C.L. § 600.2169, we review this motion under the standard for MCR 2.116(C)(10).⁴ MCR 2.116(G)(5); Smith v. Globe Life Ins. Co., 460 Mich. 446, 455, 597 N.W.2d 28 (1999). A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim. Smith, supra at 454, 597 N.W.2d 28. The reviewing court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the light most favorable to the nonmoving party. Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996). The court should grant the motion only if the affidavits or other documentary evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

The issue before us in this case involves the requirements for the expert who signs the affidavit of merit that a medical malpractice plaintiff must file with the complaint pursuant to M.C.L. § 600.2912d. The statute requires that "the plaintiff in an action alleging medical malpractice ... 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 [MCL 600.2169]." M.C.L. § 600.2912d(1). MCL 600.2169(1) states:

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:

* * *

(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 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.

The determination of this issue requires us to interpret the language of two statutes. The primary goal of statutory construction is to determine and give effect to the intent of the Legislature. Frankenmuth Mut. Ins. Co. v. Marlette Homes, Inc., 456 Mich. 511, 515, 573 N.W.2d 611 (1998). The specific language of the statute is the first source for determining the Legislature's intent, and when the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed and judicial construction is not required or permitted. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999).

Unless otherwise defined in the statute, words or phrases should be accorded their plain and ordinary meanings, and technical terms should be construed according to their peculiar meanings. MCL 8.3a; Western Michigan Univ. Bd. of Control v. Michigan, 455 Mich. 531, 539, 565 N.W.2d 828 (1997). Also, the reviewing court should presume that every word has some meaning and should avoid a construction that would render any part of a statute surplusage or nugatory. People v. Borchard-Ruhland, 460 Mich. 278, 285, 597 N.W.2d 1 (1999).

Here, plaintiffs claim that their expert, Dr. Gallagher, meets the qualifications of M.C.L. § 600.2169(1) because both defendant and Dr. Gallagher are general practitioners who perform root canals, with the only difference being that Dr. Gallagher limits his practice to root canals. Plaintiffs' argument requires an interpretation of the meaning of the concept "general practitioner" in the statute. Because this term is not defined in the statute and does not appear to be a technical term, we look to its plain and ordinary meaning. Western Michigan Univ Bd, supra at 539, 565 N.W.2d 828. The term "general practitioner" is commonly defined as "a medical practitioner whose practice is not limited to any specific branch of medicine." Random House Webster's College Dictionary (1997). By contrast, the term "specialist" is defined as "a medical practitioner who deals only with a particular class of diseases, conditions, patients, etc." Id.⁵

It is apparent from plaintiffs' admission that because Dr. Gallagher "limits his practice" to root canals, he does not meet the definition of a general practitioner and...