Gay v. Select Specialty Hosp.

• Decision Date: 31 January 2012
• Docket Number: Docket No. 301064.
• Citation: 295 Mich.App. 284,813 N.W.2d 354
• Parties: GAY v. SELECT SPECIALTY HOSPITAL.
• Court: Court of Appeal of Michigan — District of US

295 Mich.App. 284

813 N.W.2d 354

GAY

v.SELECT SPECIALTY HOSPITAL.

Docket No. 301064.

Court of Appeals of Michigan.

Submitted Oct. 11, 2011, at Lansing.

Decided Jan. 31, 2012, at 9:00 a.m.

Blaske & Blaske, P.L.C., Bellevue (by Thomas H. Blaske), for Patricia Gay.

Magdich & Associates, PC, Novi (by Karen W. Magdich and Jennifer R. Anstett), for Select Specialty Hospital.

Before: M.J. KELLY, P.J., and FITZGERALD and WHITBECK, JJ.

M.J. KELLY, P.J.

In this nursing malpractice case, Patricia Gay, as personal representative of the estate of Dolores M. Wright, deceased, appeals by right the trial court's order dismissing Gay's suit against defendant Select Specialty Hospital.¹ On appeal, the primary issue is whether the trial court erred when it determined that Gay's proposed nursing expert, Kathleen Boggs, R.N., did not meet the qualifications required of experts who propose to testify concerning the applicable standard of care. See MCL 600.2169(1). We conclude that the trial court erred when it determined that Boggs did not meet the qualifications stated under MCL 600.2169(1). Because Boggs was qualified to testify about the standard of care, the trial court further erred when it dismissed Gay's claim on the ground that Gay did not have an expert to establish the standard of care for her malpractice claim. Accordingly, we reverse and remand for further proceedings.

I. BASIC FACTS AND PROCEDURAL HISTORY

Dolores Wright was admitted to Select Specialty Hospital to treat her rheumatoid arthritis—including associated rheumatoid lung disease—in October 2003. Wright responded well to the treatments and, on Thursday, November 13, 2003, Wright learned that she would be discharged from the hospital on the following Monday.However, the next day a nurse assisted Wright to a commode, but left her unattended. When her phone rang, Wright reached for it and fell from the commode. She injured her head, fractured her shoulder, and died two days later.

In November 2008, Patricia Gay, acting as the personal representative of Dolores Wright's estate, sued the hospital. In the complaint, Gay alleged that, in order to comply with the standard of care applicable to Wright's conditions, the hospital's nursing staff had to remain by Wright's side and assist her whenever she was out of bed. As such, the nurse should not have left Wright unattended on the commode and had the nurse not done so, she could have prevented Wright's fall. Gay alleged that the fall was a direct and proximate result of the hospital's nursing staff's negligence and that the fall ultimately led to Wright's death. Gay submitted Boggs' affidavit of merit in support of the complaint. In the affidavit, Boggs averred that the nursing staff should have assessed Wright for fall-risk on each shift and, given Wright's frailty, should not have left her unattended while she used the commode.

The hospital alleged that its nursing staff was not negligent. Rather, Wright's condition had improved significantly and immediately before Wright reached for the phone, a nurse had come in and instructed her to wait for assistance.

Approximately two years later, in September 2010, the hospital moved to strike Boggs as an expert and dismiss Gay's complaint with prejudice. The hospital argued that the affidavit of merit was insufficient because Boggs was not qualified to testify as an expert. More specifically, the hospital argued that Boggs did not devote a majority of her professional time to the active clinical practice of nursing or to the instruction of nursing students in an accredited health professional school or accredited residency or clinical research program in the year immediately preceding the fall. As such, the hospital argued that Boggs was not qualified to sign the affidavit of merit under MCL 600.2169(1)(b) and that the trial court had to dismiss the case.

After hearing oral arguments on the motions, the trial court determined that Boggs did not meet the expert qualifications stated under MCL 600.2169(1)(b). Accordingly, the trial court granted the hospital's motion to strike Boggs as an expert witness. The trial court also determined that Gay did not timely propose an alternate expert witness. Therefore, it granted the hospital's motion to strike Gay's supplemental witness list. The trial court then dismissed the case with prejudice. Gay now appeals.

II. STANDARDS OF REVIEW

“Ordinarily, the qualification of competency of expert witnesses is a matter for the discretion of the trial judge....” Siirila v. Barrios, 398 Mich. 576, 591, 248 N.W.2d 171 (1976). By reviewing a trial court's decision concerning the admission of expert testimony under this highly deferential standard, appellate courts recognize that the trial court's assessment of the proposed expert and his or her testimony typically involves a complex balancing of various factors. See, e.g., Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592–595, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) (noting that, in reviewing the admission of expert testimony, trial courts must consider a variety of factors—including being mindful of other applicable rules—to determine the evidentiary relevance and reliability of the proposed testimony). The same is true when examining a witness's qualifications; the court must weigh the witness's “knowledge, skill, experience, training,[and] education” and determine whether—on the basis of those factors—the witness is sufficiently qualified to offer expert testimony on the area at issue. MRE 702. There is always the concern that jurors will disregard their own common sense and give inordinate or dispositive weight to an expert's testimony. See People v. Peterson, 450 Mich. 349, 374, 537 N.W.2d 857 (1995) (noting the potential that a jury might defer to an expert's seemingly objective view of the evidence). For that reason, trial courts must—at every stage of the litigation—serve as the gatekeepers who ensure that the expert and his or her proposed testimony meet the threshold requirements. Gilbert v. DaimlerChrysler Corp., 470 Mich. 749, 782, 685 N.W.2d 391 (2004). This includes determining whether the witness's expertise fits the nature of the witness's proposed testimony. Id. at 789, 685 N.W.2d 391.

Although trial courts have considerable discretion in determining whether a witness is qualified to testify as an expert, see People v. Whitfield, 425 Mich. 116, 123, 388 N.W.2d 206 (1986), trial courts must nevertheless accurately apply the law in exercising their discretion. See Gilbert, 470 Mich. at 780, 685 N.W.2d 391 (“While the exercise of this gatekeeper role is within a court's discretion, a trial judge may neither ‘abandon’ this obligation nor ‘perform the function inadequately.’ ”), quoting Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 158–159, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) (Scalia, J., concurring); see also People v. Lukity, 460 Mich. 484, 488, 596 N.W.2d 607 (1999) (noting that a trial court necessarily abuses its discretion when it premises its decision on a misapplication of law). They may not, for example, apply an “overly narrow test of qualifications” in order to preclude a witness from testifying as an expert. Whitfield, 425 Mich. at 123, 388 N.W.2d 206. And, this Court reviews de novo whether the trial court correctly selected, interpreted, and applied the law. See Adair v. Michigan, 486 Mich. 468, 477, 785 N.W.2d 119 (2010). Moreover, when a trial court admits or excludes evidence on the basis of an erroneous interpretation or application of law, it necessarily abuses its discretion. Kidder v. Ptacin, 284 Mich.App. 166, 170, 771 N.W.2d 806 (2009); Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990) (stating that a trial court necessarily abuses its discretion when it premises its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence).

III. EXPERTS AND THE APPLICABLE STANDARD OF CARE

In order to establish the malpractice claim at trial, Gay had to present evidence concerning the standard of care applicable to the nursing staff involved in Wright's care. See Craig v. Oakwood Hosp., 471 Mich. 67, 86, 684 N.W.2d 296 (2004). And she could do so only through an expert's testimony. See Gonzalez v. St. John Hosp. & Med. Ctr. (On Reconsideration), 275 Mich.App. 290, 294, 739 N.W.2d 392 (2007). A witness must meet certain basic qualifications in order to testify as an expert. See, e.g., MRE 702. In addition, our Legislature has determined that a “person shall not give expert testimony on the appropriate standard of practice or care” in an action alleging medical malpractice unless that person meets certain requirements. One requirement is that the person must have “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 the “active clinical practice” or the instruction of “students in an accredited health professional school or accredited residency or clinical research program” or both, where the active clinical practice or instruction is “in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed....” MCL 600.2169(1)(b)( i ) and ( ii ). Finally, the party proposing to call an expert bears the burden to show that his or her expert meets these qualifications. See Clerc v. Chippewa Co. War Mem. Hosp., 477 Mich. 1067, 1067–1068, 729 N.W.2d 221 (2007).

Here, Gay retained Boggs to offer an expert opinion about the applicable standard of care. However, after the hospital deposed Boggs, it moved to strike her as a witness and dismiss Gay's case. The hospital argued that Boggs could not testify about the applicable standard of care because she did not meet the professional-time requirement stated under MCL 600.2169(1)(b). Specifically, the hospital presented Boggs's deposition testimony in which it claimed she admitted...