Gonzalez v. St. John Hosp.

• Decision Date: 19 April 2007
• Docket Number: Docket No. 272093.
• Citation: 275 Mich. App. 290,739 N.W.2d 392
• Parties: Bonnie Jean GONZALEZ, Personal Representative of the Estate of Conde Gonzalez, Plaintiff-Appellant, v. ST. JOHN HOSPITAL & MEDICAL CENTER, Defendant-Appellee (On Reconsideration), and Northeast Surgical Associates, P.C., Peter D. Kowynia, M.D., and Christopher N. Vashi, M.D., Defendants.
• Court: Court of Appeal of Michigan — District of US

739 N.W.2d 392

275 Mich. App. 290

Bonnie Jean GONZALEZ, Personal Representative of the Estate of Conde Gonzalez, Plaintiff-Appellant, v. ST. JOHN HOSPITAL & MEDICAL CENTER, Defendant-Appellee (On Reconsideration), and Northeast Surgical Associates, P.C., Peter D. Kowynia, M.D., and Christopher N. Vashi, M.D., Defendants.

Docket No. 272093.

Court of Appeals of Michigan.

Submitted March 13, 2007, at Lansing.

April 19, 2007, at 9:00 a.m.

Released for Publication August 29, 2007.

Freedman & Herskovic, P.L.C. (by Stuart G. Freedman), and Richard E. Shaw, Southfield, Detroit, for Bonnie J. Gonzalez.

Kitch Drutchas Wagner Valitutti & Sherbrook (by Beth A. Wittmann, Anthony G. Arnone, and Cheryl A. Cardelli), Detroit, for St. John Hospital & Medical Center.

Before: SAWYER, P.J., and FITZGERALD and DONOFRIO, JJ.

DONOFRIO, J.

Plaintiff appeals as of right from the trial court's order granting summary disposition in favor of defendant St. John Hospital & Medical Center (St.John) in this medical malpractice action. Because the trial court granted summary disposition to defendant in the belief that MCL 600.2169(1)(c) precluded plaintiff's proposed expert's testimony, the trial court errantly granted summary disposition in favor of defendant, and we reverse and remand. This appeal is being decided without oral argument pursuant to MCR 7.214(E).

Decedent, Conde Gonzalez, was admitted to St. John for treatment of complications resulting from colorectal surgery. Defendants Christopher N. Vashi, M.D., then a third-year surgical resident, and Peter D. Kowynia, M.D., decedent's surgeon, both treated decedent. Decedent began to bleed profusely from a drainage catheter. A leak was discovered in decedent's left iliac artery, and despite surgical intervention to repair the leak, decedent died. Plaintiff filed suit alleging that defendants committed medical malpractice in their diagnosis and treatment of decedent. Plaintiff submitted an affidavit of merit from Mark Gordon, M.D., who is a board-certified general surgeon and who stated that Vashi violated the applicable standard of care in his treatment of decedent.

Defendants St. John; Peter D. Kowynia, M.D.; and Northeast Surgical Associates, P.C., Kowynia's professional corporation, moved for summary disposition pursuant to MCR 2.116(C)(7) or (10).¹ Defendants argued that because plaintiff's expert was a specialist and Vashi was a general practitioner, the expert was not qualified to offer testimony against Vashi under MCL 600.2169(1)(c). The trial court granted summary disposition in favor of St. John. The trial court ruled that Vashi was a general practitioner rather than a specialist, and that, under MCL 600.2169, Gordon, a specialist, was not qualified to testify against Vashi. This appeal followed.

We review a trial court's decision on a motion for summary disposition de novo. Auto Club Group Ins. Co. v. Burchell, 249 Mich.App. 468, 479, 642 N.W.2d 406 (2001). Similarly, statutory interpretation is a question of law that we review de novo on appeal. Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003). We review for abuse of discretion a trial court's ruling regarding the qualification of a proposed expert witness to testify. Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006). The abuse of discretion standard recognizes that there may be no single correct outcome in certain situations; instead, there may be more than one reasonable and principled outcome. When the trial court selects one of these principled outcomes, it has not abused its discretion, and the reviewing court should defer to the trial court's judgment. An abuse of discretion occurs when the trial court chooses an outcome falling outside the principled range of outcomes. Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809 (2006); People v. Babcock, 469 Mich. 247, 269, 666 N.W.2d 231 (2003).

In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care; (2) breach of that standard by the defendant; (3) an injury; and (4) proximate causation between the alleged breach and the injury. Wischmeyer v. Schanz, 449 Mich. 469, 484, 536 N.W.2d 760 (1995). If the defendant is a general practitioner, the plaintiff must prove that the defendant "failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community...." MCL 600.2912a(1)(a). Expert testimony is required to establish the applicable standard of care and to demonstrate that the defendant breached that standard. Birmingham v. Vance, 204 Mich.App. 418, 421, 516 N.W.2d 95 (1994). In order to proceed against a hospital on a theory of vicarious liability, a plaintiff must offer expert testimony to establish specific breaches of the standards of care applicable to the individuals involved in the plaintiff's care and treatment alleged to be deficient. Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 22, 651 N.W.2d 356 (2002).

Plaintiff argues that the trial court erred by granting summary disposition in favor of St. John. Plaintiff states that a specialist is a physician who limits his or her practice to a specific branch of medicine or surgery, and in particular is one who, by virtue of advanced training, may be certified as a specialist. Arguing that a physician can be a specialist without being board-certified in the specialty, Woodard, supra at 561, 719 N.W.2d 842, plaintiff specifically asserts that at the time decedent died, Vashi was a resident receiving advanced training in general surgery; thus, Vashi should be considered a specialist in that field. St. John counters that, as a resident, Vashi is clearly a general practitioner. As such, plaintiff was required to establish a breach of the standard of care by producing an expert witness who, during the year immediately preceding the occurrence that forms the basis for the claim, devoted a majority of his or her professional time to active clinical practice as a general practitioner or to the teaching of general practice, citing MCL 600.2169(1)(c). St. John further states that summary disposition was proper because plaintiff's proffered expert witness, Dr. Gordon, was a general surgeon and not a general practitioner and, therefore, did not meet the requirements of MCL 600.2169(1)(c).

In Michigan, it is established that, in order to testify regarding the standard of care applicable in a particular case, the expert's qualifications must match those of the defendant. MCL 600.2169(1);² Decker v. Flood, 248 Mich.App. 75, 85, 638 N.W.2d 163 (2001). If the defendant is a specialist, the expert witness must, at the time of the occurrence that forms the basis of the action, specialize in the same specialty, and subspecialty if applicable, as the defendant. MCL 600.2169(1)(a); Woodard, supra at 578-579, 719 N.W.2d 842. If the defendant is a general practitioner, the expert witness, "during the year immediately preceding the date of the occurrence that is the basis for the claim of action," must have devoted a majority of his or her professional time to active practice as a general practitioner or the teaching of general practice. MCL 600.2169(1)(c); Woodard, supra at 601 n. 22, 719 N.W.2d 842 (Taylor, C.J., concurring in the result only).

In order to determine the standard of care applicable in the case at bar, we begin with a factual inquiry. Our review of the record reveals that it is not disputed that Vashi was a third-year surgical resident practicing within that discrete specialty on the date of the occurrence in this case. Because reasonable minds may not disagree regarding this factual inquiry, we move on to the legal analysis required and engage in an analysis to determine who is qualified to testify against Vashi, a third-year surgical resident practicing within the specialty of general surgery on the date of the occurrence.

In 1989, a panel of this Court held that a trial court did not abuse its discretion in refusing to permit the expert testimony of an internist and cardiologist against a resident. Carlton v. St. John Hosp., 182 Mich. App. 166, 173, 451 N.W.2d 543 (1989). Just a few years later, in 1993, this Court stated that "[i]t is clear that interns and residents are not `specialists,' and, therefore, we conclude that the applicable standard of care for such persons is that of the local community or similar communities." Bahr v. Harper-Grace Hosps., 198 Mich. App. 31, 34, 497 N.W.2d 526 (1993), rev'd on other grounds 448 Mich. 135, 528 N.W.2d 170 (1995), citing Hilyer v. Hole, 114 Mich.App. 38, 43, 318 N.W.2d 598 (1982). Since then, Bahr has been the authority on the standard of care applicable to resident physicians practicing medicine in Michigan. However, our Supreme Court has recently discussed the requirements of MCL 600.2169(1) and stated:

MCL 600.2169(1) does not define the term "specialty." "We may consult dictionary definitions of terms that are not defined in a statute." People v. Perkins, 473 Mich. 626, 639, 703 N.W.2d 448 (2005)....

... Both the dictionary definition of "specialist" and the plain language of § 2169(1)(a) make it clear that a physician can be a specialist who is not board certified. They also make it clear that a "specialist" is somebody who can potentially become board certified. Therefore, a "specialty" is a particular branch of medicine or surgery in which one can potentially become board certified. Accordingly, if the defendant physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff's expert must practice or teach the same particular branch of medicine or surgery. [Woodard, supra at 561-562, 719 N.W.2d 842 (emphasis added).]

Under Woodard's definition of specialist, any physician who can potentially become board-certified in a branch of medicine or surgery in which ...