McClellan v. Collar, Docket No. 185809.

• Decision Date: 22 June 2000
• Docket Number: Docket No. 185809.
• Citation: 240 Mich. App. 403,613 N.W.2d 729
• Parties: Daniel McCLELLAN and Ruby McClellan, Plaintiffs-Appellants, v. Alonso COLLAR, M.D., and Thoracic Cardiovascular Institute of Mid-Michigan, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

613 N.W.2d 729

240 Mich. App. 403

Daniel McCLELLAN and Ruby McClellan, Plaintiffs-Appellants, v. Alonso COLLAR, M.D., and Thoracic Cardiovascular Institute of Mid-Michigan, Defendants-Appellees.

Docket No. 185809.

Court of Appeals of Michigan.

Submitted November 23, 1999, at Grand Rapids.

Decided March 31, 2000, at 9:05 a.m.

Released for Publication June 22, 2000.

Farr & Oosterhouse (by Joel E. Krissoff, John R. Oostema, and Michelene B. Pattee), Grand Rapids, for the plaintiffs.

Smith, Haughey, Rice & Roegge (by Lance R. Mather), Grand Rapids, for the defendants.

Before: HOEKSTRA, P.J., and MURPHY and SMOLENSKI, JJ.

ON REMAND

PER CURIAM.

This medical malpractice case is before us on remand from our Supreme Court for reconsideration of a previously decided issue in light of McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999). 461 Mich. 896, 603 N.W.2d 781 (1999). After further review, we affirm our prior decision to reverse the trial court's ruling that Dr. Andrew Rosenblum, a cardiologist, was not qualified to render expert testimony with respect to the issue of the negligence of defendant Dr. Alonso Collar, a cardiovascular surgeon. The facts of this case were set out in our previous opinion, McClellan v. Collar, unpublished opinion per curiam of the Court of Appeals, issued April 11, 1997 (Docket No. 185809):

Plaintiff Daniel McClellan had a history of vascular aortic stenosis. On December 4, 1991, he was examined by Dr. Collar, who recommended that he have aortic valve replacement surgery and scheduled the surgery for December 17, 1991. On December 13, 1991, McClellan's wife, plaintiff Ruby McClellan, drove him to Ingham Medical Center's emergency room because he was experiencing coughing, a runny nose, fever and chills. Dr. Daryl Melvin, an employee of TCI [Thoracic Cardiovascular Institute of Mid-Michigan], admitted McClellan into the hospital. From the time of his admission until the December 17, 1991, surgery, McClellan continued to experience the same symptoms and, although he had a temperature of 101.4 degrees the night before the surgery, Dr. Collar performed the surgery as scheduled. After his discharge on December 25, 1991, McClellan's condition continued to deteriorate in that he could not breathe and he developed an egg-like formation near the top of his chest. On December 29, 1991, Dr. J. Jung operated to alleviate these conditions. Plaintiffs' theory of liability was that McClellan's second surgery was necessary because of Dr. Collar's and Dr. Melvin's negligence in that they improperly went ahead with the first surgery even though McClellan was suffering from a severe infection.

The trial court granted a directed verdict in favor of defendant TCI and, on the same day, granted summary disposition to defendant Dr. Collar.

On appeal, plaintiffs challenged several rulings of the trial court. We reversed all the challenged rulings, including the trial court's ruling that plaintiff's expert, Dr. Rosenblum, was precluded from testifying as an expert witness regarding the issue of Dr. Collar's negligence. With regard to that ruling, we stated:

Plaintiffs first argue that the trial court abused its discretion in ruling that Dr. Rosenblum was not qualified as an expert in cardiovascular pre- and post-operative care of patients or in the decision making processes of a cardiovascular surgeon. We agree. MRE 702 governs the determination of whether Dr. Rosenblum was qualified to testify as an expert witness in matters relating to cardiovascular surgery. McDougall v. Eliuk, 218 Mich.App. 501, 507, 554 N.W.2d 56 (1996). In this case, plaintiff demonstrated Dr. Rosenblum's knowledge of the applicable standard of care where Dr. Rosenblum testified that based on his experience he was familiar with the applicable national standard of practice governing cardiovascular surgeons. Id. at 508, 554 N.W.2d 56; Carlton v. St. John Hosp., 182 Mich.App. 166, 171-172, 451 N.W.2d 543 (1989). Any gaps or weaknesses in Dr. Rosenblum's expertise are a proper subject for cross-examination and go to the weight to be accorded his testimony, not its admissibility. People v. Gambrell, 429 Mich. 401, 408, 415 N.W.2d 202 (1987); People v. Whitfield, 425 Mich. 116, 123-124, 388 N.W.2d 206 (1986).

We utilized MRE 702 in our analysis because in McDougall v. Eliuk, supra at 507, 554 N.W.2d 56, a panel of this Court determined that § 2169 of the Revised Judicature Act, M.C.L. § 600.2169; MSA 27A.2169, was unconstitutional to the extent that it conflicted with MRE 702.

After our opinion was released in this case, defendants filed an application to the Supreme Court, raising two substantive issues: (1) whether § 2169 is constitutional and applicable when determining whether an expert may testify in a medical malpractice action and (2) whether, pursuant to § 2169, Dr. Rosenblum was actually qualified to act as an expert against Dr. Collar.¹ Defendants' application was held in abeyance, because the Supreme Court already had other cases concerning the constitutionality of § 2169 pending before it.

In July 1999, the Supreme Court released its opinion in McDougall v. Schanz, supra. In that case, the Court reviewed the issue whether § 2169 or MRE 702 governs a determination of when an expert is qualified to testify in a medical malpractice case. The Court held that MRE 702 must yield to § 2169 because the statute is an enactment of substantive law, which has, as its basis, a principle other than the orderly dispatch of judicial business or court administration. McDougall v. Schanz, supra at 35, 597 N.W.2d 148. See also People v. Conat, 238 Mich.App. 134, 163, 605 N.W.2d 49 (1999). On October 26, 1999, the Supreme Court remanded this case for our reconsideration in light of its decision in McDougall v. Schanz, supra.

As applicable to this case, § 2169 states in relevant part:

(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 ... and meets both of the following criteria:

(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... as the specialist who is the defendant in the medical malpractice action.

(b) Devotes, or devoted at the time of the occurrence which is the basis for the action, a substantial portion of his or her professional time to the active clinical practice of medicine ... or to the instruction of students in an accredited medical school ... in the same specialty or a related, relevant area of health care as the specialist who is the defendant in the medical malpractice action.

(2) In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following:

(a) The educational and professional training of the expert witness.

(b) The area of specialization of the expert witness.

(c) The length of time the expert witness has been engaged in the active clinical practice or instruction of medicine....

(d) The relevancy of the expert witness's testimony.

(3) This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.[²] [Emphasis added.]

In order to find that Dr. Rosenblum is qualified under § 2169, we have to determine that he specializes in "a related, relevant area of medicine" and that he either spends a substantial portion of his professional time practicing medicine or teaching medical students in a "related, relevant area of health care." The meanings of the phrases "related, relevant area of medicine" and "related, relevant area of health care" are key issues to the determination in this case. In that regard, this case presents an issue of first impression. There are no published cases previously interpreting the meaning of the statutory language at issue.

Issues of statutory interpretation are reviewed de novo as issues of law. In re MCI Telecommunications Complaint, 460 Mich. 396, 413, 596 N.W.2d 164 (1999).

In statutory interpretation, the primary goal must be to ascertain and give effect to the Legislature's intent, and the judiciary should presume that the Legislature intended a statute to have the meaning that it clearly expresses. A court should not speculate about the legislative intent beyond the statute's actual words. [Novak v. Nationwide Mut. Ins. Co., 235 Mich.App. 675, 685-686, 599 N.W.2d 546 (1999) (citations omitted).]

In other words, the Legislature is presumed to intend the meaning it plainly expressed. Rheaume v. Vandenberg, 232 Mich.App. 417, 422, 591 N.W.2d 331 (1998). Unless a word or phrase is explicitly defined in a statute, every word or phrase should be accorded its plain and ordinary meaning, taking into account the context in which the words are used. Bio-Magnetic Resonance, Inc. v. Dep't of Public Health, 234 Mich.App. 225, 229, 593 N.W.2d 641 (1999). When construing a statute, this Court should presume that each word has some meaning and should "avoid any construction that would render the statute, or any part of it, surplusage or nugatory." Karpinsky v. St. John Hosp.-Macomb Center Corp., 238 Mich.App. 539, 543, 606 N.W.2d 45 (1999), citing Helder v. North Pointe Ins. Co., 234 Mich.App. 500, 504, 595 N.W.2d 157 (1999).

The term "related" is defined as "associated" or "connected." Random House Webster's College Dictionary (1997), p. 1097. The term "relevant" means "having practical value or applicability" or "bearing on the matter at hand; pertinent." Id. at 1098....