McDougall v. Schanz

• Decision Date: 30 July 1999
• Docket Number: Docket No. Calendar,Docket No. 107956,Docket No. 2.,Docket No. 1,Docket No. 110707
• Citation: 461 Mich. 15,597 N.W.2d 148
• Parties: Edward McDOUGALL, Personal Representative of the Estate of Sandra M. Mcdougall, Plaintiff-Appellee, v. Larry K. SCHANZ, Family Practice Center, Roger A. Shomo, D.O., P.C., Marvin Coy, D.O., Frederick Broniac, D.O., Garden City Hospital, A. Kania, D.O., and Stephen B. Goldfarb, Defendants, and Reuben D. Eliuk, D.O., Defendant-Appellant. John R. Sobran and Carol S. Sobran, Plaintiffs-Appellants, v. Alasdair McKendrick, M.D., Defendant-Appellee.
• Court: Michigan Supreme Court

597 N.W.2d 148

461 Mich. 15

Edward McDOUGALL, Personal Representative of the Estate of Sandra M. Mcdougall, Plaintiff-Appellee, v. Larry K. SCHANZ, Family Practice Center, Roger A. Shomo, D.O., P.C., Marvin Coy, D.O., Frederick Broniac, D.O., Garden City Hospital, A. Kania, D.O., and Stephen B. Goldfarb, Defendants, and Reuben D. Eliuk, D.O., Defendant-Appellant.

John R. Sobran and Carol S. Sobran, Plaintiffs-Appellants, v. Alasdair McKendrick, M.D., Defendant-Appellee.

Docket Nos. 107956, 110707, Calendar Nos. 1, 2.

Supreme Court of Michigan.

Argued May 5, 1999.

Decided July 30, 1999.

Mark Granzotto, Detroit, Justin C. Ravitz, Southfield, MI and Lakin, Worsham & Victor, P.C. (by Sanford N. Lakin and Ron S. Kirsch) Southfield, MI, for the plaintiff in McDougall.

Granzotto & Nicita, P.C. (by Mark Granzotto), Detroit, MI, for the plaintiffs-appellants in Sobran.

O'Leary, O'Leary, Jacobs, Mattson, Perry & Mason, P.C. (by John P. Jacobs), Southfield, MI, for defendant-appellant Reuben D. Eliuk, D.O.

O'Leary, O'Leary, Jacobs, Mattson, Perry & Mason, P.C. (by John P. Jacobs and Kevin P. Hanbury), Southfield, MI, for defendant-appellee Alastair Mc Kendrick, M.D.

Dickinson, Wright, P.L.L.C. (by John E.S. Scott, Robert W. Powell and Jeffery V. Stuckey), Detroit, MI, and Hugh F. Young, Jr., Reston, Virginia, amicus curiae for Product Liability Advisory Council, Inc.

Bendure & Thomas (by Mark R. Bendure and Kevin P. Kavanagh), Detroit, MI; Sachs, Waldman, O'Hare, Helveston, Bogan & McIntosh, P.C. (by Andrew A. Nickelhoff), Detroit, MI, and Jordan Rossen and Thomas C. Carey, Detroit, MI, amicus curiae for AFL-CIO and the UAW.

Thomas K. Byerley, Lansing, MI, amicus curiae for State Bar of Michigan.

John E. Johnson, Jr., and Richard E. Shaw, Southfield, MI, amicus curiae for Detroit Chapter of NAACP.

Granzotto & Nicita, P.C. (by Angela J. Nicita), Detroit, MI, amicus curiae for Michigan Trial Lawyers Association, Michigan Consumer Federation, Citizens for Better Care, and Brain Injury Associations of Michigan.

Kitch, Drutchas, Wagner & Kenney, P.C. (by Susan Healy Zitterman, Linda M. Garbarino, and Christina A. Ginter), Detroit, MI, amicus curiae for Michigan Health and Hospital Association.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, MI, amicus curiae for PICOM Insurance Company.

Gross, Nemeth & Silverman, P.L.C. (by James G. Gross), Detroit, MI, amicus curiae for Michigan Defense Trial Counsel.

Kerr, Russell & Weber, P.L.C. (by Richard D. Weber and Joanne G. Swanson), Detroit, MI, amicus curiae for Michigan State Medical Society.

Opinion

YOUNG, J.

We granted leave to appeal in these consolidated cases to determine whether M.C.L. § 600.2169; M.S.A. § 27A.2169, which provides strict requirements for the admission of expert testimony in medical malpractice cases brought against specialists, impermissibly infringes this Court's exclusive authority under Const.1963, art. 6, § 5, to promulgate rules governing practice and procedure in Michigan courts. We conclude that § 2169 is an enactment of substantive law. Therefore, we uphold the statute as a valid exercise of the Legislature's public policy-making prerogative.

I. Factual and Procedural Background

A. McDougall

Plaintiff's wife, Sandra McDougall, became ill on August 27, 1990. As a result, Mrs. McDougall visited her family physician who confirmed Mrs. McDougall's belief that she was pregnant. Mrs. McDougall was then referred to an obstetrician-gynecologist, but was eventually sent home. The next day, Mrs. McDougall went to Garden City Hospital complaining of nausea, vomiting, and troubled breathing. She was treated by defendant Reuben Eliuk, D.O., a specialist in internal medicine. However, Mrs. McDougall died, allegedly from resultant complications of undiagnosed diabetes.

In 1991, plaintiff brought suit against Dr. Eliuk, the hospital, and several other physicians. Plaintiff offered Glen Mark Robia, M.D., as his expert to establish the standard of care owed by Dr. Eliuk. Like Dr. Eliuk, Dr. Robia is also board certified in internal medicine. However, he has not practiced in this field for some time. Primarily, Dr. Robia works as a pathologist (as well as serving as chief of staff of a small hospital) and county coroner in Minnesota, where he lives. Dr. Robia testified in his deposition that his full-time, active practice of internal medicine began in 1979 and ended in 1982.¹

The trial court granted Dr. Eliuk's motion in limine to exclude Dr. Robia's testimony on the ground that Dr. Robia was not qualified under M.C.L. § 600.2169; M.S.A. § 27A.2169. At that time, the statute provided, in relevant part, as follows:

(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 or osteopathic medicine and surgery or a dentist licensed to practice dentistry in this or another state 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 or osteopathic medicine and surgery or dentistry 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 osteopathic medicine and surgery or the active clinical practice of dentistry, or to the instruction of students in an accredited medical school, osteopathic medical school, or dental 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, osteopathic medicine and surgery, or dentistry.

(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. [M.C.L. § 600.2169; M.S.A. § 27A.2169.][²]

The court rejected plaintiff's argument that the statute is unconstitutional, concluding instead that § 2169 and MRE 702, governing the admission of expert testimony,³ are complementary.⁴ The Court of Appeals affirmed in part and reversed in part. 218 Mich.App. 501, 554 N.W.2d 56 (1996). The Court of Appeals majority determined that § 2169 conflicts with MRE 702 and, moreover, that the statute is an unconstitutional violation of this Court's rule-making authority. Judge Taylor dissented, arguing that, because § 2169 is "more akin to a substantive law than a procedural rule," id. at 516, 554 N.W.2d 56, it takes precedence over MRE 702. We granted leave to appeal. 456 Mich. 905, 572 N.W.2d 14 (1997).

B. Sobran

Plaintiff⁵ John Sobran was diagnosed with colon cancer in 1976. That same year, plaintiff's personal physician, Dr. Thomas Fox, performed an ileostomy.⁶ Fifteen years later, in 1991, plaintiff began experiencing abdominal pain. He was eventually referred to defendant, Dr. Alasdair McKendrick, a board-certified colorectal surgeon. Defendant diagnosed an ileostomy dysfunction and recommended another surgery to improve the ileostomy. This operation was performed in December 1991, but it did not improve plaintiff's complaint of abdominal pain. After six months of unsuccessful treatment with defendant, plaintiff returned to Dr. Fox.

Dr. Fox performed a sigmoidoscopy⁷ on September 14, 1992. As a result, Dr. Fox found polyps blocking plaintiff's intestinal tract. He performed surgery in January 1993 and successfully removed the polyps.

Plaintiff filed a medical malpractice suit against defendant, alleging that defendant should have performed a sigmoidoscopy in 1991. Plaintiff claimed that, had defendant done so, he would have discovered the polyps over a year before the examination performed by Dr. Fox.

Plaintiff offered Dr. Mark Caminker as his expert to establish the standard of care owed by defendant. While Dr. Caminker is board certified in internal medicine and gastroenterology he is not a colorectal surgeon. However, Dr. Caminker testified in his deposition that internists and surgeons follow the same standards of care for the diagnosis of gastrointestinal problems and for the performance of diagnostic procedures such as sigmoidoscopy.

Shortly before trial was scheduled to begin, defendant sought to exclude Dr. Caminker's proffered expert testimony. Defendant argued in relevant part that Dr. Caminker was not qualified under M.C.L. § 600.2169; M.S.A. § 27A.2169 to testify regarding the standards of care applicable to colorectal surgeons. The trial court granted defendant's motion and, after declining to allow plaintiff additional time to locate another expert, dismissed plaintiff's claim with prejudice.

Plaintiff appealed to the Court of Appeals, raising the constitutionality of M.C.L. § 600.2169; M.S.A. § 27A.2169. The Court acknowledged that § 2169 had been declared unconstitutional by the Court of Appeals panel in McDougall, and that the trial court's ruling was based upon the statute.⁸ Nevertheless, the Court upheld the trial court's ruling on the ground that Dr. Carminker was not qualified under MRE 702, a ground that was neither argued before nor decided by the trial court. We granted leave to appeal, and specifically ordered the parties to address the question whether the statute is invalid as in conflict...