McElhaney v. Harper-Hutzel Hosp., Docket No. 254376.

• Decision Date: 19 January 2006
• Docket Number: Docket No. 254376.
• Citation: 269 Mich. App. 488,711 N.W.2d 795
• Parties: Jerel McELHANEY, a Minor, by his Next Friend, Stacey McELHANEY, Plaintiff-Appellant/Cross-Appellee, v. HARPER-HUTZEL HOSPITAL, f/k/a Hutzel Hospital, Defendant-Appellee/Cross-Appellant.
• Court: Court of Appeal of Michigan — District of US

711 N.W.2d 795

269 Mich. App. 488

Jerel McELHANEY, a Minor, by his Next Friend, Stacey McELHANEY, Plaintiff-Appellant/Cross-Appellee, v. HARPER-HUTZEL HOSPITAL, f/k/a Hutzel Hospital, Defendant-Appellee/Cross-Appellant.

Docket No. 254376.

Court of Appeals of Michigan.

Submitted August 10, 2005, at Lansing.

Decided January 19, 2006, at 9:10 a.m.

Released for Publication March 31, 2006.

Worsham & Victor, P.C. (by Howard J. Victor and John J. Schutza), Farmington Hills, for the plaintiff.

Kitch Drutchas Wagner DeNardis & Valitutti (by Susan Healy Zitterman), Detroit, for the defendant.

Before: SAAD, P.J., and HOEKSTRA and MARKEY, JJ.

SAAD, P.J.

I

In this medical malpractice action, the dispositive question is whether, under MCL 600.2169, an obstetrician/gynecologist may testify about the standard of care applicable to a nurse midwife. Plaintiff claims that, during his mother's labor, the negligent actions of defendant's nurse midwife caused him mental retardation and other impairments. We hold that the trial court correctly granted summary disposition to defendant because plaintiff failed to establish a genuine issue of material fact regarding the standard of care applicable to a nurse midwife.

Defendant contends that, regardless of whether plaintiff's experts could establish that defendant's midwife caused his injuries, as obstetricians/gynecologists, the experts were not qualified to offer testimony regarding the standard of practice of defendant's nurse midwife. Accordingly, defendant maintains that the trial court correctly granted summary disposition to defendant because plaintiff failed to establish a genuine issue of material fact by admissible evidence.¹ In its cross-appeal, defendant says that the statutorily required affidavit of merit was insufficient because an obstetrician/gynecologist may not testify regarding a nurse midwife, and therefore plaintiff's claim was not properly initiated.

II. Affidavit of Merit: Section 2912d(1)

A medical malpractice claim may be brought against any licensed health care professional, which includes an individual licensed or registered under article 15 of the Public Health Code.² MCL 600.2912; MCL 600.5838a(1); Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 422-423, 684 N.W.2d 864 (2004).³ A nurse midwife is a licensed health care professional under the Public Health Code, which defines "certified nurse midwife" as "an individual licensed as a registered professional nurse under part 172 who has been issued a specialty certification in the practice of nurse midwifery by the board of nursing under section 17210." MCL 333.2701(b). Section 17210, MCL 333.17210, provides that the Board of nursing "may issue a specialty certification to a registered professional nurse who has advanced training beyond that required for initial licensure and who has demonstrated competency through examination or other evaluative processes and who practices in 1 of the following health profession specialty fields: nurse midwifery, nurse anesthetist, or nurse practitioner." A "registered professional nurse" is defined as "an individual licensed under this article to engage in the practice of nursing which scope of practice includes the teaching, direction, and supervision of less skilled personnel in the performance of delegated nursing activities." MCL 333.17201(1)(c); see Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 19, 651 N.W.2d 356 (2002).

Defendant argues that plaintiff's affidavit of merit was defective and, thus, plaintiff failed to successfully initiate a medical malpractice claim. Section 2912d(1), MCL 600.2912d(1), provides that a plaintiff initiating a medical malpractice action "shall 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 section 2169." See also MCR 2.112(L); Geralds v. Munson Healthcare, 259 Mich.App. 225, 232, 673 N.W.2d 792 (2003). The affidavit of merit must include a statement regarding (1) the applicable standard of practice or care, (2) how the applicable standard of practice or care was breached by the health professional or health facility receiving the notice of intent to file a claim, (3) the actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care, and (4) the manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. MCL 600.2912d(1); see Cox, supra, p. 10, 651 N.W.2d 356.

Section 2169(1), MCL 600.2169(1), governs expert witnesses offering testimony regarding the applicable standard of care. Halloran v. Bhan, 470 Mich. 572, 578 n. 6, 683 N.W.2d 129 (2004). Section 2169(1) provides that 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:

(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.

(b) Subject to subdivision (c), 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) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.

(ii) The 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 and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.

(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. [MCL 600.2169(1) (emphasis added); see Decker v. Flood, 248 Mich. App. 75, 81-82, 638 N.W.2d 163 (2001).]

Our courts have interpreted the term "party," against whom testimony is offered, to encompass a hospital party that has been sued under a vicarious liability theory and its agents. See Nippa v. Botsford Gen. Hosp. (On Remand), 257 Mich.App. 387, 396, 668 N.W.2d 628 (2003).

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Halloran, supra, p. 577, 683 N.W.2d 129. The first step is to examine the plain language of the statute itself. In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). The Legislature is presumed to have intended the meaning it plainly expressed. Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002). If the statutory language is clear and unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed, and further judicial construction is not permitted. Atchison v. Atchison, 256 Mich.App. 531, 535, 664 N.W.2d 249 (2003).

The parties agree that nurse midwives do not practice medicine. Accordingly, by the plain meaning of the terms of the statute, we find that § 2169(1)(a) and (c) does not apply because a nurse midwife is neither a specialist nor a general practitioner.⁴ Section 2169(1)(b), however makes no qualification of its applicability and, therefore, must be considered to apply generally to all malpractice actions, including those initiated against nonphysicians. See Halloran, supra, p. 586, 683 N.W.2d 129 (Kelly, J., dissenting); Hamilton v. Kuligowski, 261 Mich.App. 608, 610-611, 684 N.W.2d 366 (2004). Specifically, subsection b(i) states that an expert witness must devote "a majority of his or her professional time" to the "active clinical practice of the same health profession" as the defendant. MCL 600.2169(1)(b)(i) (emphasis added); see Hamilton, supra, p. 610, 684 N.W.2d 366.

The plain language of § 2912d indicates that an affidavit of merit is required in every medical malpractice action, including those initiated against nonphysicians. MCL 600.2912d(1). Pursuant to this section, the plaintiff's attorney must "reasonably believe[]" that the person signing the affidavit of merit "meets the requirements for an expert witness under section 2169." Id.: see Grossman v. Brown, 470 Mich. 593, 599, 685 N.W.2d 198 (2004). In this action, plaintiff's experts must meet the requirements of § 2169(1)(b).

Plaintiff's complaint alleged medical malpractice against defendant for the actions of its "doctors, nurses, a nursing midwife, and residents." Plaintiff attached an affidavit of merit executed by Dr. Ronald G. Zack, an obstetrician/gynecologist. The affidavit of merit focused on the standard of care breached by doctors or physicians and staff, and did not offer an opinion regarding the specific standard of care applicable to or breached by the nurse midwife. As...