Nippa v. Botsford Gen. Hosp.

• Decision Date: 10 September 2002
• Docket Number: Docket No. 229113.
• Citation: 651 N.W.2d 103,251 Mich. App. 664
• Parties: Sally NIPPA, Personal Representative of the Estate of Robert Nippa, deceased, Plaintiff-Appellant, v. BOTSFORD GENERAL HOSPITAL, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

651 N.W.2d 103

251 Mich. App. 664

Sally NIPPA, Personal Representative of the Estate of Robert Nippa, deceased, Plaintiff-Appellant, v. BOTSFORD GENERAL HOSPITAL, Defendant-Appellee.

Docket No. 229113.

Court of Appeals of Michigan.

Submitted May 14, 2002, at Detroit.

Decided June 21, 2002, at 9:00 a.m.

Released for Publication September 10, 2002.

Worsham, Victor & Ahmad, P.C. (by Richard B. Worsham), Southfield, for the plaintiff.

Sullivan, Ward, Bone, Tyler & Asher, P.C. (by Ronald S. Lederman and Gerard J. Andree), Southfield, for the defendant.

Before: WHITBECK, C.J., and O'CONNELL and METER, JJ.

O'CONNELL, J.

In this medical malpractice action, plaintiff appeals as of right from the trial court's June 6, 2000, order of involuntary dismissal. We affirm.

Plaintiff initially filed the present action in the Oakland Circuit Court on July 12, 1999, against "Botsford General Hospital Group" alleging that defendant was negligent in its treatment of plaintiff's decedent, Robert Nippa, following a colonoscopy in April 1998.¹ As required by M.C.L. § 600.2912d(1), plaintiff filed with the complaint an affidavit of merit by Arnold Markowitz, M.D. On August 17, 1999, plaintiff filed a first amended complaint against "Botsford General Hospital" that included the same allegations as the initial complaint. On August 26, 1999, defendant filed a motion for more definite statement, arguing that the first amended complaint was "vague, non-specific," and did not give defendant reasonable indication of the nature of the case it was called on to defend. Following a hearing, the trial court granted defendant's motion in an order entered on October 7, 1999.

As a result of the trial court's order, plaintiff filed a second amended complaint on October 13, 1999. In the second amended complaint plaintiff alleged that defendant was liable for Dr. Wiley Fan, Dr. Gerald Blackburn, and Dr. Harris Mainster's negligent treatment of the decedent. Defendant moved for involuntary dismissal of the second amended complaint on April 5, 2000, pursuant to M.C.L. § 2.112(L), arguing that dismissal was warranted on the basis of plaintiff's deficient affidavit of merit. Specifically, defendant contended that the affidavit of merit filed with the original complaint did not comply with M.C.L. § 600.2169(1) because Dr. Markowitz was not board certified in either general surgery or infectious diseases. According to the record, both Dr. Fan and Dr. Blackburn are board certified in infectious diseases, and Dr. Mainster is board certified in general surgery. Although Dr. Markowitz specializes in infectious diseases, he is not board certified in this area of medicine.

In response to defendant's motion, plaintiff argued that pursuant to the plain language of M.C.L. § 600.2169(1)(a), Dr. Markowitz was competent to testify against defendant although he was not board certified in infectious diseases because Dr. Fan, Dr. Blackburn, and Dr. Mainster were not "parties" to the action as set forth in the statute. In other words, plaintiff maintained that because the hospital, the only named defendant to the action, was not board certified in infectious diseases, plaintiff was not required to produce an expert witness with like qualifications. The court conducted a hearing on defendant's motion on May 17, 2000. At the conclusion of the hearing the trial court granted defendant's motion without articulating in detail its reasoning.² Plaintiff now appeals as of right.

We review for an abuse of discretion a trial court's decision to dismiss an action. Vicencio v. Jaime Ramirez, MD, PC, 211 Mich.App. 501, 506, 536 N.W.2d 280 (1995); Zantop Int'l Airlines, Inc. v. Eastern Airlines, 200 Mich.App. 344, 359, 503 N.W.2d 915 (1993). However, the present appeal also requires us to interpret a statutory provision, a question we review de novo. Donajkowski v. Alpena Power Co., 460 Mich. 243, 248, 596 N.W.2d 574 (1999).

The rules of statutory construction are well established. The foremost rule, and [this Court's] primary task in construing a statute, is to discern and give effect to the intent of the Legislature. Murphy v. Michigan Bell Telephone Co., 447 Mich. 93, 98, 523 N.W.2d 310 (1994). See also Nation v. W D E Electric Co., 454 Mich. 489, 494, 563 N.W.2d 233 (1997). This task begins by examining the language of the statute itself. The words of a statute provide "the most reliable evidence of its intent...." United States v. Turkette, 452 U.S. 576, 593, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent. Luttrell v. Dep't of Corrections, 421 Mich. 93, 365 N.W.2d 74 (1984). [Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999).]

In interpreting statutory language, this Court must consider the "plain meaning of the critical word or phrase" as well as its "`placement and purpose'" in the statute. Id. at 237, 596 N.W.2d 574, quoting Bailey v. United States, 516 U.S. 137, 145, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). Further, as Justice Markman, writing for the majority of our Supreme Court recently explained in Robertson v. DaimlerChrysler Corp., 465 Mich. 732, 748, 641 N.W.2d 567 (2002), we must construe the statute at issue in a manner that does not ignore, render nugatory, or treat as surplusage specific words in the legislation. See also Brown v. Genesee Co. Bd. of Comm'rs (After Remand), 464 Mich. 430, 437, 628 N.W.2d 471 (2001); Decker v. Flood, 248 Mich.App. 75, 82, 638 N.W.2d 163 (2001). Likewise, where the statute does not define a word, we are compelled to ascribe to it the common and ordinary meaning. MCL 8.3a; Herald Co. v. Bay City, 463 Mich. 111, 118, 614 N.W.2d 873 (2000); Massey v. Mandell, 462 Mich. 375, 380, 614 N.W.2d 70 (2000). However, where the word is "a legal term of art" that has acquired a particular meaning in the law, we are required to abide by that definition. Id. at 386, 614 N.W.2d 70 (Corrigan, J., concurring); People v. Law, 459 Mich. 419, 425, n. 8, 591 N.W.2d 20 (1999); see also Consumers Power Co. v. Public Service Comm., 460 Mich. 148, 163, 596 N.W.2d 126 (1999).

Moreover, in Brown, supra at 437, 628 N.W.2d 471, our Supreme Court, quoting its earlier decision in Tyler v. Livonia Public Schools, 459 Mich. 382, 390-391, 590 N.W.2d 560 (1999), recently instructed lower courts to ascertain the meaning of a word by examining it carefully in its proper context in the statute: "Contextual understanding of statutes is generally grounded in the doctrine of noscitur a sociis: `[i]t is known from its associates,' see Black's Law Dictionary (6th ed) p. 1060. This doctrine stands for the principle that a word or phrase is given meaning by its context or setting."

The pertinent statutes at issue are found in the Revised Judicature Act (RJA), M.C.L. § 600.101 et seq. As relevant to the present appeal, M.C.L. § 600.2912d(1) provides:

Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney 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 [MCL 600.2169]. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:

(a) The applicable standard of practice or care.

(b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.

(c) 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.

(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.

The statutory provision governing the admission of expert evidence in medical malpractice actions is found in Chapter 21 of the RJA. M.C.L. § 600.2169³ provides:

(1) In an action alleging medical malpractice, 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

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