Robins v. Garg

• Court: Court of Appeal of Michigan
• Writing for the Court: Borrello
• Citation: Robins v. Garg, 741 N.W.2d 49, 276 Mich. App. 351 (Mich. App. 2007)
• Decision Date: 26 July 2007
• Docket Number: Docket No. 256169.
• Parties: Michael ROBINS, Personal Representative of the Estate of Ilene Robins, Deceased, Plaintiff-Appellant, v. Tilak GARG, Defendant-Appellee (On Remand).

741 N.W.2d 49

276 Mich. App. 351

Michael ROBINS, Personal Representative of the Estate of Ilene Robins, Deceased, Plaintiff-Appellant, v. Tilak GARG, Defendant-Appellee (On Remand).

Docket No. 256169.

Court of Appeals of Michigan.

Submitted June 18, 2007, at Lansing.

Decided July 26, 2007, at 9:10 a.m.

Released for Publication October 26, 2007.

Podolsky and Associates, P.C. (by Arnold M. Podolsky), Birmingham, and Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, for the plaintiff.

Fraser Trebilcock Davis & Dunlap, P.C. (by Graham K. Crabtree), Lansing, for the defendant.

Before: COOPER, P.J., and FORT HOOD and BORRELLO, JJ.

BORRELLO, J.

Plaintiff Michael Robins, the personal representative of the estate of decedent Ilene Robins, appeals as of right the trial court's order granting summary disposition in favor of defendant. Previously, in a published opinion, we reversed the trial court's grant of summary disposition in favor of defendant and remanded. Robins v. Garg, 270 Mich.App. 519, 716 N.W.2d 318 (2006). In lieu of granting leave to appeal, our Supreme Court vacated our opinion and remanded the case to use for reconsideration in light of Woodard v. Custer, 476 Mich. 545, 719 N.W.2d 842 (2006). Robins v. Garg, 478 Mich. 862, 731 N.W.2d 408 (2007). On remand, we again reverse and remand.

Defendant Tilak Garg, M.D., a general practitioner, operated a walk-in clinic in Keego Harbor, Michigan. He began seeing Ilene Robins as a patient in January 1986. At that time, Dr. Garg noted that Robins was at risk for heart disease because she had the following risk factors: a family history of heart disease, high cholesterol, and a history of smoking (although Robins told Dr. Garg during her first appointment that she had just quit smoking). Dr. Garg did not refer Robins to a cardiologist in 1986, but he did order her to undergo a stress test, an electrocardiogram (EKG), and blood tests to determine, among other things, her cholesterol level. Dr. Garg diagnosed Robins with asthma in 1987. He did not order another stress test at this time. According to Dr. Garg's deposition, by 1987, Robins visited Dr. Garg's clinic as needed to get prescription refills, and she was usually in a hurry to get her prescriptions refilled and leave. This pattern apparently continued for a number of years.

In 1998, Dr. Garg checked Robins's cholesterol level for the first time since 1986. The test revealed that Robins's cholesterol level was still high. Dr. Garg advised Robins to follow a low-cholesterol diet and to return for more testing, which was performed in July 1998. Dr. Garg asserted that in 1998 he referred Robins to a cardiologist (although this referral was not documented in Robins's medical chart) and prescribed Lipitor to control her cholesterol level. According to Dr. Garg, he planned to refill Robins's prescription for Lipitor in October 1998, but did not do so because Robins informed him that she had not taken the medication. Instead of Lipitor, Dr. Garg prescribed Zocor for Robins to control her cholesterol level. On at least two occasions in 1999, Robins returned to Dr. Garg to have prescriptions refilled, but she never asked for refills of her cholesterol medication, and her medical chart indicated that she was "[n]ot taking cholesterol medicine" and that she did "not want to take it." Dr. Garg did not order or perform any other testing for Robins's heart or cholesterol problems from that date forward, despite the fact that Robins continued to seek treatment from Dr. Garg for various ailments.

On June 1, 2001, Robins came to Dr. Garg's clinic because she was experiencing pain in her chest and back. She stated that she had experienced the same pain once the day before and once a week before. Dr. Garg testified that Robins complained of severe pain and that he and an office assistant took her to the EKG room. Dr. Garg testified that he told the receptionist to call an ambulance because Robins's pain was so severe. Before the ambulance arrived, however, Robins went into cardiac arrest as Dr. Garg was connecting the EKG leads. She stopped breathing, and she had no pulse. Dr. Garg performed cardiopulmonary resuscitation until the ambulance arrived, but his efforts to revive her were unsuccessful, and Robins died at the hospital.

Plaintiff filed a medical malpractice lawsuit against Dr. Garg and attached to his complaint the affidavit of Marvin Werlinsky, D.O., a licensed family practitioner in Florida. Dr. Werlinsky is board-certified in family practice by the American College of Osteopathic Family Physicians. Defendant moved to strike Dr. Werlinsky as plaintiff's expert on the standard of care, arguing that Dr. Werlinsky was not a general practice physician like defendant and that Dr. Werlinsky was not familiar with the standard of care in the geographical area where Dr. Garg practices medicine. The trial court agreed and struck Dr. Werlinsky as plaintiff's expert on the standard of care. Defendant then moved for summary disposition, arguing that because Dr. Werlinsky had signed plaintiff's affidavit of merit and was unqualified to do so, plaintiff's claim was not filed within the period of limitations and that plaintiff could not prove causation. The trial court granted defendant's motion for summary disposition on the grounds of both causation and the statute of limitations.

Plaintiff first argues that the trial court erred in striking his standard-of-care expert, Dr. Werlinsky, under MCL 600.2912a(1)(a). We review a trial court's decision regarding the qualification of an expert for an abuse of discretion. Tate v. Detroit Receiving Hosp., 249 Mich.App. 212, 215, 642 N.W.2d 346 (2002). MCL 600.2912a(1)(a) provides that a plaintiff must show that

[t]he defendant, if a general practitioner, 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, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.

"An expert familiar with the standard of care in a community may testify concerning the standard of care in that community, although he has not practiced in the community." Bahr v. Harper-Grace Hosps., 448 Mich. 135, 141, 528 N.W.2d 170 (1995). Additionally, the statute does not require a nonlocal expert "to contact physicians in one area to determine the applicable standard of care in that community or to determine whether that community is similar to another community." Turbin v. Graesser (On Remand), 214 Mich.App. 215, 219, 542 N.W.2d 607 (1995).

In this case, Dr. Werlinsky testified in his deposition that his practice was located in Palm Beach County, Florida. Defendant's clinic was located in Oakland County, Michigan. However, plaintiff submitted evidence to the trial court that Oakland County and Palm Beach County were similar in population size and had a similar number of hospitals and family practice physicians. Dr. Werlinsky testified that he interacted with general practitioners from throughout the country and believed that the way he practiced medicine was similar to the way a physician practiced medicine in Michigan. Because plaintiff presented evidence that Dr. Werlinsky was familiar with the standard of care for an area similar to where defendant practiced, Bahr, supra at 142, 528 N.W.2d 170, and because Dr. Werlinsky testified that he practiced medicine similarly to the way it was practiced in Michigan, Dr. Werlinsky was qualified to give testimony under MCL 600.2912a(1)(a). Thus, the trial court abused its discretion by ruling that Dr. Werlinsky was not qualified under MCL 600.2912a(1)(a).

Plaintiff next argues that the trial court erred by concluding that his affidavit of merit failed to comply with MCL 600.2169 because Dr. Werlinsky was not qualified to give expert testimony against Dr. Garg.¹ We agree.

In a medical malpractice action, the plaintiff's expert's qualifications must match the qualifications of the defendant. MCL 600.2169(1); Decker v. Flood, 248 Mich.App. 75, 85, 638 N.W.2d 163 (2001). MCL 600.2169 provides, in relevant part:

(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 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...