Tate ex rel. Estate of Hall v. Detroit Receiving Hospital, Docket No. 225833.

• Decision Date: 04 April 2002
• Docket Number: Docket No. 225833.
• Citation: 249 Mich. App. 212,642 N.W.2d 346
• Parties: Lauren Hall TATE, Personal Representative of the ESTATE OF Robert HALL, Deceased, Plaintiff-Appellant, v. DETROIT RECEIVING HOSPITAL, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

642 N.W.2d 346

249 Mich. App. 212

Lauren Hall TATE, Personal Representative of the ESTATE OF Robert HALL, Deceased, Plaintiff-Appellant, v. DETROIT RECEIVING HOSPITAL, Defendant-Appellee.

Docket No. 225833.

Court of Appeals of Michigan.

Submitted December 5, 2001, at Detroit.

Decided January 15, 2002, at 9:05 a.m.

Released for Publication April 4, 2002.

Edwards & Jennings, P.C. (by Carl R. Edwards), Detroit, for the plaintiff.

Vander Male, Bellamy, Gilchrist, Vande Vusse & Cafferty, P.C. (by Bruce A. Vande Vusse and Joseph E. Kozely), Detroit, for the defendant.

Before: COOPER, P.J., and CAVANAGH and MARKEY, JJ.

COOPER, P.J.

Plaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition and dismissing this medical malpractice action. We reverse and remand.

I. Background Facts and Procedural History

Robert Hall was admitted to defendant hospital after suffering a stroke. During Hall's hospitalization a urinary catheter was inserted. Shortly thereafter, defendant's employees made a notation on Hall's charts regarding a possible urinary tract infection. However, Hall was transferred from defendant hospital without any treatment for this possible infection. On the day of transfer Hall suffered a seizure and went into a coma. Thereafter, Hall's condition slowly deteriorated and he died approximately a month after his stay at defendant hospital.

Plaintiff filed a complaint against defendant hospital, raising general allegations against defendant's employees and agents. Dr. David Lavine, who supervised certain medical students and residents, treated Hall. A third-year medical student noted the presence of bacteria in Hall's urine and indicated a concern about urosepsis. When Hall was transferred from defendant hospital, an obstetrics/gynecology resident noted Hall's temperature of 99.2 degrees. Plaintiff argues that these findings indicate that Hall suffered a urinary tract infection that needed medical attention. She asserts that Hall's seizure and ultimate death were the result of this untreated infection.

In August 1997, plaintiff filed a complaint and an affidavit of merit signed by Dr. Jack Kaufman. The affidavit stated that Dr. Kaufman was board certified and a specialist in internal medicine. In February 1999, defendant moved to disqualify Dr. Kaufman from providing opinion testimony or to limit the scope of his opinion testimony. Defendant argued that Dr. Kaufman was not qualified to render testimony against Dr. Lavine under both MRE 702 and M.C.L. § 600.2169. Dr. Lavine was board certified in internal medicine, critical care medicine, and nephrology. The trial court ultimately granted defendant's motion, concluding that Dr. Kaufman was not board certified in the same specialties as Dr. Lavine and was therefore unqualified to testify.

Defendant moved for summary disposition pursuant to MCR 2.116(C)(7) and (10). The trial court granted defendant's motion for summary disposition and dismissed plaintiff's complaint.

II. Standards of Review

A trial court's decision on a motion for summary disposition is reviewed de novo. Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 678 (2001). In reviewing motions for summary disposition under MCR 2.116(C)(7) and (10), we consider the pleadings, affidavits, depositions, and other documentary evidence submitted by the parties in the light most favorable to the party opposing the motion. See Horace v. City of Pontiac, 456 Mich. 744, 749, 575 N.W.2d 762 (1998); Ardt v. Titan Ins. Co., 233 Mich.App. 685, 688, 593 N.W.2d 215 (1999). Furthermore, statutory construction involves questions of law that are reviewed de novo. Corley v. Detroit Bd. of Ed., 246 Mich.App. 15, 18, 632 N.W.2d 147 (2001). Whether a witness is qualified to render an expert opinion and the actual admissibility of the expert's testimony are within the trial court's discretion. Franzel v. Kerr Mfg. Co., 234 Mich.App. 600, 620, 600 N.W.2d 66 (1999). Such decisions are reviewed on appeal for an abuse of discretion. Id.

III. Analysis

Plaintiff essentially argues that when a health professional is board certified in several specialties, § 2169 should be read so as to allow an expert to testify if that expert is board certified in the same specialty being practiced by the health professional at the time of the alleged malpractice. We agree.

Generally, a trial court determines the need for expert witness testimony pursuant to MRE 702, which provides:

If the court determines that recognized scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

In malpractice actions, each party is obligated to provide an expert witness to articulate the applicable standard of care involved. MCL 600.2912d(1). Moreover, each party's expert witness must file an affidavit of merit as provided in § 2912d. MCR 2.112(L). Section 2912d describes the contents of an affidavit of merit and states that an attorney must reasonably believe that the expert witness meets the requirements of M.C.L. § 600.2169. Section 2169 provides in pertinent 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. [Emphasis supplied.]

Furthermore, to determine the qualifications of an expert witness in a medical malpractice case, subsection 2169(2) requires the court to evaluate (a) the witness' educational and professional training, (b) the witness' area of specialization, (c) the length of time the witness has been engaged in the active clinical practice or instruction of the specialty, and (d) the relevancy of the witness' testimony.

According to our Supreme Court in McDougall v. Schanz, 461 Mich. 15, 24-25, 597 N.W.2d 148 (1999), an expert witness must fulfill the requirements of both § 2169 and MRE 702. Because the statute is more demanding than the evidentiary rule, there may be situations where an expert witness would qualify to testify under MRE 702 but be disqualified under § 2169. McDougall, supra at 24-25, 597 N.W.2d 148. In the instant case the trial court based its ruling solely on the fact that Dr. Kaufman was only board certified in internal medicine. The trial court did not address Dr. Kaufman's qualifications under MRE 702. Therefore, our review is limited to the trial court's conclusions concerning Dr. Kaufman's qualifications under § 2169.

The primary goal in statutory interpretation is to determine and give effect to the intent of the Legislature. Nawrocki v. Macomb Co. Rd. Comm., 463 Mich. 143, 159, 615 N.W.2d 702 (2000). Courts must look to the plain and unambiguous language of a statute and can only go beyond the statutory language if it is ambiguous. Id. In such cases, this Court must seek to give effect to the Legislature's intent through a reasonable construction, considering the purpose of the statute and the object sought to be accomplished. Macomb Co. Prosecutor v. Murphy, 464 Mich. 149,158, 627 N.W.2d 247 (2001).

Subsection 2169(1)(a) specifically states that an expert witness must "specialize[ ] at the time of the occurrence that is the basis for the action" in the same specialty as the defendant physician. The statute further discusses board-certified specialists and requires that experts testifying against or on behalf of such specialists also be "board certified in that specialty." The use of the phrase "at the time of the occurrence that is the basis for the action" clearly indicates that an expert's specialty is limited to the actual malpractice. Moreover, the statute expressly uses the word "specialty," as opposed to "specialties," thereby implying that the specialty requirement is tied to the occurrence of the alleged malpractice and not unrelated specialties that a defendant physician may hold. Indeed, McDougall, supra at 24-25, 597 N.W.2d 148, states that "the statute operates to preclude certain witnesses from testifying solely on the basis of the witness' lack of practice or teaching experience in the relevant specialty." (Emphasis added.)

The trial court in this case failed to correctly interpret and apply the provisions of § 2169. In fact, we find that the trial court's strained reading of the statute actually defeats its true purpose. The Legislature's intent behind the enactment of § 2169 is clear. As...