Woodard v. Custer, Docket No. 124994.

CourtSupreme Court of Michigan
Citation719 N.W.2d 842,476 Mich. 545
Docket NumberCOA No. 3.,COA No. 2.,Docket No. 124994.,Docket No. 124995.,Docket No. 126275.
PartiesJohanna WOODARD, Individually and as Next friend of Austin D. Woodard, a Minor, and Steven Woodard, Plaintiffs-Appellees and Cross-Appellants, v. Joseph R. CUSTER, M.D., Defendant-Appellant and Cross-Appellee and Michael K. Lipscomb, M.D., Michelle M. Nypaver, M.D., and Mona M. Riskalla, M.D., Defendants. Johanna Woodard, Individually and as Next Friend of Austin D. Woodard, a Minor, and Steven Woodard, Plaintiffs-Appellees and Cross-Appellants, v. University of Michigan Medical Center, Defendant-Appellant and Cross-Appellee. Shirley Hamilton, as Personal Representative of the Estate of Rosalie Ackley, Plaintiff-Appellee, and Blue Cross Blue Shield, Intervening Plaintiff, v. Mark F. Kuligowski, D.O., Defendant-Appellant.
Decision Date31 July 2006

Nemier, Tolari, Landry, Mazzeo & Johnson, P.C. (by Craig L. Nemier, Michelle E. Mathieu, and Nancy Vayda Dembinski), and Mark R. Granzotto, Farmington Hills, Royal Oak, for Johanna and Steven Woodard.

McKeen & Associates, P.C. (by Brian J. McKeen and Ramona C. Howard), Detroit, for Shirley Hamilton.

Hebert, Eller & Chandler, P.L.L.C. (by Kevin P. Hanbury), and Smith Haughey Rice & Roegge (by Richard C. Kraus), Bingham Farms, East Lansing, for Joseph R. Custer, and University of Michigan Medical Center.

Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Raymond W. Morganti), Southfield, for Mark F. Kuligowski.

John J. Hays, East Lansing, for Blue Cross and Blue Shield of Michigan.

Butzel Long (by Max R. Hoffman, Jr.; M. Brian Cavanagh; and Debra A. Geroux) and Kirkland & Ellis L.L.P. (by James W. Rankin and Angela B. Frye), Lansing, Chicago, IL, for amici curiae American Board of Pediatrics.

Butzel Long (by Max R. Hoffman, Jr.; M. Brian Cavanagh; and Debra A. Geroux) and Johnson & Bell, Ltd. (by William K. McVisk), Lansing, Chicago, IL, for amici curiae American Board of Medical Specialties.

Kerr, Russell and Weber, P.L.C. (by Joanne Geha Swanson and Daniel J. Schulte), Detroit, for amici curiae Michigan State Medical Society.

Mark R. Bendure, Detroit, for amici curiae Michigan Trial Lawyers Association.

Wildman, Harrold, Allen & Dixon L.L.P. (by Douglas R. Carlson and Douglas L. Prochnow), Chicago, IL, for amici curiae Accreditation Council for Graduate Medical Education.

MARKMAN, J.

We granted leave to appeal in these two cases to consider whether plaintiffs' proposed expert witnesses are qualified under MCL 600.2169(1) to give expert testimony on the appropriate standards of medical practice or care. The trial courts in both cases ruled that plaintiffs' expert witnesses are not qualified under § 2169(1). In Woodard, the Court of Appeals affirmed the trial court's ruling on this issue, and, in Hamilton, the Court of Appeals reversed the trial court's decision. We conclude that the trial courts did not abuse their discretion in concluding that plaintiffs' proposed expert witnesses are not qualified under § 2169(1). Therefore, in Woodard, we affirm the part of the Court of Appeals judgment that held that plaintiffs' proposed expert is not qualified and remand to the trial court for reentry of its order dismissing plaintiffs' claim with prejudice. In Hamilton, we reverse the Court of Appeals judgment and remand to the trial court for reentry of its order granting a directed verdict to defendant.1

I. FACTS AND PROCEDURAL HISTORY
A. WOODARD v. CUSTER

We summarized the facts underlying this case in our recent decision in Woodard v. Custer, 473 Mich. 1, 3-5, 702 N.W.2d 522 (2005) (Woodard I):

Plaintiffs' fifteen-day-old son was admitted to the Pediatric Intensive Care Unit (PICU) at the University of Michigan Hospital, where he was treated for a respiratory problem. During his stay in the PICU, he was under the care of Dr. Joseph R. Custer, the Director of Pediatric Critical Care Medicine. When the infant was moved to the general hospital ward, physicians in that ward discovered that both of the infant's legs were fractured. Plaintiffs sued Dr. Custer and the hospital, alleging that the fractures were the result of negligent medical procedures, namely, the improper placement of an arterial line in the femoral vein of the infant's right leg and the improper placement of a venous catheter in the infant's left leg.

Defendant physician is board-certified in pediatrics and has certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine. Plaintiffs' proposed expert witness, who signed plaintiffs' affidavit of merit, is board-certified in pediatrics, but does not have any certificates of special qualifications.

Before discovery, the trial court denied defendants' motion for summary disposition, concluding that plaintiffs' attorney had a "reasonable belief" under MCL 600.2912d(1) that plaintiffs' proposed expert witness was qualified under MCL 600.2169 to testify against the defendant physician, and, thus, that plaintiffs' affidavit of merit was sufficient. After discovery, the trial court granted defendants' motion to strike plaintiffs' expert witness on the basis that he was not actually qualified under MCL 600.2169 to testify against the defendant physician. The trial court dismissed plaintiffs' claim with prejudice, concluding that plaintiffs could not reach a jury without expert testimony.

The Court of Appeals affirmed the trial court's ruling that plaintiffs' proposed expert witness was not qualified under MCL 600.2169 to testify against the defendant physician (Judge Borrello dissented on this issue), but reversed the trial court's dismissal on the basis that expert testimony was unnecessary under the doctrine of res ipsa loquitur, i.e., an inference of negligence may be drawn from the fact that the infant was admitted to the PICU with healthy legs and discharged from the PICU with fractured legs (Judge Talbot dissented on this issue). Unpublished opinion per curiam, issued October 21, 2003, 2003 WL 22399520 (Docket Nos. 239868-239869). The case was remanded for trial.

Defendants sought leave to appeal the Court of Appeals decision that res ipsa loquitur applies and that expert testimony was not necessary. Plaintiffs sought leave to cross-appeal the Court of Appeals decision that their proposed expert witness was not qualified under MCL 600.2169 to testify against the defendant physician. We heard oral argument on whether to grant the applications or take other peremptory action permitted by MCR 7.302(G)(1). 471 Mich. 890, 687 N.W.2d 298 (2004).

In Woodard I, we addressed defendants' application for leave to appeal and held that expert testimony is necessary in this case. At the same time, we granted plaintiffs' cross-application for leave to appeal to address whether plaintiffs' proposed expert witness is qualified under MCL 600.2169(1), which is the subject of the instant opinion. 473 Mich. 856, 701 N.W.2d 133 (2005).2

B. HAMILTON v. KULIGOWSKI

Plaintiff alleges that the defendant physician failed to properly diagnose and treat the decedent while she exhibited prestroke symptoms. The defendant physician is board certified in general internal medicine and specializes in general internal medicine. Plaintiff's proposed expert witness is board certified in general internal medicine and devotes a majority of his professional time to treating infectious diseases, a subspecialty of internal medicine. The trial court granted defendant's motion for a directed verdict on the basis that plaintiff's expert is not qualified to testify against the defendant physician because plaintiff's expert specializes in infectious diseases and did not devote a majority of his professional time to practicing or teaching general internal medicine. The Court of Appeals reversed, concluding that plaintiff's expert is qualified to testify against the defendant physician because both plaintiff's proposed expert witness and the defendant physician specialize in internal medicine and because plaintiff's proposed expert did devote a majority of his professional time to the practice of internal medicine given that the treatment of infectious diseases is a subspecialty of internal medicine. 261 Mich.App. 608, 684 N.W.2d 366 (2004). We granted defendant's application for leave to appeal. 473 Mich. 858, 701 N.W.2d 134 (2005).3

II. STANDARD OF REVIEW

These cases both involve the interpretation of MCL 600.2169(1). This Court reviews questions of statutory interpretation de novo. Halloran v. Bhan, 470 Mich. 572, 576, 683 N.W.2d 129 (2004). However, this Court reviews a trial court's rulings concerning the qualifications of proposed expert witnesses to testify for an abuse of discretion. Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 16 n. 16, 651 N.W.2d 356 (2002). An abuse of discretion occurs when the decision results in an outcome falling outside the principled range of outcomes. Novi v. Robert Adell Children's Funded Trust, 473 Mich. 242, 254, 701 N.W.2d 144 (2005).

III. ANALYSIS

MCL 600.2169 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...

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