SALLY NIPPA V BOTSFORD GENERAL HOSP
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STATE OF MICHIGAN
COURT OF APPEALS
SALLY NIPPA, Personal Representative of
The Estate of ROBERT NIPPA, deceased,
FOR PUBLICATION
July 3, 2003
9:05 a.m.
Plaintiff-Appellant,
v
No. 229113
Oakland Circuit Court
LC No. 99-016078-NH
ON REMAND
Updated Copy
August 15, 2003
BOTSFORD GENERAL HOSPITAL,
Defendant-Appellee.
Before: Whitbeck, C.J., and O'Connell and Meter, JJ.
WHITBECK, C.J. (dissenting).
Once again I respectfully dissent. The majority states that it is applying the logic of a
recent Michigan Supreme Court opinion, Cox v Flint Bd of Hosp Managers,1 to this case. The
legal issue here is whether, under MCL 600.2169, a plaintiff suing a hospital, and only a hospital,
under a theory of vicarious liability is required to file an affidavit of merit signed by a physician
who is board-certified in the specialty or specialties of the agent or agents of the hospital that the
plaintiff claims engaged in medical malpractice. One can apply the logic of Cox to this legal
issue to reach the majority's result only if one is willing to amend MCL 600.2169 so that the term
"party" in that statute includes the term "agent." This Court is not a super-Legislature nor should
it endeavor to do that which the Legislature did not do in order to make the statute less illogical
and thereby more sensible. Accordingly, I would reverse the trial court's grant of involuntary
dismissal and remand.
I. Basic Facts And Procedural History
Sally Nippa (Nippa) sued Botsford General Hospital, and only Botsford General Hospital,
in her capacity as the personal representative of Robert Nippa's estate. In her second amended
complaint, Nippa alleged that Botsford was liable for the negligent treatment Drs. Wiley Fan,
Gerald Blackburn, and Harris Mainster rendered to Robert Nippa. As the language of Nippa's
1
Cox v Flint Bd of Hosp Managers, 467 Mich 1; 651 NW2d 356 (2002).
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second amended complaint makes clear,2 Nippa was proceeding under a theory of vicarious
liability and was attributing the allegedly negligent acts of Drs. Fan, Blackburn, and Mainster, as
agents, to Botsford, as the principal.
With her original complaint, Nippa filed an affidavit of merit from Dr. Arnold
Markowitz. Botsford sought dismissal under MCR 2.112(L). Although Dr. Markowitz is boardcertified in internal medicine, Botsford pointed out that Drs. Fan and Blackburn are boardcertified in infectious diseases and Dr. Mainster is board-certified in general surgery;
accordingly, Dr. Markowitz's board-certified specialty is not the same as those of Drs. Fan,
Blackburn, and Mainster. In essence, Botsford argued that while Drs. Fan, Blackburn, and
Mainster were themselves not parties, it was their alleged negligence that was being imputed to
the hospital under a theory of vicarious liability. Therefore, Botsford argued, MCL
600.2169(1)(a) required Dr. Markowitz's board-certified specialties to match those of the
allegedly offending physicians.
The trial court agreed and granted involuntary dismissal of the second amended
complaint. Nippa then appealed the trial court's order granting involuntary dismissal to this
Court. The majority of the first Nippa panel agreed with Botsford and the trial court, and
affirmed.3 The majority described Nippa's contention as follows:
[Nippa] raises a novel, yet ultimately unsuccessful, legal argument
concerning the proper interpretation of the word "party" in § 2169. Put rather
simply, the thrust of [Nippa's] argument is that the word "party" refers only to
those litigants who are parties of record. Therefore, according to [Nippa], because
the board-certified physicians who treated [Nippa's] decedent are not named in the
action, [Nippa], by virtue of her artful drafting of the second amended complaint,
is absolved from complying with the requirements of § 2169.[4]
2
Paragraph 11, relating to Nippa's allegation of negligence in Count II of her complaint, stated:
That at all times relevant herein, defendant, BOTSFORD HOSPITAL, by
its employees, agents, servants, officers and/or representatives, owed a duty to the
plaintiff 's decedent, ROBERT NIPPA, as a primary medical care facility, and that
said duty was breached by a deviation from the standard of practice of medicine,
proximately causing the damages stated herein . . . . [Emphasis supplied.]
3
Nippa v Botsford Gen Hosp, 251 Mich App 664; 651 NW2d 103 (2002) (Nippa I).
4
Id. at 672.
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The majority then went on to conclude, in essence, that the word "party" as used by the
Legislature in MCL 600.2169 did not mean a "party" as defined in Black's Law Dictionary.5 The
majority supported this conclusion as follows:
In spite of the unique meaning the word "party" has acquired in the law,
we do not agree with [Nippa] that by referring to "party," the Legislature indicated
its intention that the requirement that an expert witness share the same board
certification as one he intends to testify against extend (sic) only to named parties
to the record. In the instant case, a careful review of the second amended
complaint reflects that [Nippa] is alleging liability on the part of [Botsford] under
a theory of vicarious liability. As our Supreme Court observed in Theophelis v
Lansing General Hosp, 430 Mich 473, 483; 424 NW2d 478 (1988) (Griffin, J.),
"[v]icarious liability is indirect responsibility imposed by operation of law."
Further, a master may not be held liable under a vicarious liability theory where
the servant is not liable. Rogers v J B Hunt Transport, Inc, 244 Mich App 600,
608; 624 NW2d 532 (2001), lv gtd 465 Mich [903] (2001). This is because the
principal has not committed a tortious act, and is therefore not a "tortfeasor."
Theophelis, supra at 483.
In our view, the acceptance of [Nippa's] interpretation of the statute would
"effectively repeal" § 2169, rendering it nugatory and meaningless, an
interpretation that this Court must avoid. Scarsella v Pollak, 461 Mich 547, 550;
607 NW2d 711 (2000). Similarly, if we were to accept [Nippa's] argument,
plaintiffs in medical malpractice actions could routinely avoid the requirements of
§ 2169 by declining to name individual physicians as defendants. In a different
context, our Supreme Court has expressed its dissatisfaction with such
gamesmanship, specifically where parties draft pleadings to avoid the procedural
medical malpractice requirements. Dorris v Detroit Osteopathic Hosp Corp, 460
5
The majority in Nippa I, supra at 674, quoted the following definition of a "party" from Black's
Law Dictionary (6th ed), p 1122:
"A person concerned or having or taking part in any affair, matter,
transaction, or proceeding, considered individually. A party to an action is a
person whose name is designated on record as plaintiff or defendant. Term, in
general, means one having right to control proceedings, to make defense, to
adduce and cross-examine witnesses, and to appeal from judgment.
"Party is a technical word having a precise meaning in legal parlance; it
refers to those by or against whom a legal suit is brought, whether in law or in
equity, the party plaintiff or defendant, whether composed of one or more
individuals and whether natural or legal persons; all others who may be affected
by the suit, indirectly or consequently, are persons interested but not parties."
[Emphasis supplied; citations and internal quotation marks omitted.]
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Mich 26, 43-47; 594 NW2d 455 (1999); see also Stover v Garfield, 247 Mich App
456, 467-469; 637 NW2d 221 (2001) (O'Connell, J., dissenting).[6]
Dissenting, I placed particular emphasis on Justice Markman's statement in Robertson v
DaimlerChrysler Corp,7 that "[W]e believe that it is the constitutional duty of this Court to
interpret the words of the lawmaker, in this case the Legislature, and not to substitute our own
policy preferences in order to make the law less 'illogical.'"8 I stated that, in my view, the
majority had disregarded the plain language of the law in order to avoid reaching what it
considered to be an absurd result.9 I noted that the word "party" is a legal term of art that has
acquired a particular meaning in the law—quoting Black's Law Dictionary for the proposition
that the word party "'refers to those by or against whom a legal suit is brought, whether in law or
in equity, the party plaintiff or defendant'"—and contended that, while Drs. Fan, Blackburn, and
Mainster may be interested persons and may be Botsford's agents, they are not party defendants.10
I also noted that by, in essence, amending the plain words of the statute, the majority was
substituting its policy preferences for those of the Legislature, all to make the statute less
illogical.11 I observed that the majority's policy preference was clear: that a plaintiff should be
required to file affidavits of merit signed by board-certified physicians whose specialties match
those of the individual physicians who are not parties but for whose alleged negligence the
plaintiff seeks to hold a party defendant hospital accountable under a theory of derivative12
liability.13 Such approach would be my policy preference as well, but I concluded that "[t]he
problem, of course, is that this is not the policy preference that the Legislature expressed in the
clear and unambiguous words of the statute."14
Nippa then filed an application for leave to appeal to the Supreme Court. In lieu of
granting leave to appeal, the Supreme Court vacated the judgment of this Court in Nippa I and
remanded to this Court for reconsideration in light of Cox, supra. The Supreme Court stated:
A hospital may be vicariously liable for the negligence of its agents [citing
Cox, supra at 11]. In Cox, the Court stated that a "hospital's vicarious liability
6
Id. at 675-676.
7
Robertson v DaimlerChrysler Corp, 465 Mich 732; 641 NW2d 567 (2002).
8
Id. at 758 (emphasis in the original).
9
Nippa I, supra at 680.
10
Id. at 686.
11
Id. at 690-691.
12
I used the term "derivative" liability as a synonym for "vicarious" liability.
13
Id. at 689-690.
14
Id. at 690.
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arises because the hospital is held to have done what its agents have done." Id. at
15. Even when the hospital is the only named defendant, the issue remains
whether the hospital's agents violated the standard of care applicable to them. Id.
at 5, 14-15.[15]
The majority, not surprisingly, now reaches the conclusion that Cox supports its decision
in Nippa I.16 It concludes that the Supreme Court remanded this case for us to apply the logic of
Cox to the present case17 and states that:
Applying the logic of Cox to the present case, we hold that the standard of
care applicable to the hospital is the same standard of care that is applicable to the
physicians named in the complaint. For all practical purposes, the hospital stands
in the shoes of its agents (the doctors).
* * *
All procedural requirements are applicable to the hospital in the same
manner and form as if the doctor were a named party to the lawsuit. This is so
because the law creates a practical identify between a principal and an agent, and,
by a legal fiction, the hospital is held to have done what its agents have done
[citing Cox, supra at 11]. It would be absurd to have one set of legal rules for a
hospital and another set of legal rules for its agents.[18]
The majority then concludes that, because Botsford's physicians involved in this matter
are board-certified in general surgery and infectious diseases while Nippa's expert is not boardcertified in either specialty, the trial court properly dismissed the complaint.19
II. Applying The Logic Of Cox To The Facts Of This Case
I first note that Cox did not deal at all with an interpretation of MCL 600.2169. Rather, it
dealt with the propriety of a jury instruction relating to the neonatal intensive-care unit at Hurley
Medical Center. When the trial court instructed the jury, it significantly modified SJI2d 30.01.
The trial court stated:
15
Nippa v Botsford Gen Hosp, 468 Mich 881 (2003) (vacating and remanding in lieu of granting
leave to appeal).
16
Ante at ___.
17
Ante at ___.
18
Ante at ___, citing, as an example, Houghton Lake Area Tourism & Convention Bureau v
Wood, 255 Mich App 127, 142-143, 150; 662 NW2d 758 (2003) (statutory construction should
avoid an illogical or absurd result).
19
Ante at ___.
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"When I use the words professional negligence or malpractice with respect
to the Defendant's conduct, I mean the failure to do something which a hospital
neonatal intensive care unit would do or the doing of something which a hospital
neonatal intensive care unit would not do under the same or similar circumstances
you find to exist in this case.
"It is for you to decide, based upon the evidence, what the hospital
neonatal intensive care unit with the learning, judgment or skill of its people
would do or would not do under the same or similar circumstances."[20]
The Supreme Court held that this modified instruction was in error and that this error was
not harmless.21 It noted that the jury instruction, as modified, eliminated any reference to any
particular profession, person, or specialty and substituted, instead, the phrase "neonatal intensive
care unit." It also noted that the modified jury instruction also failed to differentiate between the
various standards of care applicable to different professions and specialties.22 It further noted
that because no evidence of record existed that the neonatal intensive-care unit itself is capable of
any independent actions, including negligence, "it follows that the unit itself could not be the
basis for [the hospital's] vicarious liability.23
The Supreme Court discussed the concept of vicarious liability, stating that a hospital
may be vicariously liable for the negligence of its agents24 and that even when the hospital is the
only named defendant, the issue remains whether the hospital's agents violated the standard of
care applicable to them.25 The Court then held that in order to find a hospital liable on a
vicarious-liability theory, the jury must be instructed regarding the specific agents against whom
negligence is alleged and the standard of care applicable to each agent.26
Applying this logic to the facts of this case would, I readily concede, be difficult, for the
simple reason that this case did not go to trial and there was no jury instruction. Had there been
such an instruction, however, it is abundantly clear from Cox that it would have been error to
simply insert the words "Botsford Hospital" in place of the words "named profession" in SJI2d
30.01, as the trial court in Cox substituted the words "hospital neonatal intensive care unit" for
the words "named profession" when it modified SJI2d 30.01. Rather, here, Nippa would have
20
Cox, supra at 10 (emphasis supplied).
21
Id. at 14 n 14.
22
Id. at 10.
23
Id. at 12.
24
Id. at 11.
25
Id. at 5, 14-15.
26
Id. at 15.
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been required to prove the negligence of at least one agent of Botsford to give rise to vicarious
liability on the part of Botsford and the trial court would have been required to instruct with
respect to the negligence and the standard of care of this agent—or these agents—and not with
respect to Botsford as the principal. Such an approach would be eminently sensible and would
align directly with the overall concept of vicarious liability.
III. Applying The Logic Of Cox To The Legal Issue In This Case
To belabor the point, however, these are not the facts of this case and proceeding down
this road is an exercise in futility. The more productive exercise, it seems to me, is to apply the
logic of Cox to the legal issue in this case. That legal issue, again, is whether, under MCL
600.2169, a plaintiff suing a hospital, and only a hospital, under a theory of vicarious liability is
required to file an affidavit of merit signed by a physician who is board-certified in the specialty
or specialties of the agent or agents of the hospital that the plaintiff claims engaged in medical
malpractice.27
The majority uses the logic of Cox to amend MCL 600.2169 so that the term "party" in
that statute includes the term "agent."28 This, I contend, is exactly contrary to the explicit
language of Cox. In dealing with the issue of the applicable standard of care for nurses—an issue
not present in this case—the Supreme Court was interpreting MCL 600.2912a, the statute that
27
In its footnote 6, the majority notes that Tate v Detroit Receiving Hosp, 249 Mich App 212,
213; 642 NW2d 346 (2002), involved a medical-malpractice action with a hospital as a sole
defendant. My reading of the case compels the same conclusion. However, I do note that the
opinion in Tate did not address the issue here. Indeed, it appears that the Tate panel assumed,
without confronting the issue at all, that when a hospital is the sole defendant MCL 600.2169
requires a plaintiff to file an affidavit of merit signed by a physician who is board-certified in the
specialty or specialties of the agent or agents of the hospital that the plaintiff claims engaged in
medical malpractice. Thus, much as the majority does here, the Tate panel appears to have
conflated a defendant hospital with its physician agent when dealing with the requirements of
MCL 600.2169. See, for example, the following statement from Tate:
Surely the Legislature did not intend to eradicate a plaintiff 's ability to
bring a meritorious malpractice action against a defendant physician who happens
to have board certifications in several different fields. [Tate, supra at 219
(emphasis supplied).]
Both the majority and I agree that Tate did not involve a defendant physician. Rather, it involved
a hospital as the sole defendant. It is difficult to see, therefore, how Tate helps us here; rather, it
appears simply to compound the confusion.
28
The majority denies that it is amending the statute so that the term "party" includes the term
"agent." Ante at ____ n 9. Rather, it concludes "only that the term 'party' encompasses the
negligent party as set forth in the complaint filed by plaintiff." Id. The majority will forgive me
if I fail to comprehend the difference between that which it claims not to do and that which it
does.
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sets out the standard of care for general practitioners and specialists. The Supreme Court noted
that the statute does not define "general practitioner" or "specialist." The Court then stated:
When faced with questions of statutory interpretation, our obligation is to
discern and give effect to the Legislature's intent as expressed in the statutory
language. DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300
(2000); Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d 70 (2000).
Undefined statutory terms must be given their plain and ordinary meanings.
Donajkowski v Alpena Power Co, 460 Mich 243, 248-249; 596 NW2d 574
(1999). When confronted with undefined terms, it is proper to consult dictionary
definitions. Id.[29]
In Nippa I, the majority straightforwardly admitted (1) that the term "party" in MCL
600.2169 was not defined in the statute, (2) that it had therefore consulted Black's Law
Dictionary (6th ed), and (3) that the word "party," as defined in Black's Law Dictionary, is a
"legal term of art that has acquired a particular meaning in the law."30 One searches in vain in
Black's, or other commonly used dictionaries,31 to find a definition of the word "party" that
includes the word "agent"; indeed, Black's states, as noted above, that the word "party" "'refers to
those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or
defendant, whether composed of one or more individuals and whether natural or legal persons;
all others who may be affected by the suit, indirectly or consequently, are persons interested but
not parties.'" Nippa, I, supra at 674 (emphasis supplied). Quite clearly, then, the word "party"
does not include within its meaning the word "agent."
IV. Conclusion
Applying the logic of Cox to the facts of this case leads ultimately to a blind alley. Cox
deals, with respect to the concept of vicarious liability, with an instructional error. There were no
instructions in this case and therefore there can be no instructional error. Applying the logic of
Cox to the legal issue in this case is possible only if one expands the meaning of the word "party"
to include the word "agent."
29
Cox, supra at 18.
30
Nippa I, supra at 674.
31
See Random House Webster's College Dictionary (1997): a "party" is "one of the litigants in a
legal proceeding; a plaintiff or defendant . . . a signatory to a legal instrument." See also Garner,
A Dictionary of Modern Legal Usage (New York: Oxford University Press, 2d ed, 1995) (a
"party" is "a LEGALISM that is unjustified when it merely replaces person. If used as an
elliptical form of party to the contract or party to the lawsuit, party is quite acceptable as a
TERM OF ART") (emphasis in the original).
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With what, then, are we left? I believe we are left with a well-intentioned effort to
rewrite MCL 600.2169 to make it less "illogical" and more in accordance with common sense.
At the risk of repetition, I return to my conclusion in Nippa I:
[S]uch an amended statute would be logical, fair, and, I would hope,
workable. Perhaps the Legislature will enact such an amendment. As yet,
however, it has not. There is nothing in our judicial commissions or anywhere to
be found in the concept of the separation of powers that empowers us to perform
this task as the Legislature's surrogate. It is not within our judicial responsibilities
to undertake to do what the Legislature should have done, but did not do. The
majority chooses to embark on just such an undertaking. I do not. I would,
therefore, reverse.[32]
The majority again raises, in responding to this dissent, the issue of the definition of the
word "party," suggesting that the dissent uses a "pigeonholed definition" and "destroys the
intended purpose and meaning of the statute."33 Again at the risk of repetition, I note that in
Nippa I, the majority conceded that MCL 600.2169 does not define the word "party."34 That was
certainly correct. Accordingly, the majority in Nippa I turned to a dictionary to ascertain the
meaning of that word.35 That was certainly appropriate.36 The dictionary to which the majority
turned was Black's. The central definition of a party in Black's is: "A party to an action is a
person whose name is designated on record as plaintiff or defendant."37 The majority now
contends that the statute itself does not say "party defendant," "party of record," "party plaintiff,"
or agent for "party plaintiff."38 This is certainly so. The majority then states that, "What § 2169
does say is 'party.'"39 This is also certainly so. It is equally certain that, under any dictionary
definition that I have been able to find, the term "party" does not include the allegedly negligent
agent of a party.
The majority's statement that it has resolved the "linguistic problem" with a
"straightforward, common-sense approach" is, however, certainly true.40 The attempt is earnest
32
Nippa I, supra at 691.
33
Ante at ___.
34
Id. at 673.
35
Id. at 674.
36
See Donajkowski, supra.
37
Black's, supra, p 1122. See also Random House Webster's College Dictionary, supra, and A
Dictionary of Modern Legal Usage, supra.
38
Ante at ___.
39
Id. at ___.
40
Ante at ___.
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and well-intentioned. It makes the statute less illogical and more sensible. But we are not
modern-day alchemists with a roving commission to turn legislative lead into judicial gold. We
cannot, in the name of common sense, redefine the word party to include the word agent; that is a
task for the Legislature to undertake if it chooses. The response to the Supreme Court's remand
should not be to undertake the legislative task of amending the statute but rather to give the plain
and ordinary meaning to the undefined statutory term41 "party." If one does so, then I believe the
resolution to the problem at hand is to hold that Nippa, while required to file an affidavit of merit
signed by a physician, was not required, when she sued only Botsford, to file an affidavit signed
by a board-certified specialist. This is not, by any stretch of the imagination, an absurd result and
it applies the law as the Legislature enacted it.
/s/ William C. Whitbeck
41
Cox, supra at 18.
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