NANCY GILLESPIE V LANSING OB GYN ASSOCIATES

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STATE OF MICHIGAN COURT OF APPEALS NANCY GILLESPIE and GARY GILLESPIE, UNPUBLISHED February 26, 2004 Plaintiffs-Appellees, v No. 244194 Ingham Circuit Court LC No. 01-093592-NH LANSING OB-GYN ASSOCIATES, Defendant-Appellant. Before: Schuette, P.J., Whitbeck, C.J., and Owens, J. WHITBECK, C.J., (concurring). Although I concur in the majority’s opinion, I write separately to note that I do so only because precedent requires it. As I explained in my dissent in Nippa v Botsford Gen Hosp (On Remand), 257 Mich App 387, 397-411; 668 NW2d 628 (2003) (Whitbeck, C.J., dissenting), it is my view that MCL 600.2912d(1) does not require a plaintiff to file an affidavit of merit signed by a board-certified specialist if that plaintiff has sued only the hospital for medical malpractice under a vicarious liability theory. I hold this view because MCL 600.2169(1) requires that an expert testifying in a medical malpractice case have the same credentials as “the party against whom or on whose behalf the testimony is offered” (emphasis added). In this case, the “party” is a hospital, not a specialist, and the word “party” — which is a term of art meaning “those by or against whom a legal suit is brought” or “the party plaintiff or defendant” — should not be construed to extend to agents of a party. Nippa, supra at 402 (internal quotations omitted). However, because we are bound by MCR 7.215(J)(1) to follow the published opinion in Nippa, I agree that we must reverse and remand. /s/ William C. Whitbeck -1-

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