DOLORES KLEEKAMP V TENDERCARE INC
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STATE OF MICHIGAN
COURT OF APPEALS
DOLORES KLEEKAMP, Personal Representative
of the Estate of ROSE ARGELINE,
UNPUBLISHED
June 15, 2004
Plaintiff-Appellee/Cross-Appellee,
v
TENDERCARE, INC., d/b/a WAYNE TOTAL
LIVING CENTER,
No. 246984
Wayne Circuit Court
LC No. 01-120188-NM
Defendant-Cross-Appellant,
and
GENERAL MEDICINE, P.C.,
Defendant-Appellant.
Before: Smolenski, P.J., and White and Kelly, JJ.
PER CURIAM.
In this interlocutory appeal by leave granted, defendant General Medicine, P.C.,
challenges the trial court’s decision granting its motion for summary disposition with regard to
its vicarious liability for any malpractice committed by Dr. Gale, a physician certified by the
American Board of Surgery, but denying the motion with regard to its vicarious liability for any
malpractice committed by Drs. Sharabi, Ansari, and Reddy, who are each physicians certified in
internal medicine. The dispositive issue concerns whether plaintiff’s attorney reasonably
believed that the affidavit of merit submitted with plaintiff’s complaint complied with MCL
600.2912d(1). Plaintiff’s affidavit of merit was signed by Dr. Irving Vinger, who was board
certified in family practice, but not certified in surgery or internal medicine. Nonetheless, the
trial court determined that plaintiff’s attorney reasonably believed that Dr. Vinger qualified as an
expert witness under MCL 600.2169 based on representations allegedly made by an unidentified
employee of General Medicine to an assistant in plaintiff’s counsel’s office to the effect that each
of the named physicians specialized in family medicine. We reverse in part and remand for
further proceedings.
We review de novo a trial court’s decision on a motion for summary disposition to
determine whether the moving party was entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Regardless of whether we evaluate the
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trial court’s decision under MCR 2.116(C)(7) or MCR 2.116(C)(10), we conclude that the trial
court erred in denying General Medicine’s motion with respect to the alleged malpractice of Drs.
Sharabi, Ansari, and Reddy. The evidence failed to establish that the requirements of MCL
600.2912d(1) were satisfied, because we find that plaintiff’s attorney did not have a basis for
reasonably believing that plaintiff’s expert, Dr. Vinger, met the requirements for an expert
witness under MCL 600.2169(1) relative to any of the named physicians. Thus, General
Medicine’s motion should have been granted in full with regard to this issue. Geralds v Munson
Healthcare, 259 Mich App 225; 673 NW2d 792 (2003), lv pending.
Initially, we note that plaintiff’s complaint named four physicians who allegedly
committed medical malpractice, but only two of these physicians, Dr. Gale and Dr. Ansari, were
alleged to be employed by General Medicine. When resolving General Medicine’s motion for
summary disposition, the trial court did not determine which physicians were employed by
General Medicine, but rather focused on whether plaintiff’s attorney reasonably believed that Dr.
Vinger was qualified under MCL 600.2169 with respect to each of the four physicians. In light
of our determination that plaintiff’s affidavit of merit is deficient with respect to plaintiff’s
claims against each of the named physicians, we likewise find it unnecessary to resolve which of
the four physicians were actually employed by General Medicine.
MCL 600.2912d(1) provides:
Subject to subsection (2), the plaintiff in an action alleging medical
malpractice or, if the plaintiff is represented by an attorney, the plaintiff’s attorney
shall file with the complaint an affidavit of merit signed by a health professional
who the plaintiff’s attorney reasonably believes meets the requirements for an
expert witness under section 2169. . . .
And 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. [Emphasis added.]
It is undisputed that Dr. Gale was board certified in the area of his specialty, surgery, and
that the other three named physicians were board certified in the area of their specialty, internal
medicine. It is also undisputed that plaintiff’s expert, Dr. Vinger, who signed the affidavit of
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merit, was not board certified in either surgery or internal medicine, but rather was offered by
plaintiff as having expertise in family practice.1 Nevertheless, under MCL 600.2912d(1), the
affidavit of merit requirement may be satisfied as long as plaintiff’s attorney reasonably believed
that Dr. Vinger met the requirements for an expert witness under MCL 600.2169. Indeed, this
Court has held that “[a]n affidavit is sufficient if counsel reasonably, albeit mistakenly, believed
that the affiant was qualified under MCL 600.2169.” Watts v Canady, 253 Mich App 468, 471472; 655 NW2d 784 (2002).2
Here, plaintiff argues that because her attorney reasonably believed that the doctors were
board certified in family practice, it was reasonable to believe that Dr. Vinger was qualified as an
expert under MCL 600.2169. Plaintiff’s attorney did not submit an affidavit explaining the basis
for his belief regarding the four physicians named in the complaint. Instead, he submitted the
affidavit of a legal assistant in his office, who averred that an unidentified person from General
Medicine informed her during a telephone conversation that each of the four physicians
specialized in “family medicine.” Even accepting the truth of these averments, we conclude that
this limited information was insufficient to enable plaintiff’s attorney to form a reasonable belief
concerning the board certification of any of the physicians. Geralds, supra at 233.
Although the issue in Geralds involved the plaintiff’s counsel’s belief regarding its expert
witness’ board certification, we find the case applicable here. The Geralds Court stated:
It is unreasonable for an attorney to form a belief regarding the board certification
of a physician without asking the physician about his board certification. As
skilled and experienced as plaintiff's attorneys appear to be, the failure to ask the
four word question, “Are you board certified?” and the failure to examine [the
affiant’s] curriculum vitae, which contains no mention of board certification in
emergency medicine, were not reasonable under the circumstances.
There being no evidence that plaintiff’s attorney directly, or through a legal assistant, made a
specific inquiry to an appropriate, knowledgeable individual about the physicians’ certification
and area of specialty, or consulted an appropriate information source, such as the American
Medical Association, to determine whether the physicians were board certified in any area of
specialty, we conclude that the trial court erred in determining that plaintiff’s attorney had a basis
for reasonably determining that Dr. Vinger met the requirements for an expert witness under
1
In support of its motion, General Medicine submitted documentary evidence purporting to
show that Dr. Vinger was board certified in family practice. Our review of the evidence fails to
disclose that Dr. Vinger was board certified in any area. Nonetheless, because the parties do not
dispute this issue, we will assume for purposes of our review that Dr. Vinger was board certified
in family practice.
2
We note that the issue whether an expert who does not possess the same board certification as
the defendant physician is qualified under MCL 600.2169(1) to present expert testimony against
the defendant physician is currently pending before our Supreme Court. Halloran Estate v Bhan,
468 Mich 868 (2003), and Grossman v Brown, 468 Mich 869 (2003).
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MCL 600.2169.3 Accordingly, we reverse the trial court’s decision on this issue with regard to
plaintiff’s claims involving alleged malpractice by Drs. Sharabi, Ansari, and Reddy, and remand
for entry of an order granting General Medicine’s motion for summary disposition as to
plaintiff’s malpractice claim involving these three above-named physicians.
We express no opinion whether plaintiff’s action is therefore barred by the statute of
limitations, as argued in General Medicine’s motion for summary disposition, given the trial
court’s failure to expressly decide this issue and General Medicine’s failure to brief it on appeal.
Additionally, we decline to address the additional issues raised by defendant Tendercare, Inc., in
its cross appeal. Because the trial court did not enter an order regarding plaintiff’s claims against
Tendercare, Inc., there is no order to review. “A court speaks through its orders, and the
jurisdiction of this Court is confined to judgments and orders.” Law Offices of Lawrence J
Stockler, PC v Rose, 174 Mich App 14, 54; 436 NW2d 70 (1989).
Affirmed in part, reversed in part, and remanded for further proceedings not inconsistent
with this opinion. We do not retain jurisdiction.
/s/ Michael R. Smolenski
/s/ Helene N. White
/s/ Kirsten Frank Kelly
3
We find it curious that despite plaintiff presenting the same argument below, the trial court
dismissed plaintiff’s claim as to Dr. Gale because a general surgery board certification was not
close to family practice, yet denied General Medicine’s motion as to the other three physicians
because it found that plaintiff’s attorney “reasonably relied on a representation from the nursing
home.”
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