ANTOINETTE CARTER V A NEAL WILSON MD
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STATE OF MICHIGAN
COURT OF APPEALS
ANTOINETTE CARTER,
UNPUBLISHED
May 8, 2007
Plaintiff-Appellee,
v
No. 270657
Wayne Circuit Court
LC No. 04-414457-NH
A. NEAL WILSON, M.D. and A. NEAL
WILSON, M.D., P.C.,
Defendants-Appellants,
and
DETROIT MEDICAL CENTER and HARPER
HUTZEL HOSPITAL,
Defendants.
Before: Talbot, P.J., and Donofrio and Servitto, JJ.
PER CURIAM.
Defendants, A. Neal Wilson, M.D. and A. Neal Wilson, M.D., P.C., appeal the
denial of their motion for summary disposition in this medical malpractice action. Specifically,
defendants contend that the affidavit of merit accompanying the complaint filed by plaintiff,
Antoinette Carter, was defective because a qualified expert did not sign it. We affirm.
Plaintiff consulted with defendant to obtain surgical intervention for cosmetic changes to
her appearance, generally described as a “face lift.” Defendant simultaneously performed
several surgical procedures on plaintiff, including: (a) blepharo-ptosis with obstruction of
peripheral vision, (b) subplatysmal lipoma, (c) excessive facial skin, and (d) brow ptosis.
Although no immediate complications were evidenced following the surgery, within a week
plaintiff began to experience swelling, excessive fluid drainage and scarring. Defendant
performed a second surgery on plaintiff to repair the scarring and fluid accumulation. When
plaintiff continued to experience complications comprised primarily of the development of an
excessive, hardened layer of skin in her neck area, which restricted her neck movement, she
consulted another surgeon and initiated this lawsuit.
Accompanying plaintiff’s complaint was an affidavit of merit, signed by Vladimir
Panine, M.D. Dr. Panine is a board-certified dermatologist who performs a spectrum of cosmetic
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surgical procedures. Defendant describes himself as a plastic surgeon, but is not board-certified
in that specialty or any other specialty. Based on this discrepancy, defendants filed a motion for
summary disposition, asserting that Dr. Panine was not qualified, under MCL 600.2169, to offer
standard of care testimony against defendant and that, as a result, the affidavit of merit was
deficient. In addition, defendants argued that because the affidavit of merit was insufficient,
there was no tolling of the statute of limitations, necessitating the dismissal of plaintiff’s cause of
action with prejudice.
Plaintiff responded by asserting that her original counsel, who initiated the complaint,
had a reasonable belief that Dr. Panine was qualified to sign the affidavit of merit because both
Dr. Panine and defendant practiced the specialty of cosmetic surgery. Plaintiff’s initial counsel,
Grady L. Toombs, provided an affidavit in which he averred that he consulted with Dr. Panine to
review plaintiff’s medical records involving the surgery by defendant and that Dr. Panine had
opined defendant had breached the standard of care. Dr. Panine also told plaintiff’s counsel that
the procedures performed by defendant were cosmetic surgical procedures, which Dr. Panine
also performed on a regular basis. Plaintiff’s former counsel indicated that he had reviewed the
American Board of Medical Specialties website and determined that defendant was not board
certified in any particular specialty. Specifically, plaintiff’s counsel explained:
Based upon a review of the records of Antoinette Carter, identifying the
procedure performed by Dr. Alan Neal Wilson, a review of this surgical
documentation by Dr. Vladimir Panine, Dr. Panine’s acknowledgment that he was
primarily practicing in this area of cosmetic surgery and that he (Dr. Panine) was
credentialed to perform the same procedures as those performed upon Antoinette
Carter by Dr. Wilson, I was led to reasonably believe Dr. Panine was qualified to
testify as an expert witness pursuant to MCL 600.2169 regarding the claims
against Dr. Alan Neal Wilson.
The trial court issued a written opinion denying defendant’s motion for summary
disposition stating, in relevant part:
[B]ased on the information available to Plaintiff’s attorney when he was preparing
the affidavit of merit, which consisted of his expert’s advice and information that
Dr. Wilson was not board certified in a specialty, Plaintiff’s attorney had a
reasonable belief that Dr. Panine satisfied the requirements of MCL 600.2169.
Specifically, the trial court opined:
[T]he parties have presented evidence that there is considerable overlap between
the specialty of plastic surgery and cosmetic surgery, such that a physician who
designates plastic surgery as his specialty might spend the majority of his time
performing the same procedures as a cosmetic surgeon performs.
***
[T]he fact that cosmetic surgery is not formally recognized as a specialty does not
undermine the testimony of Dr. Wilson and Dr. Panine regarding the overlap
between cosmetic surgery and other formally recognized specialties. The Court
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notes that on the Detroit Medical Center’s website, Dr. Wilson’s practicing
specialty is listed as plastic surgery, and his clinical interests include
facial/cosmetic surgery, liposuction, and blepharoplasm, which Dr. Panine
considers cosmetic surgical procedures.
In addition to denying defendant’s motion for summary disposition, the trial court entered a stay
of proceedings pending the resolution of this appeal. The decision to grant or deny summary
disposition is a question of law that we review de novo. Schmalfeldt v North Pointe Ins Co, 469
Mich 422, 426; 670 NW2d 651 (2003). Similarly, statutory interpretation is also a question of
law that is reviewed de novo by this Court. Eggleston v Bio-Medical Applications of Detroit,
Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
In filing a complaint for medical malpractice, a plaintiff is required to provide, pursuant
to MCL 600.2912d(1), 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 [MCL
600.]2169.” See also, Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004).
Specifically, MCL 600.2169 provides, in relevant 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.
MCL 600.2169 “contains strict requirements concerning the qualification of expert witnesses in
medical malpractice cases,” McDougall v Shanz, 461 Mich 15, 28; 597 NW2d 148 (1999), by
mandating the qualifications of an expert witness “match” the qualifications of the defendant
physician. Tate v Detroit Receiving Hosp, 249 Mich App 212, 221; 642 NW2d 346 (2002).
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The Michigan Supreme Court has recently elaborated on the “matching” requirement in
malpractice actions, stating:
[T]he plaintiff’s expert witness must match the one most relevant standard of
practice or care—the specialty engaged in by the defendant physician during the
course of the alleged malpractice, and, if the defendant physician is board
certified in that specialty, the plaintiff’s expert must also be board certified in that
specialty. [Woodard v Custer, 476 Mich 545, 560; 719 NW2d 842 (2006).]
The Court went further to indicate, “a physician can be a specialist who is not board certified,”
and defined a “specialist” as “somebody who can potentially become board certified.” Id. at 561.
“[I]f the defendant physician practices a particular branch of medicine or surgery in which one
can potentially become board certified, the plaintiff’s expert must practice or teach the same
particular branch of medicine or surgery.” Id. at 561-562.
Defendants assert that, even on the most basic or superficial level, Dr. Panine’s
qualifications as a board-certified dermatologist do not match defendants’ designated discipline
of plastic surgery. Defendants further contend that plaintiff could not have reasonably believed,
given defendants’ stated area of practice of plastic surgery, that an affidavit of merit signed by a
board-certified dermatologist would meet the statutory requirements. Although plaintiff
acknowledges the discrepancy in the stated areas of practice for the two physicians, she contends
that both defendant and Dr. Panine are “specialists” in cosmetic surgery. As such, plaintiff
argues it was reasonable to believe the assertions of her expert that because both doctors
performed the same or similar medical procedures that Dr. Panine would meet the expert witness
requirements of MCL 600.2169(1) for purposes of completion of an affidavit of merit.
MCL 600.2912(d) only requires that plaintiff’s attorney maintained a reasonable belief
that the health professional used to sign the affidavit of merit met the statutory requirements of
MCL 600.2169. Geralds v Munson Healthcare, 259 Mich App 225, 233; 673 NW2d 792 (2003).
The lower criteria, which requires that an affidavit of merit need only be based on a reasonable
belief, is due to the fact that discovery will not have been available at the time the affidavit was
prepared and plaintiff would only have access to “publicly accessible resources to determine the
defendant’s board certification and specialization.” Grossman, supra at 599. Whether an
attorney’s belief was reasonable is determined by the then existing circumstances, including the
information that was available to, and resulting from the investigation conducted by, plaintiff’s
counsel. Id. at 599-600.
Although neither the American Board of Medical Specialties (ABMS) nor the American
Osteopathic Association (AOA) recognize cosmetic surgery as a specialty, the American Board
of Cosmetic Surgery does offer certification. Because certification is available, the practice of
cosmetic surgery would be considered a “specialty” in accordance with the definition enunciated
by Woodard, Woodard, supra at 561-562, and as recently reiterated by this Court that “any
physician that can potentially become board certified in a branch of medicine or surgery is
defined as a ‘specialist’ for purposes of MCL 600.2169(1),” Gonzalez v St. John Hosp & Med
Ctr, ___ Mich App ___; ___ NW2d ___ (Docket No. 272093, issued April 9, 2007), slip op at 5.
This Court has further determined that “there is no difference between a defendant physician
who is board certified in a specialty but is practicing outside of that specialty at the time of the
alleged malpractice and a physician . . . ‘who can potentially become board certified’ that is
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practicing in a specialty but is not board certified in that specialty.” Id., slip op at 7. Hence, the
important focus for comparison or matching of specialties is based on the actual area of practice
and similarity of medical procedures being performed at the time of the alleged malpractice. In
this instance, defendant, while not board certified in cosmetic surgery, is arguably eligible for
certification and practices in that specialty. Similarly, plaintiff’s expert, although board-certified
in dermatology, is practicing outside his certification in the field of cosmetic surgery and would
be eligible for certification in that specialty. As such, both physicians are sufficiently matched
by their practice sub-specialty for purposes of fulfilling the requirements of MCL 600.2921 for
completion of an affidavit of merit.
Additionally, plaintiff’s counsel reviewed the AMA website and confirmed that
defendant maintained no board certifications. Plaintiff’s counsel also consulted with her expert
who indicated that he was certified to perform the same surgical procedures as defendant had
completed on plaintiff, and that he routinely and frequently performed these cosmetic
procedures. Plaintiff’s expert further asserted that the field of cosmetic surgery was extremely
broad including a multitude of specialties and specifically encompassing both plastic surgery and
dermatological expertise, with a tremendous degree of procedural overlap. Based on the
information that was available to plaintiff’s counsel at the time of completing the affidavit of
merit, it was reasonable to believe that defendant and Dr. Panine were both eligible for board
certification and would, therefore, be considered “specialists” in the area of cosmetic surgery.
“Thus, at the moment the affidavit of merit was being prepared, plaintiff’s attorney used the
resources available to him and reasonably concluded that he had a match sufficient to meet the
requirements for naming an expert.” Grossman, supra at 599-600.
Affirmed.
/s/ Michael J. Talbot
/s/ Pat M. Donofrio
/s/ Deborah A. Servitto
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