REBECCA GROSSMAN V OTTO W BROWN MD
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 20, 2004
REBECCA GROSSMAN, as Personal
Representative of the Estate of
FRED GROSSMAN, Deceased,
Plaintiff-Appellee,
v
No. 122458
OTTO W. BROWN, M.D., SINAI HOSPITAL,
an assumed name of SINAI HOSPITAL OF
GREATER DETROIT, a Michigan Non-Profit
Corporation,
Defendants-Appellants,
and
ROBERT MURRAY, M.D.,
Defendant.
_______________________________
BEFORE THE ENTIRE BENCH
TAYLOR, J.
At issue here is whether plaintiff’s attorney had a
reasonable belief under MCL 600.2912d(1) that plaintiff’s
medical expert satisfied the expert witness requirements of
MCL
600.2169
in
order
to
sign
plaintiff’s
affidavit
of
merit.
We
hold
that
reasonable belief.
circuit
court
plaintiff’s
attorney
had
such
a
Having reached the same conclusion, the
decision
is
affirmed,
and
this
case
is
remanded to that court for further proceedings.
I. FACTS
Plaintiff’s husband, Fred Grossman, went to defendant
Sinai
Hospital
endarterectomy
to
undergo
(surgical
carotid artery).1
removal
an
of
elective
the
lining
carotid
of
the
The physician who performed the surgery
was defendant Dr. Otto Brown.
He is board-certified in the
specialty of general surgery and possesses what is somewhat
ambiguously
described
as
“a
certificate
qualifications in vascular surgery.”
of
special
After the surgery,
Mr. Grossman began bleeding internally and had to be rushed
back
into
surgery.
Approximately
two
days
later,
Mr.
Grossman died.
In
preparation
for
her
lawsuit,
plaintiff
sent
a
notice of intent to file a claim to defendants as required
by MCL 600.2912b(1).
The notice of intent alleged that
defendants Dr. Brown and Sinai Hospital, as well as another
doctor who is not a party to this appeal, were negligent by
failing to properly evaluate Mr. Grossman and by failing to
1
This is a type of vascular surgery.
2
provide appropriate postoperative care, the culmination of
which was Mr. Grossman’s death.
In
commencing
her
lawsuit,
plaintiff
filed
an
affidavit of merit with her medical malpractice complaint
as required by MCL 600.2912d(1)2 and MCL 600.2169.3
These
two statutes require the plaintiff’s counsel to file an
affidavit
2
of
merit
signed
by
a
physician
who
counsel
MCL 600.2912d(1) states the following, in pertinent
part:
T]he 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 [MCL
600.2169].
3
MCL 600.2169 states the following, in pertinent part:
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.
[MCL
600.2169(1).]
3
reasonably believes specializes in the same specialty as
the
defendant
physician.
If,
however,
the
defendant
physician is a board-certified specialist, the plaintiff’s
counsel
must
reasonably
believe
the
affidavit-of-merit
expert is board-certified in that specialty.4
Consequently,
plaintiff’s
Dr.
counsel
qualifications
in
researched
order
to
defendant
obtain
a
Brown’s
qualified
expert
witness.
Plaintiff’s counsel asserted that he accessed the
American
Medical
Association’s
(AMA)
website
where
he
viewed defendant Brown’s qualifications, saw that he was
board-certified only in general surgery, and confirmed that
there is no vascular surgery board certification.
Thus,
according to plaintiff’s counsel’s research, Dr. Brown was
board-certified
plaintiff’s
certification
Accordingly,
only
counsel
for
obtained
surgery
who
the
a
general
believed
the
for
counsel
in
specialized
that
specialty
affidavit
physician
in
surgery.
there
of
of
4
was
no
vascular
merit,
board-certified
vascular
That
surgery,
is,
board
surgery.
plaintiff’s
in
general
Dr.
Alex
See Halloran v Bhan, 470 Mich ___; ___ NW2d ___
(2004).
We ordered Halloran to be argued and submitted
with this case. 468 Mich 868 (2003).
4
Zakharia,5 who reinforced counsel’s belief that there is no
board certification in vascular surgery.
After
answers
to
the
complaint
had
been
filed,
defendants Sinai Hospital and Dr. Brown moved for summary
disposition on the basis that plaintiff’s expert was not
qualified
to
600.2169.
sign
the
Defendants
affidavit
argued
of
that
merit
defendant
under
Dr.
MCL
Brown,
while being board-certified in general surgery, also has a
certificate of special qualifications in vascular surgery,
which
they
claim
is
itself
another
board
certification.
Because Dr. Zakharia lacks such a certification, defendant
concluded that Dr. Zakharia is disqualified from signing
the affidavit.
a
reasonable
Zakharia
met
Counsel for plaintiff responded that he had
belief
the
under
expert
MCL
600.2912d(1)
witness
requirements
that
Dr.
of
MCL
600.2169(1).
The trial court denied defendants’ summary disposition
motion, holding in relevant part that plaintiff’s attorney
had a reasonable belief that Dr. Zakharia met the statutory
prerequisites for an expert witness.
The Court of Appeals
denied defendants’ motion for leave for an interlocutory
5
Dr. Zakharia has been practicing in the field of
vascular surgery for many years and has written articles
that have been published in numerous journals and books,
many in the area of cardiovascular and vascular medicine.
5
appeal “for failure to persuade the Court of the need for
immediate appellate review.”
We granted defendants leave
for an interlocutory appeal.6
II. STANDARD OF REVIEW
We
review
interpretation.
de
novo
on
of
statutory
Omelenchuk v City of Warren, 466 Mich 524,
527; 647 NW2d 493 (2002).
decisions
questions
summary
Likewise, we review de novo
disposition
motions.
American
Federation of State, Co & Municipal Employees v Detroit,
468 Mich 388, 398; 662 NW2d 695 (2003).
III. ANALYSIS
Because the issue in this case is one of statutory
interpretation, the paramount rule is that we must effect
the intent of the Legislature.
411;
596
NW2d
164
(1999).
In re MCI, 460 Mich 396,
Statutory
language
is
read
according to its ordinary and generally accepted meaning.
If
the
assume
statute’s
the
language
Legislature
is
plain
intended
and
its
unambiguous,
plain
we
meaning;
therefore, we enforce the statute as written and follow the
plain meaning of the statutory language.
Tryc v Michigan
Veterans’ Facility, 451 Mich 129, 135-136; 545 NW2d 642
(1996).
6
468 Mich 869 (2003).
6
Under
Michigan’s
statutory
medical
malpractice
procedure, plaintiff must obtain a medical expert at two
different
stages
of
the
litigation—at
the
complaint is filed and at the time of trial.
time
the
With regard
to the first stage, under MCL 600.2912d(1), a plaintiff is
required to file with the complaint an affidavit of merit
signed by an expert who the plaintiff’s attorney reasonably
believes
regard
meets
to
the
the
requirements
second
stage,
the
of
MCL
trial,
600.2169.
MCL
With
600.2169(1)
states that “a person shall not give expert testimony . . .
unless
the
person”
(emphasis added).
meets
enumerated
qualifications
Thus, while at the affidavit-of-merit
stage a plaintiff’s attorney need only “reasonably believe”
the expert is qualified, at trial the standard is more
demanding because the statute states that a witness “shall
not give expert testimony” unless the expert “meets the
[listed] criteria” in MCL 600.2169(1).
The
Legislature’s
rationale
for
this
disparity
is,
without doubt, traceable to the fact that until a civil
action is underway, no discovery is available.
2.302(A)(1).
Thus,
the
Legislature
apparently
See MCR
chose
to
recognize that at the first stage, in which the lawsuit is
about
to
be
filed,
the
plaintiff’s
attorney
only
has
available publicly accessible resources to determine the
7
defendant’s board certifications and specialization.
this
stage,
reasonable
the
plaintiff’s
belief
requirements
of
However,
the
by
that
MCL
attorney
the
expert
600.2169.
time
the
need
See
only
have
satisfies
MCL
plaintiff’s
At
a
the
600.2912d(1).
expert
witness
testifies at trial, the plaintiff’s attorney has had the
benefit of discovery to better ascertain the qualifications
of
the
defendant
physician,
and,
thus,
the
plaintiff’s
attorney’s reasonable belief regarding the requirements of
MCL
600.2169
does
not
control
whether
the
expert
may
involving
the
testify.
Because
this
case
presents
a
dispute
affidavit-of-merit stage, the issue before us is whether,
according to MCL 600.2912d(1), plaintiff’s attorney had a
“reasonable
belief”
requirements
of
MCL
that
his
600.2169.
expert
We
hold
satisfied
that
given
the
the
information available to plaintiff’s attorney when he was
preparing
belief
the
that
affidavit
Drs.
Brown
of
merit,
and
he
Zakharia
had
were
a
reasonable
both
board-
certified in their specialty of general surgery and that
there was no board certification in vascular surgery.
The salient and dispositive facts are that plaintiff’s
attorney consulted the AMA website, which supplied him with
information that defendant Brown was only board-certified
8
in general surgery and that there is no vascular surgery
board
certification.
Zakharia,
his
Further,
expert,
who
counsel
reiterated
that
consulted
Dr.
there
no
is
vascular surgery board certification.
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.
It may be that what satisfies the standard at this first
stage will not satisfy the requirements of MCL 600.2169 for
expert testimony at trial.
This will be decided on remand.
To address this matter now, especially because there has
been
no
fact-finding
would be premature.7
on
the
disputed
factual
questions,
It will be for the trial court, in its
role as initial interpreter of the statute and qualifier of
experts, to decide these issues as they become timely.
IV. CONCLUSION
Because plaintiff has complied with the requirements
of
the
affidavit-of-merit
statute,
7
MCL
600.2912d(1),
we
Thus, we expressly do not decide the additional issue
raised by the concurring justices in this case because it
is not properly before us: whether board certifications
must match in all cases or only those in which the board
certifications are relevant to the alleged malpractice.
9
affirm the circuit court and remand this case to that court
for further proceedings.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
10
S T A T E
O F
M I C H I G A N
SUPREME COURT
REBECCA GROSSMAN, as Personal
Representative of the Estate of
FRED GROSSMAN, Deceased,
Plaintiff-Appellee,
v
No. 122458
OTTO W. BROWN, M.D., SINAI HOSPITAL,
an assumed name of SINAI HOSPITAL OF
GREATER DETROIT, a Michigan Non-Profit
Corporation,
Defendants-Appellants.
and
ROBERT MURRAY, M.D.,
Defendant.
_______________________________
CAVANAGH, J. (concurring in the result only).
I concur with the majority that plaintiff’s counsel
had a reasonable belief that plaintiff’s expert met the
requirements for filing an affidavit of merit under MCL
600.2912d.
However, I write separately because I do not
believe that MCL 600.2169 requires an expert witness to
match board certifications in all cases.1
1
A proper reading
I still strongly believe that MCL 600.2169 is
unconstitutional, as discussed in my dissent in McDougall v
Schanz, 461 Mich 15, 37-72; 597 NW2d 148 (1999).
of
the
statute
indicates
that
board
certifications
and
specialties must match only when the board certification or
specialty is relevant to the alleged malpractice at issue.
Therefore, I concur with the result reached in this case.
Michael F. Cavanagh
Marilyn Kelly
2
S T A T E
O F
M I C H I G A N
SUPREME COURT
REBECCA GROSSMAN, as Personal
Representative of the Estate of
FRED GROSSMAN, deceased,
Plaintiff-Appellee,
v
No. 122458
OTTO W. BROWN, M.D., SINAI HOSPITAL,
an assumed name of SINAI HOSPITAL OF
GREATER DETROIT, a Michigan non-profit
corporation,
Defendants-Appellants,
and
ROBERT MURRAY, M.D.,
Defendant.
_______________________________
WEAVER, J. (concurring in result only).
I
concur
with
the
majority
only
in
its
conclusion
that, in this case, plaintiff’s attorney had a reasonable
belief that plaintiff’s medical expert met the requirements
for filing an affidavit of merit under MCL 600.2912d.
I
write separately to clarify, as I explain in my dissenting
opinion in Halloran v Bhan,
Mich
;
NW2d
(2004)
(WEAVER, J. dissenting), that MCL 600.2169 requires that a
standard-of-care
expert’s
board
certifications
and
specialties match those of the defendant only where the
specialty
or
board
certification
is
appropriate
for
(correct for the purpose of explaining) the standard of
care to which the expert will be testifying in the case.
Elizabeth A. Weaver
2
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