JEREL MCELHANEY V HARPER-HUTZEL HOSPITAL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
JEREL MCELHANEY, a Minor, by his Next
Friend, STACEY MCELHANEY,
FOR PUBLICATION
January 19, 2006
9:10 a.m.
Plaintiff-Appellant/Cross-Appellee,
v
HARPER-HUTZEL HOSPITAL, f/k/a HUTZEL
HOSPITAL,
Defendant-Appellee/CrossAppellant.
No. 254376
Wayne Circuit Court
LC No. 00-019546-NH
Official Reported Version
Before: Saad, P.J., and Hoekstra and Markey, JJ.
SAAD, P.J.
I
In this medical malpractice action, the dispositive question is whether, under MCL
600.2169, an obstetrician/gynecologist may testify about the standard of care applicable to a
nurse midwife. Plaintiff claims that, during his mother's labor, the negligent actions of
defendant's nurse midwife caused him mental retardation and other impairments. We hold that
the trial court correctly granted summary disposition to defendant because plaintiff failed to
establish a genuine issue of material fact regarding the standard of care applicable to a nurse
midwife.
Defendant contends that, regardless of whether plaintiff 's experts could establish that
defendant's midwife caused his injuries, as obstetricians/gynecologists, the experts were not
qualified to offer testimony regarding the standard of practice of defendant's nurse midwife.
Accordingly, defendant maintains that the trial court correctly granted summary disposition to
defendant because plaintiff failed to establish a genuine issue of material fact by admissible
evidence.1 In its cross-appeal, defendant says that the statutorily required affidavit of merit was
1
On appeal, this Court reviews de novo a trial court's decision on a motion for summary
disposition. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). Matters of
statutory interpretation and questions of law are also reviewed de novo. Atchison v Atchison,
(continued…)
-1-
insufficient because an obstetrician/gynecologist may not testify regarding a nurse midwife, and
therefore plaintiff 's claim was not properly initiated.
II. Affidavit of Merit: Section 2912d(1)
A medical malpractice claim may be brought against any licensed health care
professional, which includes an individual licensed or registered under article 15 of the Public
Health Code.2 MCL 600.2912; MCL 600.5838a(1); Bryant v Oakpointe Villa Nursing Ctr, Inc,
471 Mich 411, 422-423; 684 NW2d 864 (2004).3 A nurse midwife is a licensed health care
professional under the Public Health Code, which defines "certified nurse midwife" as "an
individual licensed as a registered professional nurse under part 172 who has been issued a
specialty certification in the practice of nurse midwifery by the board of nursing under section
17210." MCL 333.2701(b). Section 17210, MCL 333.17210, provides that the Board of
Nursing "may issue a specialty certification to a registered professional nurse who has advanced
training beyond that required for initial licensure and who has demonstrated competency through
examination or other evaluative processes and who practices in 1 of the following health
profession specialty fields: nurse midwifery, nurse anesthetist, or nurse practitioner." A
"registered professional nurse" is defined as "an individual licensed under this article to engage
in the practice of nursing which scope of practice includes the teaching, direction, and
supervision of less skilled personnel in the performance of delegated nursing activities." MCL
333.17201(1)(c); see Cox v Flint Bd of Hosp Managers, 467 Mich 1, 19; 651 NW2d 356 (2002).
Defendant argues that plaintiff 's affidavit of merit was defective and, thus, plaintiff failed
to successfully initiate a medical malpractice claim. Section 2912d(1), MCL 600.2912d(1),
provides that a plaintiff initiating a medical malpractice action "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." See also MCR 2.112(L);
Geralds v Munson Healthcare, 259 Mich App 225, 232; 673 NW2d 792 (2003). The affidavit of
merit must include a statement regarding (1) the applicable standard of practice or care, (2) how
the applicable standard of practice or care was breached by the health professional or health
facility receiving the notice of intent to file a claim, (3) the actions that should have been taken
or omitted by the health professional or health facility in order to have complied with the
applicable standard of practice or care, and (4) the manner in which the breach of the standard of
practice or care was the proximate cause of the injury alleged in the notice. MCL 600.2912d(1);
see Cox, supra, p 10.
(…continued)
256 Mich App 531, 534-535; 664 NW2d 249 (2003); Ligouri v Wyandotte Hosp & Med Ctr, 253
Mich App 372, 375; 655 NW2d 592 (2002).
2
MCL 333.16101 et seq.
3
A medical malpractice action may be commenced against nonphysicians such as nurses,
medical technologists, physical therapists, and optometrists. MCL 600.2912; MCL 600.5838a(1);
Cox v Flint Bd of Hosp Managers, 467 Mich 1, 19-20; 651 NW2d 356 (2002); Adkins v
Annapolis Hosp, 420 Mich 87, 94-95; 360 NW2d 150 (1984); Tobin v Providence Hosp, 244
Mich App 626, 670-671; 624 NW2d 548 (2001).
-2-
Section 2169(1), MCL 600.2169(1), governs expert witnesses offering testimony
regarding the applicable standard of care. Halloran v Bhan, 470 Mich 572, 578 n 6; 683 NW2d
129 (2004). Section 2169(1) provides that 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.
(c) If the party against whom or on whose behalf the testimony is offered
is a general practitioner, the expert witness, 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) Active clinical practice as a general practitioner.
(ii) 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. [MCL 600.2169(1) (emphasis added); see Decker v Flood, 248 Mich
App 75, 81-82; 638 NW2d 163 (2001).]
Our courts have interpreted the term "party," against whom testimony is offered, to encompass a
hospital party that has been sued under a vicarious liability theory and its agents. See Nippa v
Botsford Gen Hosp (On Remand), 257 Mich App 387, 396; 668 NW2d 628 (2003).
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the
intent of the Legislature. Halloran, supra, p 577. The first step is to examine the plain language
of the statute itself. In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
-3-
The Legislature is presumed to have intended the meaning it plainly expressed. Pohutski v City
of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). If the statutory language is clear and
unambiguous, appellate courts presume that the Legislature intended the meaning plainly
expressed, and further judicial construction is not permitted. Atchison v Atchison, 256 Mich App
531, 535; 664 NW2d 249 (2003).
The parties agree that nurse midwives do not practice medicine. Accordingly, by the
plain meaning of the terms of the statute, we find that § 2169(1)(a) and (c) does not apply
because a nurse midwife is neither a specialist nor a general practitioner.4 Section 2169(1)(b),
however, makes no qualification of its applicability and, therefore, must be considered to apply
generally to all malpractice actions, including those initiated against nonphysicians. See
Halloran, supra, p 586 (Kelly, J., dissenting); Hamilton v Kuligowski, 261 Mich App 608, 610611; 684 NW2d 366 (2004). Specifically, subsection b(i) states that an expert witness must
devote "a majority of his or her professional time" to the "active clinical practice of the same
health profession" as the defendant. MCL 600.2169(1)(b)(i) (emphasis added); see Hamilton,
supra, p 610.
The plain language of § 2912d indicates that an affidavit of merit is required in every
medical malpractice action, including those initiated against nonphysicians. MCL 600.2912d(1).
Pursuant to this section, the plaintiff 's attorney must "reasonably believe[]" that the person
signing the affidavit of merit "meets the requirements for an expert witness under section 2169."
Id.: see Grossman v Brown, 470 Mich 593, 599; 685 NW2d 198 (2004). In this action,
plaintiff 's experts must meet the requirements of § 2169(1)(b).
4
The statute does not define the terms "specialist" and "general practitioner." Cox, supra, p 18.
We give undefined statutory terms their plain and ordinary meanings and consult dictionary
definitions when appropriate. Halloran, supra, p 578. A "general practitioner" is defined as "a
medical practitioner whose practice is not limited to any specific branch of medicine." Random
House Webster's College Dictionary (1995). A "specialist" is defined as "a medical practitioner
who deals only with a particular class of diseases, conditions, patients, etc." Id. See Decker,
supra, p 83. "Physician" has been defined by statute, which indicates that a physician is "an
individual licensed under this article to engage in the practice of medicine." MCL
333.17001(1)(c); see Cox, supra, p 19. The "practice of medicine" has also been defined by
statute as "the diagnosis, treatment, prevention, cure, or relieving of a human disease, ailment,
defect, complaint, or other physical or mental condition, by attendance, advice, device,
diagnostic test, or other means, or offering, undertaking, attempting to do, or holding oneself out
as able to do, any of these acts." MCL 333.17001(1)(d); see Cox, supra, pp 19-20.
Nurse midwives are registered professional nurses with specialty certification in the
practice of nurse midwifery issued by the Board of Nursing. MCL 333.17210; MCL
333.2701(b). By the plain and ordinary meanings of "general practitioner," "specialist," and
"physician," it is clear that these professionals practice medicine. Registered professional nurses,
on the other hand, practice nursing. See Cox, supra, p 19. Therefore, § 2169(1)(a) and (c) does
not apply to nurse midwives.
-4-
Plaintiff 's complaint alleged medical malpractice against defendant for the actions of its
"doctors, nurses, a nursing midwife, and residents." Plaintiff attached an affidavit of merit
executed by Dr. Ronald G. Zack, an obstetrician/gynecologist. The affidavit of merit focused on
the standard of care breached by doctors or physicians and staff, and did not offer an opinion
regarding the specific standard of care applicable to or breached by the nurse midwife. As
discovery progressed, it became clear that plaintiff 's claim of medical negligence focused
primarily on the actions of defendant's nurse midwife. Although an obstetrician/gynecologist
does not devote a majority of his or her time to the same health profession as a nurse midwife
pursuant to § 2169(1)(b), plaintiff 's attorney's belief that Dr. Zack would fulfill the requirements
of § 2169 was at least reasonable at the time the complaint was filed because it was not until
discovery was conducted that plaintiff narrowed her malpractice claim to the actions of the nurse
midwife. MCL 600.2912d(1). At the time of plaintiff 's complaint, plaintiff 's claims focused on
the actions of physicians and staff who allegedly failed, in part, to timely diagnose and treat fetal
distress and to fully evaluate his mother. As a physician and obstetrician/gynecologist, Dr. Zack
was certainly qualified under § 2169 to testify as an expert witness against these physicians.
Therefore, plaintiff 's attorney's belief that an obstetrician/gynecologist met the requirements for
an expert witness under § 2169 was reasonable.
III. Expert Testimony
With respect to the dispositive issue, we agree with defendant and the trial court that
plaintiff failed to establish a genuine issue of material fact in response to defendant's summary
disposition motion because the testimony of plaintiff 's experts, Dr. Zack and Dr. Michael Berke,
was not admissible evidence regarding the standard of care applicable to a nurse midwife.
For an expert to be qualified to testify regarding the standard of care, the expert must be
qualified under § 2169(1). Halloran, supra, p 578 n 6. As previously discussed, § 2169(1)(b)
applies here because plaintiff 's claims are directed against defendant's nonphysician nurse
midwife. Under this section, to qualify to offer testimony regarding the appropriate standard of
practice or care of the nurse midwife, plaintiff 's experts must practice in "the same health
profession" as the nurse midwife. MCL 600.2169(1)(b)(i). Nurse midwives are licensed to
practice under MCL 333.17211 and certified under MCL 333.17210. Dr. Zack and Dr. Berke,
however, are obstetricians/gynecologists who are physicians under the Public Health Code
definition, MCL 333.17001(1)(c). These experts, therefore, do not qualify to testify regarding
the standard of care applicable to defendant's nurse midwife.
This conclusion is bolstered by the Legislature's decision to change § 2169 for cases filed
on or after April 1, 1994. The former version of the statute applied only to physician or dental
specialists and required that witnesses who testified regarding the standard of care or practice
must specialize in the same specialty or a related area of medicine, surgery, or dentistry and must
have devoted a substantial portion of professional or instructional time to that practice. The
amended statute at issue here applies to all licensed health professionals and requires that the
expert who testifies about the standard of care or practice teach in or devote a majority of time to
the active clinical practice of "the same health profession . . . ." MCL 600.2169(1)(b). Thus, the
plain language of the statute and the legislative intent in amending the statute ensures that, with
respect to all licensed health professionals, a witness testifying about the standard of care or
practice must practice or teach in the same health profession. Though it may appear reasonable
-5-
that a physician with substantial educational and professional credentials should be able to testify
about the standard of care of a nurse who works in a closely related field, we are constrained by
the plain words of the statute that the expert witness must practice in the "same health
profession." Consequently, we conclude that because nurse midwives are separately licensed
professionals who practice nursing with specialty certification in the practice of nurse midwifery,
obstetricians/gynecologists may not testify about their standard of practice or care.
On a motion for summary disposition, the existence of a disputed fact may only be
established by admissible evidence. MCR 2.116(G)(6); Veenstra v Washtenaw Country Club,
466 Mich 155, 163-164; 645 NW2d 643 (2002). Dr. Zack and Dr. Berke were qualified to
testify at trial regarding how the nurse midwife's alleged breach caused plaintiff 's injury. Their
testimony would be relevant regarding what an obstetrician/gynecologist would have done had
one been called. However, pursuant to the strict requirements of § 2169, their testimony would
not be admissible to establish the standard of care applicable to defendant's nurse midwife.
Plaintiff, therefore, is left without evidence to sustain this part of his claim. Accordingly,
defendant was entitled to summary disposition because plaintiff failed to establish a genuine
issue of material fact regarding the standard of care and the subsequent breach. See Craig v
Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). For this reason, we affirm the trial
court's grant of summary disposition in favor of defendant.5
Affirmed.
/s/ Henry William Saad
/s/ Joel P. Hoekstra
/s/ Jane E. Markey
5
Because this issue is dispositive, we need not decide whether plaintiff proved the causation
element of her claim. And, though arguably we need not decide the affidavit of merit issue
raised in defendant's cross-appeal, we do so because, had defendant been correct on this issue,
this case would not have proceeded to the stage that involves the dispositive issue of expert trial
testimony.
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.