DREMA WOLFORD V DEBORAH L DUNCANAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
DREMA WOLFORD, Personal Representative of
the Estate of FRANKLIN WOLFORD, Deceased,
July 17, 2008
Genesee Circuit Court
LC No. 03-076327-NH
DEBORAH L. DUNCAN, M.D., DEBORAH
WILSON, P.A.C., and FENTON MEDICAL
Advance Sheets Version
Before: White, P.J., and Wilder and Kelly, JJ.
In this wrongful-death medical-malpractice action, plaintiff appeals as of right from a
jury verdict and court judgment of no cause of action. We affirm.
Plaintiff’s decedent sought treatment from defendant Fenton Medical Center on July 24,
2001. He presented symptoms of pain in the left side of his chest, left arm, and neck. Defendant
Deborah Wilson, a licensed physician’s assistant supervised by defendant Deborah Duncan,
M.D., a family-practice physician, examined him. She found that his pulse and blood pressure
were normal, and he was not short of breath, but he had sounds (i.e., “rales”) in his lungs. He
also had tenderness in his chest wall, and his chest pain did not increase with exertion. She
ordered a chest x-ray and electrocardiogram (EKG). The EKG was normal, but the chest x-ray
showed that some air sacs in his lungs had collapsed. Wilson diagnosed the decedent with
pneumonia and prescribed an antibiotic.
Two days later, the decedent complained of a severe headache, which made him feel like
his head was bursting. An ambulance was called, but the decedent died before he arrived at the
hospital. No autopsy was performed before the decedent’s interment. His remains were
exhumed a year later for a partial autopsy of his lungs and heart. The pathologist found blood
clots in the decedent’s lungs, but the parties’ experts disputed whether these clots formed before
or after his death.
Plaintiff brought this action alleging that the decedent’s recent history of deep vein
thrombosis should have alerted defendants to the possibility of a pulmonary embolism (blood
clot or clots blocking the flow of blood to the lungs) or a cardiac problem requiring urgent care.
Plaintiff alleged that a physician’s assistant and a family-practice physician following the
appropriate standard of care would have immediately hospitalized the decedent for treatment
with blood-thinner medication and additional tests to confirm or rule out an acute pulmonary or
cardiac condition. Defendants maintained that the decedent did not show any indications of a
life-threatening condition when Wilson examined him, and they disputed plaintiff’s claim that
the decedent died from a pulmonary or cardiac condition caused by blood clots.
Plaintiff first argues that the trial court erred in denying her motion to strike Ronald
Nelson as defendants’ expert witness regarding the appropriate standard of care for a physician’s
assistant. Plaintiff argues that Nelson was not qualified as an expert under MCL 600.2169(1)
because his supervising physician specialized in internal medicine, and defendant Wilson’s
supervising physician, Dr. Duncan, specialized in family practice. This issue presents a question
of statutory interpretation, which we review de novo. Tomecek v Bavas, 276 Mich App 252,
260; 740 NW2d 323 (2007).
MCL 600.2169(1) provides:
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
(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
(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
Defendants contend that the terms “specialist” and “general practitioners” refer only to
physicians, and that the criteria set forth in § 2169(1)(a) and (c) therefore apply only to
physicians, not physician’s assistants or other nonphysician health professionals. The statute
does not define the terms “specialist” or “specialty.”
In Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006), our Supreme Court
construed the term “specialty” to mean “a particular branch of medicine or surgery in which one
can potentially become board certified.” In Cox v Flint Bd of Hosp Managers, 467 Mich 1; 651
NW2d 356 (2002), our Supreme Court held that MCL 600.2912a, which sets forth the applicable
standards of care for general practitioners and specialists in medical-malpractice actions, does
not establish a statutory standard of care for nurses. The Court held that the terms “general
practitioner” and “specialist” apply only to physicians; therefore, nurses are subject to the
common-law standard of care. Id. at 18-20. In Brown v Hayes, 270 Mich App 491, 499-500;
716 NW2d 13 (2006), rev’d in part on other grounds 477 Mich 966 (2006), this Court held that
under Cox, the terms “specialist” and “general practitioner” apply only to physicians, and
therefore § 2961(1)(a) and (c) are not applicable in determining the qualifications necessary to
testify regarding the appropriate standard of care for an occupational therapist. Id. at 499-500.
The trial court’s denial of plaintiff’s motion to exclude Nelson’s testimony is consistent
with this Court’s decision in Brown, and with the Supreme Court’s construction of “specialty” as
“a particular branch of medicine or surgery in which one can potentially become board certified”
in Woodard, supra at 561. Section 2961(1)(a) and (c) apply, respectively, to specialists and
general practitioners, but these terms refer only to physicians, not other health professionals. A
physician’s assistant is not a physician; therefore, the criteria set forth in § 2961(1)(a) and (c) do
not apply. Brown, supra.
Further, the statutes pertaining to licensing for physician’s
assistants do not recognize board certification in any specialty. See MCL 333.17060 through
333.17082. A physician’s assistant cannot be a specialist in accordance with the Supreme
Court’s construction of that term in Woodard, supra. It is significant that a physician’s assistant
need have no special certification to work under a physician who is a specialist. Both defendant
and Nelson were eligible to work under either a family-practice physician or an internalmedicine physician.
Plaintiff argues that notwithstanding the foregoing, a different result must obtain in the
instant case because the statutes pertaining to physician’s assistants state that a physician’s
assistant “shall conform to minimal standards of acceptable and prevailing practice for the
supervising physician.” We disagree. While this provision states the standard of care applicable
to a physician’s assistant, and an expert witness must demonstrate familiarity with that standard
to be qualified to offer expert testimony, it does not follow that physician’s assistants are
specialists under § 2961(1)(a).
Thus, neither § 2169(1)(a) nor § 2169(1)(c) apply to defendant’s choice of an expert
witness regarding the appropriate standard of care for Wilson; rather, the expert’s qualifications
are governed by § 2169(1)(b), which applies to both physicians (specialists and general
practitioners) and other health professionals.1 Brown, supra at 500. During the year preceding
the decedent’s death, Nelson devoted a majority of his professional time to active clinical
practice as a physician’s assistant, the same health profession to which Wilson belongs.
Accordingly, he was qualified as an expert witness pursuant to § 2169(1)(b)(i).
Plaintiff next argues that the trial court erred by denying her motion to strike Dr. James
Setchfield’s testimony opining that the decedent probably died from an “intracranial process.”
Plaintiff argues that this testimony was improper because it was speculative and lacked
foundation, contrary to MRE 702. She also complains that defendants failed to disclose Dr.
Setchfield as an expert witness on the issue of causation, and that he was not qualified to offer
this opinion. We review preserved evidentiary issues for an abuse of discretion, Woodard, supra
at 557, and unpreserved issues for plain error affecting plaintiff’s substantial rights, Hilgendorf v
St John Hosp & Med Ctr Corp, 245 Mich App 670, 700; 630 NW2d 356 (2001); MRE 103(a)(1).
At trial, plaintiff cross-examined Dr. Setchfield on these issues and did not challenge his
testimony until he was excused from the stand. At that point, plaintiff objected to the testimony
on the ground that it was speculative, but did not object on the other grounds asserted on appeal.
The trial court ruled:
It can’t be proved or it can’t be disproved is the way he put it. He did
have a medical basis at least in his mind for stating that opinion.
I actually think it was improper, but I think as well that it is a theory that
he supported with the record and I think [plaintiff’s counsel] cross-examined him
on the issue, and I am not going to strike it from the jury’s consideration. I don’t
think it’s worth much, but I am not going to tell them that.
Plaintiff never objected on the basis that defendant failed to alert plaintiff that Dr.
Setchfield would offer causation testimony. Rather, plaintiff cross-examined Dr. Setchfield on
his deposition testimony that he had no opinions on causation. Having opted not to seek the trial
Of course, Nelson’s testimony was also subject to MRE 702. However, plaintiff does not
challenge his testimony on this basis.
court’s intervention on this basis, but rather to present it to the jury as an issue of credibility,
plaintiff cannot now claim that the trial court erred by not striking the testimony on that basis.
We find no plain error affecting plaintiff’s substantial rights. Hilgendorf, supra at 700.
Similarly, we review the court’s decision to let the testimony stand in the context that plaintiff
failed to object when the testimony was offered, and chose instead to cross-examine on the issue,
only to later move to strike the testimony on the basis that it was too speculative. The trial court
did not abuse its discretion by ruling that at that point, in light of the fact that the witness offered
a medical basis for his opinion, relating it to the decedent’s symptoms, and also clearly
acknowledged that it could not be proved or disproved, the court would leave it to the jury to
decide what weight to give to the testimony. Woodard, supra at 557.
Plaintiff also argues that the trial court erroneously permitted Dr. James Martin to testify
regarding the decedent’s cause of death. We reject this claim for similar reasons. Defense
counsel questioned Dr. Martin regarding the care given the decedent on July 24, 2001. Dr.
Martin testified that he found nothing inappropriate in the treatment. Defense counsel continued:
Q. Can you see anything on the 24th that was going to be a predictor of
Mr. Wolford’s death some three days later?
A. Nothing there. No. Nothing.
Q. And today is there any way to predict what caused his death?
A. Complete autopsy.
Q. And we only have an autopsy of the lungs and the heart.
A. That’s what I understand.
Q. Do those autopsy findings predict his death or tell us why he died?
Plaintiff’s counsel then objected: “Objection. Foundation. He’s not a pathologist. He
has not established that within a year—in 2001 or a year prior that he was doing coronary
work.” The court overruled the objection. Defense counsel continued, and told the
witness that counsel was asking him to answer in his capacity as a family practitioner.
Counsel then inquired whether Dr. Martin reviewed autopsy results in his practice, and
asked a series of questions regarding whether patients who die from heart attacks and
pulmonary embolisms have severe headaches immediately before death. Defense
counsel then asked Dr. Martin whether, from a clinical standpoint, the fact that the
decedent had a severe headache immediately before dying was significant. Dr. Martin
answered that the decedent’s massive headache caused him to “wonder if there isn’t
something cerebral going on, in his brain.” Defense counsel continued:
Q. How can something in your brain kill you?
A. You can have several things. You can have a regular artery rupture
and bleed or you can have an aneurysm. At the base of [sic] brain there is a little
circle of vessels. Remember, if you’re old enough to remember the old tires that
would get a balloon on the side, well, that’s sort of what an aneurysm is. It’s a
bulging out in a weak spot and when that ruptures that is like turning a fire hose
loose in your living room and squirting your TV and your electrical and sound
equipment, it goes out. That’s what happened to Mr. Wolford. It sounds like he
Q. Is there any—what else can cause sudden death?
A. Sudden death?
Q. Sudden death.
A. Something cerebrally in the brain, a heart attack, you could have an
arrhythmia, and a big pulmonary embolus. Those cause sudden death.
Q. Anything other than a brain issue that you can think of that would
cause sudden death in Mr. Wolford from your review?
A. You have to restate it. I couldn’t hear you.
Q. Is there anything that you’ve seen about this case that points to the
heart having caused the sudden death?
Q. How about a PE?
Plaintiff’s counsel made no objection to the foregoing testimony, except the initial objection set
forth above regarding the doctor’s response to the autopsy question. We conclude that plaintiff
failed to preserve the challenges raised on appeal. Our review is thus for plain error affecting
plaintiff’s substantial rights. Hilgendorf, supra at 700; MRE 103(a)(1).
We reject plaintiff’s argument that the trial court’s ruling on the initial objection
“permitted Dr. Martin to ramble on for three pages as to the possible causes of Mr. Wolford’s
death.” Nothing precluded plaintiff from objecting on the basis that Dr. Martin was not
identified as a causation witness or that his testimony was speculative. Further, the court’s initial
ruling on the objection to the question whether the autopsy predicted the decedent’s death or told
why he died did not foreclose objection to the testimony plaintiff now challenges on appeal. We
find no plain error affecting plaintiff’s substantial rights. Hilgendorf, supra at 700.
/s/ Helene N. White
/s/ Kurtis T. Wilder
/s/ Kirsten Frank Kelly