PAULINE SHENDUK V HARPER HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
PAULINE SHENDUK,
UNPUBLISHED
October 29, 1999
Plaintiff-Appellant,
v
HARPER HOSPITAL and JOSEPH G. TALBERT,
Nos. 199547, 200389
Wayne Circuit Court
LC Nos. 96-619269 NH
96-641382 NH
Defendants-Appellees.
Before: Whitbeck, P.J., and MacKenzie and Murphy, JJ.
MURPHY, J. (concurring and dissenting).
I concur in the majority's analysis of plaintiff’s arguments because I am compelled to do so by
the recent Supreme Court decision in McDougall v Shanz, 461 Mich 15; 597 NW2d 148 (1999), and
adherence to established rules of statutory construction. I write separately, however, to express my
view that this produces a nonsensical and likely unjust result under the facts of this case. I dissent from
the result reached by the majority because I believe there existed an alternative to the remedy of
dismissal imposed by the trial court.
I first note my concerns with the majority analysis in which I reluctantly concur. Application of
the McDougall holding in this case effectively requires this Court to acquiesce in closing the door of the
courthouse to a seriously injured party because the party’s proffered expert witness, who from the
record appears highly qualified, does not possess the same credentials as that of the treating physician.
This outcome is mandated by McDougall, even though a different result would obtain under judicially
established rules of evidence relating to qualification and admissibility of expert witness testimony. MRE
702.1 Unlike the majority in this case, I do respectfully question the McDougall decision because of its
impact on the judiciary's constitutional authority to govern trials by determining rules of practice and
procedure. By applying the McDougall holding in this case, we may well be witnessing an injustice by
giving superiority to an act of the Legislature that runs contrary to a judicially created rule of evidence
promulgated under the authority of the Michigan Constitution.2
In this case, as the majority concisely explains, however, well-established principles of statutory
interpretation mandate the conclusion that plaintiff’s attorney could not have "reasonably believed,"
under MCL 600.2912d(1); MSA 27A.2912(4)(1), that Dr. Fiore met the requirements for an expert
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witness pursuant to MCL 600.2169; MSA 27A.2169. My concern is that in this case these principles
restrict our ability to afford a more logical construction to the expert witness statute we are now
compelled to apply. As indicated, application of this expert witness statute is compelled by the
Supreme Court's recent decision holding the statute constitutional. McDougall, supra.
MCL 600.2169; MSA 27A.2169 was enacted because the Legislature was dissatisfied with
the manner in which some trial courts, in the medical malpractice arena, exercised their discretion
regarding expert witnesses under MRE 702. See n 3, post. Despite the ability of appellate courts to
check the inappropriate exercise of this discretionary power, the Legislature instead removed all
discretion. In determining that this restrictive statute takes precedence over MRE 702, the Supreme
Court has severely hampered our ability to provide justice. This case is especially illustrative of the
negative effect of the Supreme Court's decision as a doctor who would unquestionably qualify as an
expert witness under MRE 702 is, by operation of MCL 600.2169; MSA 27A.2169, excluded from
participation in this case. Moreover, by operation of MCL 600.2912d(1); MSA 27A.2912(4)(1),
which incorporates the expert witness statute, the courtroom door has in fact been slammed shut in the
face of this plaintiff.
I agree with Justice Cavanagh's concern, McDougall, supra at 58-63, regarding that majority's
determination that rules implicating considerations of "judicial dispatch," and nothing more, remain the
only rules as to which the judiciary may exercise its constitutional grant of supremacy. In exercising
control over previous medical malpractice actions courts could flexibly employ MRE 702 to weed out
claims with no legal merit. In applying this rule courts undoubtedly, and appropriately, considered
factors other than efficiency and judicial dispatch. Because more than efficiency was at issue, however,
the Supreme Court has removed that flexibility. The result in this case follows, and I am not convinced
that the negation of the judiciary's constitutional authority to control this aspect of trial proceedings was
appropriate. Handcuffed as we are, what appears to be a meritorious claim is foreclosed by the
operation of statutes enacted with the primary intent of screening out frivolous actions.
As a threshold to initiating a medical malpractice action, pursuant to MCL 600.2912d(1); MSA
27A.2912(4)(1) the complainant must also file an affidavit of merit. This statute establishes the
requirements of the affidavit, providing in pertinent part:
. . . 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. The affidavit
of merit shall certify that the health professional has reviewed the notice and all medical
records supplied to him or her by the plaintiff's attorney concerning the allegations
contained in the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional's opinion that the applicable standard of practice or
care was breached by the health professional or health facility receiving the notice.
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(c) 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.
(d) The manner in which the breach of the standard of practice or care was the
proximate cause of the injury alleged in the notice.
The only issue of contention regarding the adequacy of this plaintiff’s affidavit concerns whether
plaintiff’s attorney reasonably believed that the signatory of the affidavit qualified as an expert witness
under MCL 600.2169; MSA 27A.2169, which in turn 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.
***
(2) In determining the qualifications of an expert witness in an action alleging
medical malpractice, the court shall, at a minimum, evaluate all of the following:
(a) The educational and professional training of the expert witness.
(b) The area of specialization of the expert witness.
(c) The length of time the expert witness has been engaged in the active clinical
practice or instruction of the health profession or the specialty.
(d) The relevancy of the expert witness's testimony.
In this case, the evidence is undisputed that defendant Dr. Talbert was board certified in general
surgery and in thoracic surgery with a specialty in cardiothoracic surgery. It is further undisputed that
plaintiff’s proffered expert, Dr. Louis Fiore, was board certified in internal medicine and in the
subspecialty of medical oncology and the subspecialty of hematology. As drafted, the statute clearly
requires that when a defendant has board certification in a particular specialty an expert witness must
hold matching board certification. Thus the majority's finding, that "under the clear and unambiguous
statutory language of MCL 600.2169; MSA 27A.2169, Dr. Fiore was not qualified to give expert
testimony in this case,” is the only permissible conclusion. I nevertheless sympathize with plaintiff’s
argument that by such operation the statute can, and in this case has, worked a nonsensical result.
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Plaintiff’s contention is that the statute is arguably ambiguous to the extent that it does not
provide for every possible scenario of alleged medical malpractice. Specifically, in this case plaintiff
argues that Dr. Talbert was acting outside the scope of his specialty when the alleged malpractice
occurred. Plaintiff argues that because the expertise of the specialty may be demonstratively irrelevant
to such a claim, we should find that it could not have been the Legislature's intent to require a matching
specialist under such circumstances. Thus, plaintiff argues, we should find credible the contention that it
was reasonably believed that despite not satisfying MCL 600.2169; MSA 27A.2169 Dr. Fiore would
qualify as an expert sufficient for the purpose of filing the affidavit of merit.
Given the preliminary facts supporting this claim, plaintiff’s argument is compelling. Plaintiff
alleges that Dr. Talbert's malpractice occurred during post-operative treatment with heparin, contending
that treatment with this drug is generic to all medical fields and is not distinct within the cardiothoracic
specialty. Dr. Fiore's curriculum vitae unquestionably demonstrates that he is an expert on the issue of
heparin treatment. Assuming that plaintiff’s theory could be established at trial, the argument that Dr.
Fiore's testimony would be of significant help to the jury is well founded. As the statute reads on its
face, however, Dr. Fiore's lack of knowledge regarding the allegedly irrelevant field of cardiothoracic
surgery prevents the jury from hearing his highly relevant testimony on the critical issue.
The requirement of matching specialties may make sense in the context of alleged malpractice
within the scope of the specialty as it limits testimonial privileges to those doctors with equivalent
knowledge of and experience in the subject area.3 If a doctor commits malpractice while acting outside
the scope of his specialty, however, the statutory requirement operates to limit testimony to that of a
doctor potentially as unqualified as the defendant in the area of practice at issue, a result blatantly
counterintuitive.4 On its face the statute wholly fails to provide for such a scenario, suggesting no avenue
by which parties can ensure that under such circumstances the best expert testifies. As a consequence
today's conclusion results.
As we are compelled to so enforce the matching specialist requirement, a major intent of the
statute is effectively eviscerated. I cannot, however, reconcile my reservations about the statute with a
legal analysis that would permit the result plaintiff prays we reach. There simply is none. The language
of the statute is clear and unambiguous - plaintiff’s suggestion notwithstanding - and we must therefore
apply its plain meaning. See Rickner v Frederick, 459 Mich 371, 378; 590 NW2d 288 (1999). That
it is apparent that the Legislature made no provision for circumstances such as these, unfortunately does
not change our duty. In fact, it is arguable that our adherence to the "plain meaning" principle is further
mandated by the history of the statute. The statutory language we now consider is that of the 1993
version of the statute. Prior to this most recent amendment the pertinent language of the 1986 version
read:
(1) In an action alleging medical malpractice, if the defendant is a specialist, a
person shall not give expert testimony on the appropriate standard of care unless the
person is or was a physician licensed to practice medicine or osteopathic medicine and
surgery or a dentist licensed to practice dentistry in this or another state and meets both
of the following criteria:
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(a) Specializes, or specialized at the time of the occurrence which is the basis
for the action, in the same specialty or a related, relevant area of medicine or
osteopathic medicine and surgery or dentistry as the specialist who is the defendant in
the medical malpractice action. [Emphasis added.]
"A change in statutory language is presumed to reflect a change in the meaning of the statute." Eaton
Farm Bureau v Eaton Township, 221 Mich App 663, 668; 561 NW2d 884 (1997). Thus, the
increased restriction of the current 1993 version, not allowing for specialists of a related discipline,
indicates that strict adherence is intended.
Despite my inability to interpret these statutes in accord with plaintiff’s argument, I would
nevertheless reverse the trial court's dismissal in Docket No. 199547. In VandenBerg v VandenBerg,
231 Mich App 497, 502; 586 NW2d 570 (1998), where the plaintiff failed to file an affidavit of merit at
the time she filed the complaint, this Court concluded that MCL 600.2912d; MSA 27A.2912(4) does
not mandate dismissal for noncompliance.5 Noting that the trial court in that case did not consider any
other sanction for the plaintiff’s noncompliance, this Court determined that the purpose of deterring
frivolous suits was fulfilled because the defendants received service of the appropriate affidavit of merit
at the same time as they received service of the complaint. Id. at 502-503. Although, as concluded
under the mandated interpretation of the statutes, this plaintiff’s timely affidavit of merit was technically
inappropriate, I believe that this affidavit similarly satisfied the statutory purpose.
From the record, it appears that the trial court's review of plaintiff’s affidavit of merit was
cursory at best. Noting only that the two doctors' specialties did not match, and dismissing the action
on that basis, the court refused to consider plaintiff’s contention that the affidavit supported the
meritorious nature of the claim of malpractice related to the hematological aspects of plaintiff’s
treatment. As discussed, I believe plaintiff’s argument has merit. I further believe that close
examination of the affidavit and Dr. Fiore's credentials supports that argument. I would find that in
failing to fully consider the affidavit, and by contemplating no remedy other than dismissal, the trial
court's review did not serve the purpose of the statute.
Dismissal not mandated by the statute, the trial court could have entered an alternative order. In
the most obvious possibility, reflective of the remedy provided by MCL 600.2912d(2); MSA
27A.2912(4)(2), the court could have required plaintiff to refile a compliant affidavit within twenty-eight
days. Though it may be argued that dismissal without prejudice did not wholly foreclose plaintiff’s
action - the trial court did acknowledge plaintiff’s ability to refile the entire complaint - I do not believe
that these alternative orders are practically equivalent. An order requiring plaintiff to secure a new
affidavit in twenty-eight days would unquestionably have demanded less to sustain the claim than plaintiff
was forced to do under the dismissal order. As indicated by the majority in its discussion of Docket
No. 200389, for whatever the reason plaintiff was unable to refile the papers necessary to reinitiate her
action, of which a new affidavit was but one item, within the time remaining under the statute of
limitations. Had the court better evaluated the merit of plaintiff’s claim, in light of the relevant though
technically inappropriate affidavit, a more specific order requiring mere correction of the technical failing
would perhaps have resulted in the maintenance of this non-frivolous action. Given the failure to
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consider alternative remedies, I would reverse on a finding that imposition of the harsh sanction of
dismissal was inappropriate. Id. at 503.
As the majority has affirmed the trial court, however, I would respectfully urge the Supreme
Court to utilize this case as a vehicle to reconsider its ruling in McDougall and its attendant
ramifications. As my comments above indicate, deference to the Legislature should not come at the
expense of the judiciary’s constitutional responsibility to provide for and protect the practice and
procedures established to assure that justice occurs.
/s/ William B. Murphy
1
MRE 702 provides:
If the court determines that recognized scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion or otherwise.
2
“The Supreme Court shall by general rules establish, modify, amend and simplify the practice and
procedures in all courts of this state . . . .” (Const 1963, art 6, § 5.)
3
See Report of the Senate Select Committee on Civil Justice Reform, issued September 26, 1995
(emphasis added), stating in pertinent part:
As a practical matter, in many courts merely a license to practice medicine is needed to
become a medical expert on an issue.
This has given rise to a group of national professional witnesses who travel the
country routinely testifying for plaintiffs in malpractice actions. These "hired guns"
advertise extensively in professional journals and compete fiercely with each other for
the expert witness business. For many, testifying is a full-time occupation and they
rarely actually engage in the practice of medicine. There is a perception that these so
called expert witnesses will testify to whatever someone pays them to testify about.
This proposal is designed to make sure that expert witnesses actually
practice or teach medicine. In other words, to make sure that experts will have
firsthand practical expertise in the subject matter about which they are testifying.
In particular, with the malpractice crisis facing high-risk specialists, such as
neurosurgeons, orthopedic surgeons and ob/gyns, this reform is necessary to insure that
in malpractice suits against specialists the expert witnesses actually practice in the same
specialty. This will protect the integrity of our judicial system by requiring real experts
instead of "hired guns."
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4
See McDougall, supra, Cavanagh, J. dissenting, at 67, (anticipating precisely the scenario now faced
and concluding that under such circumstances the statute frustrates its purpose).
5
Cf. Scarsella v Pollak, 232 Mich App 61; 591 NW2d 257 (1998), in which a separate panel of this
Court reached the opposite conclusion where the plaintiff filed his affidavit of merit only after the statute
of limitations had run. Although the Scarsella panel explicitly distinguished VandenBerg in a footnote,
the analyses in the bodies of these two opinions appear contradictory.
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