TREVA LOWERY V MICHAEL R BEER MD
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STATE OF MICHIGAN
COURT OF APPEALS
TREVA LOWERY,
UNPUBLISHED
February 24, 2009
Plaintiff-Appellant,
v
No. 280836
Genesee Circuit Court
LC No. 05-081341-NH
MICHAEL R. BEER, M.D., MICHAEL J.
MACKSOOD, D.O., and UROLOGICAL
SERVICES, P.C.,
Defendants-Appellees.
Before: Wilder, P.J., and Cavanagh and Murray, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right from the trial court’s order
granting defendants’ motion for a directed verdict after a jury was selected, but before any
witnesses were called. We reverse and remand.
Plaintiff filed this medical malpractice action alleging that defendants Drs. Michael Beer
and Michael Macksood negligently damaged her spleen, requiring its removal, during surgery to
remove plaintiff’s left kidney for transplant to her brother. At trial, after a jury was selected but
before any evidence was introduced, defendants moved for a directed verdict, arguing that
although plaintiff’s proposed expert, Dr. Ralph Duncan, met the qualification requirements of
MCL 600.2169 to testify as an expert, he was not competent to offer expert testimony in this
case because he was not familiar with the medical facilities available to plaintiff in the local Flint
community. The trial court agreed and granted defendants’ motion.
On appeal, plaintiff argues that the trial court erred both procedurally and substantively in
granting defendants’ motion for a directed verdict. Initially, and as suggested by the trial court,
to the extent defendants’ motion was improperly characterized as one for a directed verdict, it
properly could have been treated as a motion for summary disposition, presumably under MCR
2.116(C)(10). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual
support of a claim.
Summary disposition is appropriate under MCR 2.116(C)(10) if there is no
genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law. A genuine issue of material fact exists when the
record, giving the benefit of reasonable doubt to the opposing party, leaves open
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an issue upon which reasonable minds might differ. [Allstate Ins Co v Dep’t of
Mgt & Budget, 259 Mich App 705, 709-710; 675 NW2d 857 (2003).1]
Thus, we now address whether the trial court’s determination that Dr. Duncan could not
testify about the appropriate standard of care because he was not familiar with the facilities
available in the local community was substantively correct.
The correct standard of care in a medical malpractice action is determined as a matter of
law. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 16 n 16; 651 NW2d 356 (2002). The trial
court’s decision whether an expert is qualified to testify regarding the specifics of the standard of
care is reviewed for an abuse of discretion. Bahr v Harper-Grace Hospitals, 448 Mich 135, 141;
528 NW2d 170 (1995).
Here, there was no dispute Dr. Duncan was qualified as an expert. The question was
whether he could competently testify as to “the recognized standard of practice or care within
that specialty as reasonably applied in light of the facilities available in the community or other
facilities reasonably available under the circumstances . . . .” MCL 600.2912a(1)(b).2
Dr. Duncan had the same certification as the defendant physicians. Further, he explained
in his deposition that all board certified urologists receive virtually the same education and
training, and that all renal transplant facilities are required to adhere to the same qualifications.
With respect to the surgery at issue here, he stated that he was familiar with the standard of care
in the local community, explaining:
All urologists in the United States are trained similarly in nationally
approved resident programs which are monitored by the national certifying bodies
and the testing is, again, a national examination. And also, all urologists receive
additional postgraduate education at the same institutions and meetings so that the
education and training is virtually the same for all urologists.
However, although this evidence indicates that Dr. Duncan was familiar with the standard of care
for urologists and that the standards for urologists and renal transplant facilities are similar
nationally, Dr. Duncan was not qualified to give testimony under MCL 600.2912a(1)(b), because
he could not also testify about the standard of care “in light of the facilities available in the
1
The trial court rejected plaintiff’s argument that the motion could not be considered because it
was untimely under the court’s scheduling order, and given the circumstances, that conclusion
was not an abuse of discretion.
2
Plaintiff argues that an expert familiar with the standard of care in a community may testify
concerning the standard of care in that community, although he has not practiced in the
community, and although he has not spoken to physicians there. Robins v Garg (On Remand),
276 Mich App 351, 356; 741 NW2d 49 (2007). Robins, however, was applying MCL
600.2912a(1)(a), which contains a different standard than under (1)(b). Also, there was
sufficient testimony in Robins to satisfy the community standard criteria under that subsection.
Id.
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community or other facilities reasonably available under the circumstances . . . .” MCL
600.2912a(1)(b); Cox, supra at 17 n 17. Dr. Duncan’s deposition testimony was unequivocal in
that he had never been to the Flint area, and thus, was unfamiliar with both the hospital where the
alleged negligence occurred or any other facility in the community. As the trial court noted, this
defect could have been remedied had Dr. Duncan testified at trial and taken the opportunity to
review or inspect local facilities.
Nevertheless, this defect should not have been fatal to plaintiff’s case at the pre-trial
stage. The trial court ruled, and defendant argues, that because plaintiff’s expert could not testify
to the facilities available in the community, plaintiff could not prevail as a matter of law.
However, MCL 600.2912a(1)(b) is not necessarily geared to only an expert’s testimony. Instead,
it speaks to plaintiff’s burden of proof in general, and as plaintiff argues, her burden can be met
through plaintiff’s expert or other qualified witnesses, including defendants themselves if called
as adverse or hostile witnesses and found to be qualified to testify as to the facilities available in
the Flint area. Hence, plaintiff should have been given the opportunity to establish the standard
under MCL 600.2912a(1)(b) through her entire case in chief, and if she failed to do so, her case
would have been properly dismissed by a directed verdict. The case, however, never reached
that point.
Reversed and remanded. We do not retain jurisdiction. Costs to plaintiff as prevailing
party.
/s/ Kurtis T. Wilder
/s/ Mark J. Cavanagh
/s/ Christopher M. Murray
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