SCOTT JOHNSON V SULTAN BHIMANI MD
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STATE OF MICHIGAN
COURT OF APPEALS
SCOTT JOHNSON and KATHLEEN JOHNSON,
UNPUBLISHED
February 10, 2011
Plaintiffs-Appellants,
v
No. 292327
Saginaw Circuit Court
LC No. 04-054130-NH
SULTAN BHIMANI, M.D. and ADVANCED
DIAGNOSTIC IMAGING, P.C.,
Defendants-Appellees,
and
COVENANT HEALTHCARE SYSTEM,
Defendant.
Before: CAVANAGH, P.J., and HOEKSTRA and GLEICHER, JJ.
PER CURIAM.
Plaintiffs appeal as of right from the trial court’s order that granted defendants’ motion to
strike plaintiffs’ expert radiology witness, Harold Parnes, M.D., and dismissed plaintiffs’ lawsuit
with prejudice. We affirm.
Plaintiff Scott Johnson1 suffered pelvic injuries that eventually required surgery as a
result of falling off a ladder. Plaintiffs alleged that defendant Sultan Bhimani, M.D., a
radiologist at the hospital, initially failed to diagnose plaintiff’s injury causing complications and
a worsening of his condition.
Plaintiffs argue that the trial court incorrectly determined that Parnes was not qualified as
an expert witness under MCL 600.2169. We disagree.
1
References to “plaintiff” in the singular throughout this opinion are to Scott Johnson because
Kathleen Johnson’s claim for loss of consortium is derivative to his primary claim of medical
malpractice.
-1-
A trial court’s ruling regarding a proposed expert’s qualifications to testify is reviewed
for an abuse of discretion. Kiefer v Markley, 283 Mich App 555, 556; 769 NW2d 271 (2009).
An abuse of discretion occurs when the decision results in an outcome falling outside the range
of principled outcomes. Id.
In malpractice actions, parties are obligated to provide an expert witness to articulate the
applicable standard of care involved. MCL 600.2912d(1)(a); Tate ex rel Estate of Hall v Detroit
Receiving Hosp, 249 Mich App 212, 216; 642 NW2d 346 (2002). A person cannot give expert
testimony in a malpractice suit unless the person meets the list of qualifications of MCL
600.2169. MCL 600.2169(1); Grossman v Brown, 470 Mich 593, 599; 685 NW2d 198 (2004).
MCL 600.2169(1)(a) specifically states that an expert witness must “specialize[ ] at the time of
the occurrence that is the basis for the action” in the same specialty as the defendant physician.
The specialty requirement is tied to the specialty engaged in during the occurrence of the alleged
malpractice and not unrelated specialties that a defendant physician may hold. Halloran v Bhan,
470 Mich 572, 577 n 5; 683 NW2d 129 (2004). The specialty or subspecialty that the defendant
physician was practicing at the time of the alleged malpractice is the one most relevant specialty
or subspecialty that must be matched by the proposed expert. Woodard v Custer, 476 Mich 545,
566; 719 NW2d 842 (2006). It is not disputed that diagnostic radiology is the one most relevant
specialty involved here, and that both defendant Bhimani and Parnes were board certified in
general diagnostic radiology. Thus, the requirements of MCL 600.2169(1)(a) were met.
However, whether Parnes satisfied MCL 600.2169(1)(b) is the dispute. The trial court
granted defendants’ motion to strike Parnes as an expert because it found he had not devoted the
majority of his professional time during the year preceding the alleged malpractice practicing
diagnostic radiology. According to MCL 600.2169(1)(b), the proposed expert must have
devoted a majority of his or her professional time during the year immediately preceding the date
on which the alleged malpractice occurred to practicing or teaching the one most relevant
specialty the defendant physician was practicing at the time of the alleged malpractice. In
Kiefer, 283 Mich App at 559, this Court held that “majority” of professional time meant that a
proposed expert physician was required to “spend greater than 50 percent of his or her
professional time practicing the relevant specialty the year before the alleged malpractice.”
Here, Parnes was questioned extensively regarding how he spent his professional time.
Parnes stated that, although the specialty he engaged in was determined by the needs of his
patients, he spent the majority of his professional time in neuroradiology. Parnes estimated that
he spent 50 to 80 percent of his professional time in neuroradiology. Therefore, Parnes was not
able to meet the requirements of MCR 600.2169(1)(b) because he did not spend more than 50
percent of his professional time practicing the one relevant specialty of general diagnostic
radiology.
Plaintiffs argue that, because neuroradiology is a subspecialty of diagnostic radiology and
there is considerable overlap of the fields, the trial court should have found that Parnes spent the
majority of his time practicing diagnostic radiology. Parnes explained that neuroradiology was a
subspecialty of general radiology that involved imaging of the brain, spine, and nerves, with
different modalities. Defendant Bhimani also stated that neuroradiology was a branch of
radiology that deals with the brain, spinal cord, and central nervous system, and that general
radiology is the branch dealing with imaging the rest of the body, including the lumbar region
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and pelvis at issue here. Parnes indicated that muscular skeletal films and diagnostic films would
be within the realm of neuroradiology if they were related to the spine or even sacroiliac joint,
but that they were also in the realm of diagnostic radiology. Parnes also asserted that
components of neuroradiology were muscular skeletal because all systems worked together as
one, meaning that muscular skeletal was related to the nervous system.
However, general diagnostic radiology and neuroradiology are two distinct specialties,
and practicing neuroradiology is not the same as practicing general diagnostic radiology. A
“specialty” is a particular branch of medicine or surgery in which one can potentially become
board certified. Woodard, 476 Mich at 561. A “subspecialty” is a particular branch of medicine
or surgery in which one can potentially become board certified that falls under a specialty or
within the hierarchy of that specialty. Id. at 562. “A subspecialty, although a more
particularized specialty, is nevertheless a specialty.” Id. For the purposes of MCL
600.2169(1)(b), a subspecialty is a specialty. Id. at 566 n 12. Therefore, the specialties of
diagnostic radiology and neuroradiology are distinct from each other.
The case of Hamilton v Kuligowski, 261 Mich App 608, 611-612; 684 NW2d 366 (2004),
rev’d sub nom Woodard v Custer, 476 Mich 545, 566; 719 NW2d 842 (2006), is factually
similar to the instant case because the defendant’s one relevant specialty was internal medicine
and the proposed expert also specialized in internal medicine, but spent the majority of his
professional time practicing a subspecialty of internal medicine, infectious diseases. This Court
held that the proposed expert was qualified as a witness because, by practicing the infectious
diseases subspecialty, “he devoted the majority of his professional time to the ‘active clinical
practice’ of defendant’s ‘internal medicine specialty.’” Hamilton, 261 Mich App at 611-612.
However, the Supreme Court reversed, finding that the proposed expert witness was not
qualified under MCL 600.2169(1)(b) because he did not devote a majority of his professional
time to practicing the one most relevant specialty or subspecialty that the defendant physician
was practicing at the time of the alleged malpractice. Woodard, 476 Mich at 578-579.2 Even
though the proposed expert practiced a subspecialty of the defendant’s one most relevant
specialty, the Supreme Court specifically found that the “plaintiff’s proposed expert witness did
not devote a majority of his time to practicing or teaching general internal medicine. Instead, he
devoted a majority of his professional time to treating infectious diseases.” Id. at 577-578.
Similarly, here, Parnes did not devote a majority of his time practicing the one most relevant
specialty of defendant Bhimani, i.e., diagnostic radiology. Rather, Parnes testified that he
devoted the majority of his professional time to neuroradiology. Therefore, the trial court did not
abuse its discretion in finding that Parnes was not qualified as an expert witness under MCL
600.2169(1)(b).
Affirmed.
/s/ Mark J. Cavanagh
/s/ Joel P. Hoekstra
2
Hamilton v Kuligowski was decided as a companion case to Woodard v Custer.
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