SHERRI RIEGER V JOHN M CILLUFFO MD
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STATE OF MICHIGAN
COURT OF APPEALS
SHERRI RIEGER and MICHAEL RIEGER,
UNPUBLISHED
February 17, 2011
Plaintiffs-Appellants,
v
No. 295604
Grand Traverse Circuit Court
LC No. 09-027146-NH
JOHN M. CILLUFFO, M.D. and JOHN M.
CILLUFFO, M.D., PLC,
Defendants-Appellees.
Before: SERVITTO, P.J., and GLEICHER and SHAPIRO, JJ.
PER CURIAM.
Plaintiffs appeal by leave granted from the trial court’s order granting defendants’ motion
to strike plaintiffs’ expert witness. We reverse and remand for further proceedings consistent
with this opinion. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
Plaintiffs brought this malpractice action alleging that Dr. Cilluffo, a board-certified
neurosurgeon, negligently performed back surgery (a procedure called BAK cage) on Sherri
Rieger in September 2006. In support of their claims, plaintiffs presented an affidavit of merit
signed by Dr. Gary Lustgarten, a board-certified neurosurgeon.
Defendants took Dr. Lustgarten’s deposition on September 23, 2009, to determine his
qualifications to testify as an expert witness. In his deposition, Dr. Lustgarten acknowledged
that he may have testified in a previous deposition that he planned to stop performing surgeries
in September of 2004. He testified that his plans changed effective January 1, 2005, and that he
performed between eight and ten surgeries after that time and before May or June of 2005. At
that point he stopped performing surgeries full-time, but had performed about a dozen operations
since then, as an assistant surgeon or co-surgeon. His last surgery as active lead surgeon was at
the end of May or the beginning of June of 2005. Dr. Lustgarten testified that he is still engaged
in the full time office practice of neurosurgery, and he hoped to retire in December 2010. His
average workweek is 60 hours. Dr. Lustgarten further testified that he spends about five to ten
percent of his time performing independent medical examinations, five to ten percent of his time
doing medical legal work, and the remainder of his time seeing patients.
Defendants moved to strike Dr. Lustgarten as an expert witness, asserting that in the year
preceding the September 11, 2006 occurrence in this case, he had not devoted the majority of his
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professional time to the active practice of neurosurgery. At the conclusion of the hearing, the
trial court noted that the statute at issue was MCL 600.2169(1)(b), and the question was whether
the witness had devoted the majority of his time to the active clinical practice of neurosurgery in
the year preceding the incident. The trial court questioned the meaning of the phrase active
clinical practice, and whether it was necessary that the witness actually perform neurosurgical
procedures to be qualified. The trial court found it was prudent to grant defendants’ motion, and
allow the parties to take an immediate appeal and get the issue resolved. The trial court stated
that it would leave it to this Court to determine what is meant by clinical practice in the specialty
in the year prior.
This Court granted plaintiff’s application for leave to appeal, limited to the issue raised
on appeal; i.e., whether the trial court erred in its interpretation of MCL 600.2169(1)(b). A trial
court’s ruling concerning the qualifications of a proposed expert is generally reviewed for an
abuse of discretion. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). However,
this case presents an issue of statutory interpretation, a question of law considered de novo on
appeal. Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).
MCL 600.2169(1) provides in 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.
(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.
At the time of the malpractice, Dr. Cilluffo was board certified in neurosurgery, as is Dr.
Lustgarten. Thus, there is no dispute that subsection (1)(a) of the statute is satisfied. It is also
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undisputed that Dr. Lustgarten did not instruct students. Specifically at issue here is whether Dr.
Lustgarten also satisfies subsection (1)(b) and whether the majority of his work during the year
before the incident, that is, September 2005 to September 2006, qualified as engaging in the
active clinical practice of neurosurgery. The statute does not define “active clinical practice,”
but consulting dictionary definitions leads to the conclusion that, contrary to the trial court’s
belief, it does not require the specialist to spend the majority of his or her time performing
surgery. The dictionary defines clinical as: “1. pertaining to a clinic. 2. concerned with or based
on actual observation and treatment of disease in patients rather than experimentation or theory.”
Random House Webster’s College Dictionary (1992).
The trial court found that Dr. Lustgarten “clearly has an ongoing office practice . . . His
credentials are not in dispute.” However, the trial court continued, “But if in fact, the specialty
requirement that’s tied to the occurrence is actual performance of neurosurgical procedures . . . in
the year prior, this physician hasn’t demonstrated that,” (apparently relying on Kiefer v Markley,
283 Mich App 555; 769 NW2d 271 (2009), as supporting this conclusion). In Kiefer, the
defendant physician allegedly negligently performed hand surgery. The proposed expert spent
forty percent of his time practicing the specialty of hand surgery and the remainder of his time
practicing the related specialties of cosmetic and reconstructive surgery. This Court held that the
focus had to be on the area of hand surgery alone. Id. at 559-560. But in Kiefer, there was no
dipute over hand surgery being one specialty and cosmetic surgery and reconstructive surgery
being separate, albeit related, specialties. In the present case, however, there is no evidence that
operative neurosurgery is a separate specialty from non-operative neurosurgery.
Dr.
Lustgarten’s testimony supports this conclusion. He testified unambiguously that he was
“currently involved in the practice of neurosurgery” full-time, and that he was “still engaged in
the full-time practice of office neurosurgery.” Unlike Kiefer, where the proposed expert engaged
in hand surgery, and cosmetic and reconstructive surgery, the only specialty here is
neurosurgery, and all the statute requires is that the expert engages in the active clinical practice
of the same specialty as the defendant, not that he must perform the exact same types of
procedures. The trial court erred in treating the defendant’s practice as a subspecialty of
neurosurgery where there was no evidence that such a subspecialty existed.
Defendants’ argument that Dr. Lustgarten did not engage in any form of active clinical
practice of neurosurgery also fails. Dr. Lustgarten testified that he planned to continue practicing
full-time office neurosurgery only until December 2008 but, by the time of his deposition in
2009, that had not happened and he was still working 60 hours per week seeing patients,
evaluating and conducting conservative care of spinal maladies, and referring patients to
surgeons as needed. How this presents “an inadequate basis” for establishing his qualifications
is not explained by defendants. Dr. Lustgarten undisputedly spent the majority of his
professional time seeing patients, thus satisfying the “active clinical practice” requirement of the
statute. Defendants’ argument implies that the type of work performed has a bearing on what
specialty an expert practices. However, the statute and case law do not support defendants’
approach of breaking down a specialty into its various components and analyzing how much
time the expert devoted to each component of that specialty. The record here shows that Dr.
Lustgarten practiced in the specialty of neurosurgery in 2005, and was still practicing in the
specialty at the time of his 2009 deposition.
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Defendants’ motion to strike Dr. Lustgarten should have been denied by the trial court.
We reverse and remand for further proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Deborah A. Servitto
/s/ Elizabeth L. Gleicher
/s/ Douglas B. Shapiro
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