Bates v. Gilbert

736 N.W.2d 566

479 Mich. 451

Joeann BATES, Plaintiff-Appellee, v. Dr. Sidney GILBERT, Defendant-Appellee and D & R Optical Corporation d/b/a Health Center Optical, Defendant-Appellant.

Joeann Bates, Plaintiff-Appellee/Cross-Appellant, v. Dr. Sidney Gilbert, Defendant-Appellant/Cross-Appellee, and D & R Optical Corporation d/b/a Health Center Optical, Defendant-Appellee/Cross-Appellee.

Docket No. 129564.

Docket No. 129565.

Docket No. 129566.

Docket No. 129567.

Docket No. 129569.

Docket No. 129570.

Docket No. 129571.

Docket No. 129572.

Supreme Court of Michigan.

July 25, 2007.

Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, and Worsham, Victor & Ahmad, P.C. (by Richard B. Worsham), Southfield, for Joeann Bates.

Plunkett & Cooney, P.C. (by Robert G. Kamenec and Kristen M. Tolan), Bloomfield Hills, for Sidney Gilbert.

Sullivan, Ward, Bone, Tyler & Asher, P.C. (by Ronald S. Lederman), Southfield, for D & R Optical Corporation.

OPINION

PER CURIAM.

At issue is whether under MCL 600.2912d(1) plaintiff's counsel could have reasonably believed that plaintiff's proposed expert witness, an ophthalmologist, was qualified to sign an affidavit of merit under MCL 600.2169 offered against defendant, an optometrist. Because we conclude that plaintiff's counsel could not have reasonably believed that an ophthalmologist is qualified to testify against an optometrist, we reverse the judgment of the Court of Appeals and remand this case to the trial court for the entry of a dismissal without prejudice.

I. FACTS AND PROCEDURAL HISTORY

Plaintiff brought this medical malpractice action against defendants, alleging that defendant Sidney Gilbert, an optometrist and agent of defendant D & R Optical Corporation, failed to perform glaucoma testing, as he should have, when he examined her. Plaintiff filed an affidavit of merit signed by an ophthalmologist. Defendant Gilbert filed an affidavit of meritorious defense signed by himself, claiming that he did perform glaucoma screening on plaintiff when he examined her, and defendant D & R filed a document stating that it was also relying on Gilbert's affidavit.

The trial court concluded that plaintiff could have reasonably believed that an ophthalmologist could sign the affidavit of merit and denied defendants' motion for summary disposition. While the trial court recognized that an ophthalmologist "is not an optometrist," it reasoned that had an optometrist signed the affidavit of merit, the optometrist would not have been able to attest to causation and that plaintiff's counsel therefore had a reasonable belief that the ophthalmologist was qualified to sign the affidavit of merit. The trial court also entered a default judgment against both defendants with regard to liability, ruling that Gilbert could not file a self-executed affidavit and that D & R could not file a valid affidavit by merely relying on an affidavit filed by another defendant.

On appeal, the Court of Appeals affirmed the judgment with respect to the sufficiency of plaintiff's affidavit, reversed the judgment with respect to the ruling that Gilbert could not submit a self-executed affidavit, and reversed the default judgment with regard to D & R because, although D & R had not filed an affidavit, the trial court erred in assuming that a default was required. Bates v. Gilbert, unpublished opinion per curiam of the Court of Appeals, issued August 16, 2005 (Docket Nos. 252022, 252047, 252792, and 252793), 2005 WL 1959804. The Court of Appeals majority concluded that plaintiff's counsel was faced with a "dearth of case law addressing the applicability of MCL 600.2169(1) to non-physician defendants in general and to optometrists specifically," and that plaintiff's counsel had a reasonable belief that an ophthalmologist could sign the affidavit of merit. Id., slip op at 6. Presiding Judge Donofrio, in dissent, asserted that plaintiff's counsel could not have reasonably believed that plaintiff's affidavit was signed by a qualified expert because "[o]ptometry and ophthalmology are two entirely separate health professions," and thus there was no question that plaintiff's expert had not devoted a majority of his professional time to the practice of the same health profession as that of defendant Gilbert. Id., slip op at 2 (Donofrio, P.J., dissenting).

Defendants sought leave to appeal and plaintiff sought leave to cross-appeal. This Court directed the clerk to schedule oral argument on whether to grant the applications or take other peremptory action.¹ 477 Mich. 894, 722 N.W.2d 433 (2006).

II. STANDARD OF REVIEW

This case involves the interpretation of MCL 600.2912d and MCL 600.2169. Statutory interpretation is an issue of law that is reviewed de novo. Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006). The grant or denial of a motion for summary disposition is also reviewed de novo. McClements v. Ford Motor Co., 473 Mich. 373, 702 N.W.2d 166 (2005).

III. ANALYSIS

A medical malpractice claim can be brought against any "licensed health care professional," defined to include "an individual licensed or registered under article 15 of the public health code. . . ." MCL 600.5838a(1)(b); MCL 600.2912(1);² Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 19, 651 N.W.2d 356 (2002). It is well established that a medical malpractice action may be commenced not only against physicians, but also against nonphysicians who come within the definition of "licensed health care professional," such as nurses, medical technologists, physical therapists, and optometrists. Cox, supra at 19-20, 651 N.W.2d 356; Adkins v. Annapolis Hosp., 420 Mich. 87, 94-95, 360 N.W.2d 150 (1984); McElhaney v. Harper-Hutzel Hosp., 269 Mich.App. 488, 490 n. 3, 711 N.W.2d 795 (2006); Tobin v. Providence Hosp., 244 Mich.App. 626, 670-671, 624 N.W.2d 548 (2001).

MCL 600.2912d(1) provides, in pertinent part:

[T]he 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.

(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. [Emphasis added.]

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 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.

(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 following:

(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 licensed. [Emphasis added.]

Thus, under § 2912d(1) and § 2169(1)(b)(i)-(ii), the plaintiff's counsel must reasonably believe that the expert selected by the plaintiff to address the applicable standard of practice or care in the affidavit of merit devoted a majority of his or her professional time during the year before the alleged malpractice to practicing or teaching the same health profession as the defendant health professional.

Although we recognize that at the affidavit-of-merit stage, the plaintiff's counsel may have limited information available to ensure a proper "matching" between the plaintiff's expert and the defendant, and must therefore be allowed considerable leeway in identifying an expert affiant, Grossman v. Brown, 470...