Crego v. Edward W. Sparrow Hosp. Ass'n

327 Mich.App. 525

937 N.W.2d 380

Kelley CREGO, Plaintiff-Appellant,

v.EDWARD W. SPARROW HOSPITAL ASSOCIATION, Sparrow Health System, Shirley Lima, M.D., and Amber McLean, D.O., Defendants-Appellees.

No. 338230

Court of Appeals of Michigan.

Submitted October 3, 2018, at Lansing.

Decided April 16, 2019, at 9:10 a.m.

Mark Granzotto, PC, Royal Oak (by Mark Granzotto ) and McKeen & Associates, PC, Detroit (by Brian J. McKeen and David T. Tirella ) for Kelley Crego.

Johnson & Wyngaarden, PC (Robert M. Wyngaarden and Michael L. Van Erp ) Okemos, for Edward W. Sparrow Hospital Association and Sparrow Health System.

Collins Einhorn Farrell PC (by Michael J. Cook ) for Amber McLean, D.O.

Before: Cavanagh, P.J., and Markey and Letica, JJ.

Markey, J.

In this medical malpractice action, plaintiff appeals by delayed leave granted the trial court’s order dismissing her claim against defendant Amber McLean, D.O. To the extent that plaintiff’s claims against defendants Edward W. Sparrow Hospital Association and Sparrow Health System were based on vicarious liability arising from Dr. McLean’s conduct, the court also summarily dismissed those claims.¹ The trial court rejected plaintiff’s affidavit of merit executed by Steven D. McCarus, M.D., determining that the affidavit failed to satisfy the requirements of MCL 600.2912d(1) and MCL 600.2169(1)(b)(i ). The court concluded that Dr. McCarus and Dr. McLean did not engage in the practice of the "same health profession" for purposes of MCL 600.2169(1)(b)(i ), because McLean is a doctor of osteopathy and McCarus is a doctor of allopathy—that is, a doctor of medicine. Considering that the alleged malpractice concerns a laparoscopic hysterectomy, the relevant field of medicine implicated in this case is the specialty of obstetrics-gynecology. Because McLean and McCarus are both board-certified obstetrician-gynecologists (OB-GYNs), we hold that the trial court erred by rejecting plaintiff’s affidavit of merit. The fact that McLean is a licensed osteopathic physician, a D.O., and McCarus is a licensed allopathic physician, an M.D., is not pertinent in analyzing MCL 600.2169(1)(b)(i ). It is irrelevant because the specialty of obstetrics-gynecology governs the standard of practice or care under MCL 600.2169(1)(a). This in turn means that the only question to answer under MCL 600.2169(1)(b)(i ) is whether McCarus, during the year immediately preceding the alleged act of malpractice, devoted a majority of his professional time to the active clinical practice of obstetrics-gynecology. There is simply no dispute that McCarus did so. Accordingly, we reverse the trial court’s ruling granting summary disposition of those claims related to McLean’s alleged malpractice in performing the laparoscopic hysterectomy.

We review de novo a trial court’s decision on a motion for summary disposition. Maiden v. Rozwood , 461 Mich. 109, 118, 597 N.W.2d 817 (1999). The construction of MCL 600.2169 presents a question of law subject to de novo review. Woodard v. Custer , 476 Mich. 545, 557, 719 N.W.2d 842 (2006). "[T]his Court reviews a trial court's rulings concerning the qualifications of proposed expert witnesses to testify for an abuse of discretion." Id. A trial court abuses its discretion when its decision falls outside the range of principled and reasonable outcomes. Id. Additionally, "[a] trial court necessarily abuses its discretion when it makes an error of law." Pirgu v. United Servs. Auto. Ass’n , 499 Mich. 269, 274, 884 N.W.2d 257 (2016).

"When interpreting a statute, the primary rule of construction is to discern and give effect to the Legislature’s intent, the most reliable indicator of which is the clear and unambiguous language of the statute." Perkovic v. Zurich American Ins. Co. , 500 Mich. 44, 49, 893 N.W.2d 322 (2017). Such language must be enforced as written, "giving effect to every word, phrase, and clause." Id. Further judicial construction is only permitted when statutory language is ambiguous. York Charter Twp. v. Miller , 322 Mich. App. 648, 659, 915 N.W.2d 373 (2018). When determining the Legislature’s intent, statutory provisions are not to be read in isolation; rather, they must be read in context and as a whole. In re Erwin Estate , 503 Mich. 1, 11; 921 N.W.2d 308 (2018).

MCL 600.2912d(1) requires a medical malpractice plaintiff to "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." And MCL 600.2169 provides, in relevant 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) ... [D]uring 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.^[2]

In Woodard , 476 Mich. at 558-559, 719 N.W.2d 842, our Supreme Court construed the language in MCL 600.2169(1)(a), observing:

Although specialties and board certificates must match, not all specialties and board certificates must match. Rather, § 2169(1) states that "a person shall not give expert testimony on the appropriate standard of practice or care unless ...." (Emphasis added.) That is, § 2169(1) addresses the necessary qualifications of an expert witness to testify regarding the "appropriate standard of practice or care," not regarding an inappropriate or irrelevant standard of medical practice or care. Because an expert witness is not required to testify regarding an inappropriate or irrelevant standard of medical practice or care, § 2169(1) should not be understood to require such witness to specialize in specialties and possess board certificates that are not relevant to the standard of medical practice or care about which the witness is to testify....

Further, § 2169(1) refers to "the same specialty" and "that specialty." It does not refer to "the same specialties" and "those specialties." That is, § 2169(1) requires the matching of a singular specialty, not multiple specialties.

"[I]f a defendant physician is a specialist, the plaintiff’s expert witness must have specialized in the same specialty as the defendant physician at the time of the alleged malpractice." Woodard , 476 Mich. at 560-561, 719 N.W.2d 842. Moreover, under MCL 600.2169(1)(a), a proposed expert witness must hold the same board certification as the party against whom the testimony is offered. Id. at 562-563, 719 N.W.2d 842. But "the plaintiff’s expert does not have to match all of the defendant physician’s specialties; rather, the plaintiff’s expert only has to match the one most relevant specialty." Id . at 567-568, 719 N.W.2d 842. And the one most relevant specialty is "the specialty engaged in by the defendant physician during the course of the alleged malpractice...." Id . at 560, 719 N.W.2d 842.

In this case, the requirements of Subsection (1)(a) were satisfied because both doctors are board-certified OB-GYNs. Indeed, the only "specialty" implicated in this case is obstetrics-gynecology, and the application of MCL 600.2169(1)(a) requires matching credentials in that specialty field. There is no assertion that Subsection (1)(a) requires McCarus to be an osteopathic physician like McLean. And the relevant standard of practice or care associated with performing the laparoscopic hysterectomy is set by reference to the practice of obstetrics-gynecology.³ Because plaintiff’s affidavit of merit complies with Subsection (1)(a) of MCL 600.2169, the next step in the analysis, and the focal point of this appeal, concerns whether Subsection (1)(b)(i ) was satisfied.

The parties appear to agree that McCarus’s affidavit of merit satisfied the one-year clinical-practice component of MCL 600.2169(1)(b)(i ) but only in regard to whether McCarus practiced obstetrics-gynecology during the one-year period. Defendants proceed to argue that Subsection (1)(b)(i ) was not fully satisfied because the one-year clinical-practice provision had to also be established in connection with the health profession of osteopathic medicine, and McCarus is an allopathic physician. We conclude that defendants and the trial court have misconstrued the demands of Subsection (1)(b)(i ) of MCL 600.2169.

When examining Subsection (1)(b)(i ) in context and together with Subsection (1)(a), it becomes evident that if matching credentials in satisfaction of Subsection (1)(a) are established, the very same question of matching credentials is not reexamined or revisited when analyzing compliance with Subsection (1)(b)(i ). Rather, if Subsection (1)(a) is established by showing matching credentials—here, board certification in the specialty of obstetrics-gynecology—the next step in the analysis entails a determination under Subsection (1)(b) as to whether the plaintiff’s expert actually practiced or taught in the specialty matched under Subsection (1)(a) for the requisite period. Therefore, in this case, the only pertinent question regarding compliance with Subsection (1)(b)(i ) is whether McCarus devoted a majority of his professional time to the...