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Jones v. Botsford Continuing Care Corp.

Court of Appeals of Michigan

April 7, 2015

MILDRED JONES, Personal Representative of the ESTATE OF AMOS JONES, Plaintiff-Appellant/Cross-Appellee,
v.
BOTSFORD CONTINUING CARE CORPORATION, Defendant-Appellee/Cross-Appellant, and DR. THOMAS SELZNICK and LIVONIA FAMILY PHYSICIANS, PC, Defendants-Appellees

Oakland Circuit Court. LC No. 2012-130023-NH.

For MILDRED JONES PERSONAL REPRESENTATIVE, Plaintiff-Appellant-Cross Appellee: ANDREW F KAY, DETROIT, MI; MARK R BENDURE, DETROIT, MI.

For BOTSFORD CONTINUING CARE CORPORATION, Defendant-Appellee-Cross Appellant: LINDA M GARBARINO, DETROIT, MI.

For DR THOMAS SELZNICK, Defendant-Appellee: ROBERT F RILEY, DEARBORN, MI.

Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ. DONOFRIO, P.J. (concurring in part and dissenting in part).

OPINION

Page 16

[310 Mich.App. 195] Karen Fort Hood, J.

Plaintiff, Mildred Jones, as the personal representative of the estate of her husband, Amos Jones, appeals from the trial court order granting summary disposition in favor of defendants, Botsford Continuing Care Corporation, Dr. Thomas Selznick, and Livonia Family Physicians, PC, in this medical malpractice and wrongful-death lawsuit. For the reasons set forth in this opinion, we reverse and remand.

I. FACTS

Amos Jones, an elderly man, was admitted to Botsford Continuing Care (BCC), an extended care facility, for care following hospitalization for a stroke. As a [310 Mich.App. 196] result of the stroke, Jones had difficulty swallowing and so during his hospitalization, a percutaneous endoscopic gastrostomy (PEG) tube was surgically inserted through his abdominal wall and into his stomach in order to provide nutrition. When Jones was admitted to BCC on November 12, 2007, the PEG tube was in place. According

Page 17

to the hospital nursing progress notes, during his stay and while in an agitated state, Jones pulled out the PEG tube. The PEG tube was reinserted approximately eight hours later. Plaintiff's complaint alleged that the PEG tube was improperly reinserted and that as a result, gastric contents and nutritional material were released outside Jones's stomach and into his abdominal space, causing a massive infection that killed him.

Before filing suit, in accordance with MCL 600.2912b(1), plaintiff mailed a notice of her intent to file claim to the individuals and entities later named as defendants. The notice satisfied the requirements of MCL 600.2912b(4).

Pursuant to MCL 600.2912b(7), each recipient of the notice was required to " furnish to the claimant . . . a written response . . . ." The statute requires that a potential defendant's written response contain a statement regarding four items, including " [t]he factual basis for the defense to the claim." MCL 600.2912b(7)(a). However, defendants each failed to send a written response, thus violating this statutory mandate.

When plaintiff filed the complaint initiating this lawsuit, her attorney attached two affidavits of merit as required by MCL 600.2912d. One of the affidavits attested to physician malpractice and was signed by Dr. Gregory Compton, who in his affidavit stated that at the relevant time he " was a licensed and practicing [310 Mich.App. 197] INTERNAL MEDICINE and GERIATRIC MEDICINE Doctor . . . ." The other affidavit attested to nursing malpractice and was signed by Amy Ostrolenk, who averred that she was an " R.N." and " was . . . licensed and practicing nursing."

As required by MCL 600.2912e, defendants filed affidavits of meritorious defense. Two affidavits were filed in response to the claim of physician malpractice. The one submitted by BCC (which plaintiff alleged was liable for any negligence by Dr. Selznick under an agency theory) was signed by Dr. Alan Neiberg, who averred that during the relevant period he was " board certified in the specialty of internal medicine, and . . . devoted a majority of [his] professional time to the active clinical practice of my profession of internal medicine." The affidavit submitted on behalf of Dr. Selznick personally was signed by Dr. Selznick himself and averred that he is " certified by the American Board of Family Practice and ha[s] a Certificate of Added Qualification in Geriatrics."

BCC's affidavit of meritorious defense filed in response to the claim of nursing malpractice was signed by Marguerite Debello, who averred that she was " a registered nurse" and during the relevant period " devoted a majority of my professional time to the active clinical practice of my profession of nursing."

MCL 600.2912d(1) and MCL 600.2912e(1) respectively require that the affidavits of merit and meritorious defense be " signed by a health professional who the [party]'s attorney reasonably believes meets the requirements for an expert witness under section 2169." Accordingly, per the requirements for an expert witness under MCL 600.2169(1)(a), each party's attorney must have had a reasonable belief that their respective affiant " specialize[d] at the time of the [310 Mich.App. 198] 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." [1] MCL 600.2169(1)(a),

Page 18

which refers to specialists, does not apply to nurses, see Cox v Flint Bd of Hosp Managers, 467 Mich. 1, 18, 22; 651 N.W.2d 356 (2002) (addressing MCL 600.2912a, which sets forth the standard of care in medical malpractice cases), but MCL 600.2169(1)(b) does, because it applies to all health professionals. This provision requires that during the year preceding the incident, the testimonial expert have devoted a majority of his or her professional time to " [t]he active clinical practice of the same health profession in which the [defendant] . . . is licensed . . . ." MCL 600.2169(1)(b)( i ).

Defendants moved for summary disposition under MCR 2.116(C)(10), asserting that the affidavits filed by plaintiff's counsel did not satisfy MCL 600.2912d because the affiants did not meet the requirements of MCL 600.2169(1)(a) and (b), respectively, and that plaintiff's counsel could not have had a reasonable belief that they did. BCC asserted that plaintiff's affidavit of merit alleging nursing malpractice should have been signed by a licensed practical nurse (LPN) and that plaintiff's counsel could not have reasonably believed that a registered nurse (RN) could offer standard of care testimony. Both BCC and Dr. Selznick asserted that plaintiff's affidavit of merit alleging physician malpractice should have been signed by a family practitioner and that plaintiff's counsel could not have had a reasonable belief that Dr. Compton had the proper qualifications.

[310 Mich.App. 199] The trial court ruled that the affiants did not satisfy the requirements of MCL 600.2169(1) and, on this basis, dismissed the case. The court did not, however, address plaintiff's argument that her counsel had a reasonable belief that the affiants met the testimonial requirements.[2] Plaintiff appeals from that ruling and BCC cross-appeals on the grounds that the dismissal should have been with prejudice.[3]

II. STANDARD OF REVIEW

A trial court's ruling on a motion for summary disposition presents a question of law reviewed de novo. Titan Ins Co v Hyten, 491 Mich. 547, 553; 817 N.W.2d 562 (2012). Questions of statutory interpretation are also reviewed de novo including the statutory requirements for affidavits of merit. Lucas v Awaad, 299 Mich.App. 345, 377; 830 N.W.2d 141 (2013). " Our goal when interpreting and applying statutes or court rules is to give effect to the plain meaning of the text." Ligons v Crittenton Hosp, 490 Mich. 61, 70; 803 N.W.2d 271 (2011).

III. ANALYSIS

Whether an expert may provide standard of care testimony at trial is governed by MCL 600.2169. However, whether an affidavit of merit signed by an expert [310 Mich.App. 200] is adequate is governed by MCL 600.2912d. This provision requires that plaintiff's counsel " reasonably believes" that the affiant " meets the requirements" of MCL 600.2169, not that the affiant actually

Page 19

meet those requirements for purposes of trial testimony. " The Legislature's rationale for this disparity is, without doubt, traceable to the fact that until a civil action is underway, no discovery is available. See MCR 2.302(A)(1)." Grossman v Brown, 470 Mich. 593, 599; 685 N.W.2d 198 (2004).

Both this Court and the Supreme Court have been careful to distinguish these standards and to recognize that " at trial the standard is more demanding because the statute states that a witness ' shall not give expert testimony' unless the expert 'meets the [listed] criteria' in MCL 600.2169(1)." Id. (emphasis added; alteration in original). By contrast, the issue for purposes of MCL 600.2912d is not whether the expert signing the affidavit of merit may ultimately testify at trial. The controlling question under MCL 600.2912d is whether plaintiff's counsel had a reasonable belief that the affiant would qualify. The fact that the Legislature used the " reasonably believes" language demonstrates that there will be cases in which counsel had such a reasonable belief even though the expert is ultimately shown not to meet the criteria of MCL 600.2169(1).

In Brown v Hayes, 477 Mich. 966; 724 N.W.2d 470 (2006), the Supreme Court reiterated this point. It concluded that even when the expert in question did not qualify to testify under MCL 600.2169, the affidavit should not be stricken when counsel had a reasonable belief that the expert did qualify. Id. Indeed, in Hayes, the attorney had not made an error of fact (as in Grossman ), but had incorrectly, but reasonably, construed the statutory requirements. Id.

[310 Mich.App. 201] This Court has similarly noted the differing tests for whether an expert may testify at trial on the standard of care and for whether a health professional may sign an affidavit of merit. In McElhaney v Harper-Hutzel Hosp, 269 Mich.App. 488, 497-498; 711 N.W.2d 795 (2006), we held that the plaintiff's experts did not qualify, under MCL 600.2169, to testify regarding the standard of care. However, regarding the propriety of the affidavit of merit signed by one of those experts as to alleged malpractice by a nurse midwife, we concluded that " plaintiff's attorney's belief that an obstetrician/gynecologist met the requirements for an expert witness under § 2169 was reasonable." Id. at 495-496. Therefore, the issue is not whether the attorney's judgment proves to be incorrect, but rather whether the attorney's belief, though erroneous in hindsight, was reasonable at the time.

In light of these principles, we now review the trial court's conclusion that the affidavits of merit filed with plaintiff's complaint did not comply with MCL 600.2912d. We will address separately the nursing affidavit of merit and the physician affidavit of merit. Plaintiff's claims against BCC are based on the actions of two separate agents, i.e., the relevant nurse(s) and its staff physician, Dr. Selznick. Plaintiff's claims against Dr. Selznick and his practice are based solely on his individual actions.

A. NURSING MALPRACTICE

Regarding the claims of nursing malpractice, we conclude that the trial court erred because it was not unreasonable for plaintiff's counsel to obtain an affidavit of merit from an RN.

BCC's argument that the case must be dismissed rests first and foremost on its assertions that the [310 Mich.App. 202] caregiver who reinserted the PEG tube was an LPN and that this information was available in the medical records. However, defendant has offered no evidence that this assertion is true. Indeed, a review of the medical records makes clear that the relevant caregiver

Page 20

is not identified as an LPN nor by name.

The sole basis for BCC's assertion is a single page of handwritten nursing notes dated November 15, 2007, much of which is illegible. There is a note timed at 12:00 a.m. that appears to have been signed by an LPN, albeit with an illegible signature. BCC claims in its brief that this nurse reinserted the PEG tube. However, this assertion is simply not supported by the nursing notes, insofar as they can be deciphered, or by any other proofs or affidavits. Significantly, the 12:00 a.m. note does not say that the nurse on duty then reinserted the tube. Rather, reinsertion of the PEG tube is first referred to in a nursing note written eight hours later, at 8:00 a.m., in which a different author writes, " peg tube replaced[.]" The 8:00 a.m. note is signed, but the signature is illegible and the 8:00 a.m. note does not indicate whether the person making the entry was an LPN or RN. It is also readily apparent upon observation of the 8:00 a.m. note that it was not written by the same individual who wrote the 12:00 a.m. note.[4]

Even if we were to accept as true BCC's unsupported assertion regarding the identity of the relevant caregiver, a proposition wholly inconsistent with our standard [310 Mich.App. 203] of review, it would not alter the outcome of this appeal because plaintiff's attorney had a reasonable belief that the affiant could testify.

First, given the limited evidence available at the time the affidavit of merit was filed, it would have been reasonable for plaintiff's counsel to have concluded that the relevant nurse was an RN. As stated by our Supreme Court in Grossman, 470 Mich. at 599-601, when determining the reasonableness of an attorney's belief at the affidavit of merit stage, we look to the resources available to that attorney at the time the affidavit was prepared. As just noted, the medical records did not provide the relevant information. Moreover, BCC never complied with its statutory duty to respond to plaintiff's notice of intent to file a claim with a written statement providing " [t]he factual basis for the defense to the claim" in which it presumably would have identified the caregiver who reinserted the PEG tube and his or her qualifications. MCL 600.2912b(7)(a). Indeed, the reasonableness of the belief that an RN could properly sign the affidavit of merit in this case is demonstrated by the fact that BCC's affidavit of meritorious defense was signed by an RN, not an LPN. Given that BCC's attorneys, who (unlike plaintiff's counsel) had full access to hospital staffing records and the relevant caregivers, concluded that an RN was the proper affiant, it would certainly seem that the same judgment, when made earlier by plaintiff's counsel with far less information, was a reasonable one.

Second, we find reasonable plaintiff's counsel's legal conclusion that an RN may offer standard of care testimony against an LPN. Whether an RN may ultimately offer such testimony at trial is not before us and we do not decide that issue, but plaintiff's counsel's conclusion that an RN was a proper affiant, even if the [310 Mich.App. 204] relevant actor was an LPN, would not have been unreasonable

Page 21

given the fact that the issue has not been definitively addressed and there is law that supports his conclusion.

Indeed, the statutory definitions of LPN and RN support this conclusion, as does the relevant caselaw. Both RNs and LPNs are licensed in the " practice of nursing." MCL 333.17201(1)(a), which defines this practice, provides:

" Practice of nursing" means the systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury or disability.

The same section goes on to define the practice of nursing as an LPN and as an RN:

(b) " Practice of nursing as a licensed practical nurse" or " l.p.n." means that practice of nursing based on less comprehensive knowledge and skill than that required of a registered professional nurse and performed under the supervision of a registered professional nurse, physician or dentist.
(c) " Registered professional nurse" or " r.n." means an individual licensed under this article to engage in the practice of nursing which scope of practice includes the teaching, direction, and supervision of less skilled personnel in the performance of delegated nursing activities. [MCL 333.17201(1).]

Consistently with these definitions, MCL 333.17208 provides that " [t]he practice of nursing as a licensed practical nurse is a health profession subfield of the practice of nursing."

[310 Mich.App. 205] These statutory definitions make clear that any work that may be performed by LPNs may also be performed by RNs. Indeed, RNs can direct and supervise LPNs in the performance of their duties. Each is wholly engaged in the " practice of nursing" and neither has any specialty training.[5] The only difference is the extent of their general training and authority. The situation appears analogous to that of a physician specialist as to a resident physician in specialty training. In Bahr v Harper-Grace Hosps, 448 Mich. 135; 528 N.W.2d 170 (1995), the Supreme Court held that a physician who is a fully qualified specialist may testify regarding the standard of care applicable to a resident physician training in that specialty. See also Gonzalez v St John Hosp & Med Center (On Reconsideration), 275 Mich.App. 290; 739 N.W.2d 392 (2007).

In sum, we conclude that the trial court erred by dismissing the claims against BCC that are based on allegations of nursing malpractice. We reach this conclusion for each of the following reasons: (a) there is a question of fact whether the nurse in question was an LPN or an RN; (b) given BCC's failure to respond to the notice of intent and identify whether the nurse in question was an LPN or RN, that information was not reasonably available to plaintiff's counsel when the complaint and affidavits of merit were filed, and; (c) it would have been reasonable for plaintiff's counsel to conclude that an RN could offer testimony regarding the standard of care for an LPN.

B. PHYSICIAN MALPRACTICE

The claims of physician malpractice apply directly to Dr. Selznick, and to his practice and BCC through agency.

Page 22

[310 Mich.App. 206] As discussed earlier, the question before us is not whether Dr. Compton may offer standard of care testimony at trial. The sole question is whether at the time he prepared the affidavit of merit, plaintiff's counsel reasonably believed that Dr. Compton met the requirements of MCL 600.2169(1)(a). Similar to our conclusions with regard to the nursing issue, we conclude that counsel's belief was reasonable and we find that there were both factual and legal grounds for that belief.

Factually, plaintiff's expert affiant attested that at the relevant time, he was a specialist in two areas of medicine, one of which was geriatric medicine, and that more than 50% of his practice was in that specialty. Plaintiff's counsel believed that at the relevant time, Dr. Selznick was also a specialist in geriatric medicine. Dr. Selznick now asserts that his only specialty is in family medicine and that he is not a specialist in geriatric medicine. We conclude, however, that plaintiff's counsel's conclusion that Selznick was a geriatric specialist was a reasonable one, at least at the presuit stage.

First, Dr. Selznick's professional biography on his own website affirmatively states that he is " Board Certified in . . . Geriatrics." We find it difficult to accept that a doctor may publicly advertise himself as having a particular specialty and then claim that no one could have reasonably believed that his assertion was true.

Second, given that plaintiff was an elderly man in a nursing home, it would be reasonable for plaintiff's counsel to have concluded that the one most relevant specialty was geriatric medicine. Indeed, Dr. Selznick was the medical director of the nursing home, a position which one would reasonably conclude could not be obtained by physicians who do not specialize in geriatric medicine.

[310 Mich.App. 207] Third, plaintiff's notice of intent made absolutely clear that plaintiff's counsel believed that Dr. Selznick was a specialist in geriatric medicine and that geriatric medicine was the specialty that he was practicing at the time in question. The notice further asserted that the relevant standard of care was the one applicable to geriatric medicine specialists. Upon receipt of the notice of intent, Dr. Selznick had a statutory duty to respond with " a written response that contains a statement of" (a) the factual basis for the defense to the claim, and (b) the standard of practice or care that he claimed applied to the action. MCL 600.2912b(7). Had Dr. Selznick complied with this mandate and had he actually asserted what he now claims, i.e., that he is not a geriatric medicine specialist, plaintiff's counsel would have filed an affidavit from a physician whose specialty qualifications matched those claimed by Dr. Selznick. Failure to have provided the mandatory response, while not an active assertion of agreement with plaintiff's understanding of the relevant expertise and, therefore, not a formal admission, surely provides an additional reason (along with Dr. Selznick's website claims and his position as medical director of a geriatric nursing home) for plaintiff's counsel to have reasonably concluded that Dr. Selznick is a specialist in geriatric medicine.[6]

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[310 Mich.App. 208] Dr. Selznick does not dispute that he has special training and experience in geriatric medicine. He also does not dispute that he has a certificate of added qualification in geriatric medicine. Nevertheless, he asserts that this is not the equivalent of a board certification. Indeed, he appears to assert that there is no such thing as a specialty in geriatric medicine and that any conclusion that there is such a specialty is unreasonable. We disagree.

In the decade following the passage of 1993 PA 78, many issues arose concerning the exact nature of the requirements it adopted in medical malpractice cases. Many of these difficulties arose from questions about expert qualifications, particularly the issue of " matching" specialties. Most of these issues were resolved by our Supreme Court in Woodard v Custer, 476 Mich. 545; 719 N.W.2d 842 (2006). However, some issues escaped conclusive treatment in Woodard. One of these remaining issues is what constitutes an expert " match" when a physician has a board certification, but also carries a certificate of added qualification. This is particularly true when, at the time of the occurrence that is the basis of the medical malpractice action, the physician was practicing in the specialty defined by the certificate of added qualification.

Defendants rely on Halloran v Bhan, 470 Mich. 572, 575-580; 683 N.W.2d 129 (2004), in which Supreme Court held that the plaintiff's medical expert should not be permitted to testify at trial[7] because, as a board-certified specialist in anesthesiology, he did not [310 Mich.App. 209] " match" the qualifications of the defendant, who was a board-certified specialist in internal medicine, even though they each possessed certificates of additional qualification in critical care. However, Halloran was decided two years before Woodard and the decision was circumscribed by the fact that all parties to the case agreed that a certificate of added qualification did not constitute a board certification. Thus, in Halloran, the legal import of a certificate of added qualification was not an issue in dispute. See id. at 575 (" The parties do not dispute that the subspecialty certification [of added qualification] is not 'board certification' for the purpose of [MCL 600.2169]." ). The plaintiff argued that his expert, who by the parties' agreement was only board certified in anesthesiology, should be permitted to testify against an internal medicine specialist simply because the case arose in a hospital's critical care unit and the parties shared a " subspecialty" by virtue of their matching certificates of added qualifications. Id. at 575-576. All three Court of Appeals judges concluded as a matter of law that " critical care medicine" cannot be considered a specialty because, as the parties agreed, there is no board certification available in it.[8] Halloran v Bhan, unpublished opinion per curiam of the Court of Appeals, issued March 8, 2002 (Docket No. 224548, Hoekstra, J., dissenting), unpublished op at 1-2. The majority concluded that

Page 24

" [b]ecause there is no board certification for critical care medicine, the last sentence of § 600.2169(1)(a) does not apply to the present case." Id. (opinion of the Court) at 4. The majority therefore held that the requirement for specialized expert testimony did not apply at all. The [310 Mich.App. 210] dissent agreed that critical care medicine is a not a specialty, but concluded that the defendant's internal medicine board certification meant that witnesses for or against him had to be board certified in internal medicine. Id. (HOEKSTRA, J., dissenting), unpublished op at 1. The Supreme Court essentially adopted the analysis of the dissenting Court of Appeals judge, noting that " [t]he parties do not dispute that the subspecialty certification is not 'board certification' for the purpose of the statute." Halloran, 470 Mich. at 575. Accordingly, Halloran concluded that defendant's only specialty was internal medicine and that the plaintiff's expert, whose only specialty was anesthesiology, could not testify at trial regarding the standard of care.

Had Halloran been the last word on the question, we would agree with defendants that plaintiff's counsel could not have concluded that geriatric medicine is a specialty and that both defendants' and plaintiff's affiants are board-certified specialists in that field. However, Halloran was not the last word. In 2006, the Supreme Court decided Woodard along with its companion case, Hamilton v Kuligowski.

Woodard substantially changed the landscape in terms of what constitutes a specialty for purposes of MCL 600.2169(1)(a) and the way in which certificates of added qualification are to be construed.

First, Woodard held that " a certificate of special qualifications . . . constitutes a board certificate." Woodard, 476 Mich. at 565. Thus, contrary to the parties' agreement in Halloran, a certificate of special or added qualification constitutes a " board certification."

Second, Woodard held that " a 'specialist' is somebody who can potentially become board certified. . . . Accordingly, if the defendant physician practices a [310 Mich.App. 211] particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff's expert must practice or teach the same particular branch of medicine or surgery." Id. at 561-562. Therefore, if a defendant has the training and experience necessary to qualify for a certificate of special qualification, the defendant is a specialist in that field. Putting it more directly, the Court held that " [a] subspecialty, although a more particularized specialty, is nevertheless a specialty." Id. at 562.

Third, Woodard held that when a defendant has multiple specialties, a testifying expert must only " match the one most relevant standard of practice or care--the specialty engaged in by the defendant physician during the course of the alleged malpractice, and, if the defendant physician is board certified in that specialty, the plaintiff's expert must also be board certified in that specialty." Id. at 560.

To put it in the form of a syllogism, Woodard tells us that:

(a) A certificate of special qualification is a board certification.

(b) Therefore, a certificate of special qualification in geriatric medicine is a board certification in geriatric medicine.

(c) Because board certification in geriatric medicine is available to physicians with the necessary training and experience, geriatric medicine is a specialty.

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(d) If Dr. Selznick, who is board certified in both family medicine and geriatric medicine, was practicing geriatric medicine at the time this case arose, then the " one most relevant specialty" is geriatric medicine and it is that one specialty that plaintiff's expert must match.

[310 Mich.App. 212] (e) Both Dr. Selznick and plaintiff's expert affiant are board certified in the one most relevant specialty, i.e., geriatric medicine.

Having laid out this reasoning, we still decline to reach the question whether Dr. Compton may testify at trial regarding standard of care. Halloran has not been explicitly overruled and we leave it to the Supreme Court to determine whether and to what extent Woodard did so.[9]

Moreover, Woodard presents a somewhat different factual situation from that in the present case. In that case, the Court concluded that a physician who is board certified in pediatrics may not testify regarding a physician who is board certified in pediatrics and also has a certificate of added qualification in pediatric critical care when the action arises in the context of care in a pediatric special care unit. Id. at 575-577. In the companion case, Hamilton, the Court held that an expert who was board certified in internal medicine and had a certificate of special qualifications in infectious disease (and spent more than 50% of his time treating infectious diseases) could not testify against a physician who was also board certified in internal medicine when the action arose in the context of " ordinary" internal medicine. Id. at 577-578. Neither of those cases involved the precise circumstances we are presented with here--where both doctors are board certified in geriatrics and the relevant area of practice is geriatrics, but their geriatric certifications were issued by different boards.[10]

[310 Mich.App. 213] We conclude that plaintiff's affidavit of merit regarding Dr. Selznick satisfied MCL 600.2912d. Our holding is limited, however, to that statute and the sufficiency of the affidavit of merit. We do not reach the question whether this expert may ultimately offer standard of care testimony at trial under MCL 600.2169 and respectfully suggest that the Supreme Court address this broader and more significant issue in an appropriate case.

For the same reason, we also deny BCC's motion to dismiss the claims against it based on allegations of physician malpractice. Indeed, the outcome is even more clear with regard to BCC, given that BCC's relevant affidavit of meritorious defense was signed by a physician who possessed only an internal medicine board

Page 26

certification, and no certification in either geriatric or family medicine. While plaintiff cannot have relied on this subsequently filed affidavit, the fact that BCC's counsel, who had access to greater information, concluded that a family medicine specialist was not required suggests that plaintiff's counsel's belief that Dr. Compton was a qualified affiant was reasonable.

IV. CONCLUSION

For the reasons discussed herein, the affidavits of merit filed by plaintiff's counsel complied with MCL 600.2912d. Accordingly, we reverse and remand for [310 Mich.App. 214] further proceedings consistent with this opinion. We do not retain jurisdiction.

CONCUR

Pat M. Donofrio (In Part)

DISSENT

Donofrio, P.J. ( concurring in part and dissenting in part ).

I concur with the result reached by the majority with respect to the reversal of the grant of summary disposition on plaintiff's nursing malpractice claim. But because plaintiff's attorney could not have held a reasonable belief that his expert matched the necessary qualifications to render testimony on the standard of care with respect to defendant Dr. Thomas Selznick, I would affirm the grant of summary disposition on the physician malpractice claims.

This Court reviews a trial court's decision on a motion for summary disposition de novo. Allen v Bloomfield Hills Sch Dist, 281 Mich.App. 49, 52; 760 N.W.2d 811 (2008). A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Weisman v U S Blades, Inc, 217 Mich.App. 565, 566; 552 N.W.2d 484 (1996). When deciding a motion for summary disposition under this subrule, a court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence then filed in the action or submitted by the parties in a light most favorable to the nonmoving party. MCR 2.116(G)(5); Wilson v Alpena Co Rd Comm, 474 Mich. 161, 166; 713 N.W.2d 717 (2006). The motion is properly granted if the evidence fails to establish a genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. Michalski v Bar-Levav, 463 Mich. 723, 730; 625 N.W.2d 754 (2001).

Additionally, questions of statutory interpretation and court rule interpretation also are reviewed de novo. Ligons v Crittenton Hosp, 490 Mich. 61, 70; 803 N.W.2d [310 Mich.App. 215] 271 (2011). Further, whether a plaintiff's affidavit of merit complied with the requirements of MCL 600.2912d is reviewed de novo as a question of law. Lucas v Awaad, 299 Mich.App. 345, 377; 830 N.W.2d 141 (2013).

I. NURSING MALPRACTICE CLAIM

I concur with the majority that the trial court erred by granting summary disposition with respect to the nursing malpractice claim. But because this issue can be decided solely on the basis of defendant Botsford Continuing Care (BCC) not supporting its motion for summary disposition with documentary evidence, I do not join in the majority's discussion related to whether plaintiff's counsel held a reasonable belief that a registered nurse can provide testimony on the standard of care for a licensed practical nurse.

When moving for summary disposition under MCR 2.116(C)(10), " '[t]he moving party must support its position with affidavits, depositions, admissions, or other documentary evidence.'" Karaus v Bank of New York Mellon, 300 Mich.App. 9, 17; 831 N.W.2d 897 (2012), quoting St Clair Med, PC v Borgiel, 270 Mich.App. 260, 264; 715 N.W.2d 914 (2006). As described by

Page 27

the majority, BCC's sole piece of evidence on who reinserted the PEG tube was a largely indecipherable nursing log. The " LPN" notation in the nursing notes, which BCC relies on, was not written where the log states that the PEG tube was replaced. And the signature after the " peg tube replaced" notation, in fact, did not have an " LPN" notation.[1] Looking at these notes in a light most favorable to the nonmoving [310 Mich.App. 216] party, Wilson, 474 Mich. at 166, there is a question of fact regarding whether an RN or an LPN reinserted the PEG tube, and summary disposition was not appropriate.

Moreover, with the sheer lack of information available to plaintiff's counsel when the affidavit was prepared, one cannot conclude that counsel acted unreasonably in thinking that an RN was the one who replaced the PEG tube. This is true especially when considering that the person who signed the notation, " peg tube replaced," was not the same person who signed earlier with the " LPN" designation.

Consequently, the trial court erred by granting BCC's motion to dismiss this claim. Because the issue is resolved on the two bases I describe, I do not join the discussion that the majority engages in related to whether plaintiff's attorney's legal conclusion that an RN may offer testimony on the standard of care for an LPN was reasonable. See Dessart v Burak, 252 Mich.App. 490, 496 n 5; 652 N.W.2d 669 (2002) (stating that obiter dictum is a judicial comment that is not necessary to the decision and is not precedential).

II. PHYSICIAN MALPRACTICE CLAIMS

Because I do not believe that plaintiff's attorney's belief was reasonable with respect to Dr. Gregory A. Compton possessing the relevant board certifications, I respectfully disagree with the majority's holding regarding the sufficiency of that affidavit. Accordingly, I would affirm the trial court's grant of summary disposition on the physician malpractice claims.

" MCL 600.2912d(1) provides that the plaintiff in a medical malpractice action must file with the complaint 'an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes [310 Mich.App. 217] meets the requirements of an expert witness under [MCL 600.2169.'" Lucas, 299 Mich.App. at 377 (alteration in original). MCL 600.2169(1), in turn, provides the following:

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.

Our Supreme Court's holdings in Halloran v Bhan, 470 Mich. 572; 683 N.W.2d 129 (2004), and Woodard v Custer, 476 Mich. 545; 719 N.W.2d 842 (2006), require an expert witness testifying regarding the standard of care to possess the same one

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relevant specialty as possessed by the defendant. In Halloran, the facts were very similar to the facts in the present case. In Halloran, the question was whether a physician who was board certified in anesthesiology and had a certificate of added qualification in critical care medicine could testify against the defendant, who was board certified in internal medicine and had a certificate of added qualification in critical care medicine. Hence, at first blush, as in our case, the two physicians in Halloran shared subspecialties but not specialties.[2] The Supreme Court held that the proposed witness [310 Mich.App. 218] could not testify regarding the standard of care. Halloran, 470 Mich. at 578-579. The Court reasoned that because the physicians did not share the same board certification, the expert could not testify at trial with respect to the standard of care. Id. at 579.

Two years later, the Supreme Court decided Woodard. In Woodard, the Supreme Court held that the plaintiff's proposed witness, who was board certified in pediatrics, could not testify on the standard of care against the defendant, who was board certified in pediatrics but also possessed a certificate of special qualification in pediatric critical care medicine. Woodard, 476 Mich. at 554, 577. The Court explained that " a subspecialty is a specialty within the meaning of § 2169(1)(a)." Id. at 566 n 12. This is the first time this legal conclusion was enunciated because in Halloran, 470 Mich. at 575, the Court apparently accepted the parties' position that a subspecialty certification did not qualify as a " board certification" under the statute. Therefore, contrary to Halloran, " if a defendant physician has received a certificate of special qualifications, the plaintiff's expert witness must have obtained the same certificate of special qualifications in order to be qualified to testify under § 2169(1)(a)." Woodard, 476 Mich. at 565 (emphasis added).

By ruling that Dr. Compton and Dr. Selznick were both " board certified in the one most relevant specialty, i.e., geriatric medicine," the majority is making an error. Dr. Compton was board certified in internal medicine and possessed a certificate of added qualification in geriatrics. Dr. Selznick was board certified in family medicine and had a certificate of added qualification in geriatrics. But just because their board certifications in their subspecialties shared the common word " geriatrics," [310 Mich.App. 219] it does not mean that those certifications are equivalent.[3]

As the Supreme Court in Woodard explained, " [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. A subspecialty, although a more particularized specialty, is nevertheless a specialty." Id. at 562 (emphasis added). Thus, because subspecialties " fall[] under" a particular

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specialty or are " within the hierarchy" of a particular specialty, it is clear that subspecialties cannot be divorced from their parent specialties. In other words, it is technically inaccurate to simply state that a doctor possesses a subspecialty board certification in " geriatrics." Instead, that doctor possesses a subspecialty board certification in " geriatrics in the field of family medicine." Hence, Dr. Compton's board certification of " geriatrics in the field of internal medicine" is not the same as Dr. Selznick's board certification of " geriatrics in the field of family medicine." [4] As a result, under [310 Mich.App. 220] MCL 600.2169(1)(a), Dr. Compton was not qualified to testify to the standard of care at trial against Dr. Selznick. See id. at 565.

However, that is not the end of the analysis because MCL 600.2912d(1) only requires that a plaintiff's attorney " reasonably believes" that an expert who writes an affidavit of merit meets the requirements for an expert witness. Grossman v Brown, 470 Mich. 593, 598-599; 685 N.W.2d 198 (2004). This is a lesser standard than is required to have that expert testify at trial. Id. at 599. In determining the reasonableness of plaintiff's attorney's belief, a court must look to the resources available to the attorney at the time the affidavit of merit was prepared. See id. at 599-600.

In his response to defendant's motion for summary disposition, plaintiff's counsel argued that his belief was reasonable based on a review of Dr. Selznick's employer's website. As the majority notes, the preamble or introductory text on the web page states in general terms that Dr. Selznick was " Board Certified in Family Practice, Geriatrics and Medical Directorship of Long Term Care Facilities." However, lower on that same web page, it provides a heading in bold type, called " Board Certifications," and under that heading is a list of the specific board certifications Dr. Selznick possessed and the years he acquired them. Relevant to this discussion, it lists " AOBFP: 1991" and " AOBFP -- CAQ Geriatrics: 1992." Thus, while the general text on the web page did not make it clear that the geriatrics certification was actually a subspecialty of family medicine, the " CAQ" notation, which stands for " certificate [310 Mich.App. 221] of added qualification," makes clear that this certification was in relation to a narrower subspecialty.[5] Woodard, 476 Mich. at 562. Therefore, with AOBFP standing for the American Osteopathic Board of Family Physicians, it is clear that Dr. Selznick's board certification was in family medicine and that he also possessed a certification in the subspecialty of geriatrics in the field of family medicine. Accordingly, I would conclude that, looking at the website as a whole, it is apparent that plaintiff's attorney needed an expert who

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was board certified in geriatrics in the field of family medicine. As a result, I do not believe that plaintiff's counsel held a reasonable belief that Dr. Compton, who was known to be board certified in geriatrics in the field of internal medicine, matched Dr. Selznick's relevant board certification of geriatrics in the field of family medicine. Therefore, although the trial court never addressed the " reasonably believes" aspect of this issue, I would conclude that the trial court's ruling was correct, albeit with an incomplete analysis. See Gleason v Dep't of Transp, 256 Mich.App. 1, 3; 662 N.W.2d 822 (2003) (" A trial court's ruling may be upheld on appeal where the right result issued, albeit for the wrong reason." ).

To the extent that plaintiff and the majority rely on the fact that defendants similarly provided the wrong expert when they later supplied their affidavit of meritorious defense, this fact is irrelevant. Defense counsel's later unreasonableness cannot transform plaintiff's counsel's prior unreasonableness into being reasonable. In more familiar terms, " Two wrongs do not make a right." And more importantly, plaintiff's counsel did not have access to defendants' affidavit of [310 Mich.App. 222] meritorious defense at the time the affidavit of merit was filed, so any reliance on that later-issued affidavit is misplaced. See Grossman, 470 Mich. at 599-600.[6]

III. AMENDMENT OF AFFIDAVITS

Plaintiff also contends that, even if any affidavit of merit were defective, she should be allowed to " amend" it by submitting a new one signed by the appropriately credentialed professional. The majority did not need to address this issue because it was moot given their resolution of the case. However, because I would conclude that Dr. Compton's affidavit of merit was deficient, I will briefly address the issue.

MCR 2.112(L)(2)(b) provides that " [a]n affidavit of merit . . . may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301." MCR 2.118(A)(2) provides that " a party may amend a pleading only by leave of the court or by written consent of the adverse party." (Emphasis added.) While an affidavit of merit is not a " pleading" under MCR 2.110(A), MCR 2.112(L)(2)(b), taken together with MCR 2.118(D) allows an affidavit of merit to be amended, and that amendment relates back to the date of the original filing of the affidavit.

[310 Mich.App. 223] Plaintiff alleges that the trial court erred by failing to even address this issue. However, any failure by the trial court to address amendment was reasonable because it appears that plaintiff never took the trial court up on its offer to pursue that remedy. A review of the lower court record reveals no motion by plaintiff to amend the affidavit. At best, in her response to defendants' motions for summary disposition, plaintiff cited the law that allows affidavits of merit to be amended, but she never actually moved the trial

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court to permit amendment. At the hearing on defendants' motions for summary disposition, the following exchange illustrates how the trial court allowed plaintiff to take any further action she deemed prudent:

The Court : Okay. So the Court is going to grant defendant's motion for Summary Disposition pursuant to [MCR 2.116(C)(10)] as to all claims against Defendant Selznick, Livonia Family Physicians, and Botsford Continuing Care Corporation.
The affidavit of merit was signed by a doctor who does not have the same general board certification as Doctor Selznick, which is contrary to statute. The affidavit of merit regarding the licensed practical nurse was signed by a registered nurse and is also inappropriate. Therefore, based upon the defective affidavits of merit, the motion is granted.
I'm gonna decline to accept [defendants'] oral amendment to include [MCR 2.116(C)(7)] on this matter, so I'm not gonna grant you a final judgment.[7] [ Plaintiff's counsel] says he has further plans and I'm gonna allow him to pursue those.
* * *
[310 Mich.App. 224] [ Plaintiff's Counsel ]: So, I mean, do we -- can we still amend then, do we still --
The Court : You're the lawyer.
[ Plaintiff's Counsel ]: Okay.
The Court : Okay.
[ Plaintiff's Counsel ]: All right.
The Court : You know. I'm not gonna tell you what you should or shouldn't do and I don't know the merits of what you have planned, but I've left it open for you to do so. [Emphasis added.]

Even after the trial court left the door " open" for plaintiff to take further action, no motion to amend was ever filed with the court. All the record shows is that plaintiff moved for reconsideration and after that motion was denied, she eventually filed a new complaint (presumably with the proper affidavits attached). With the trial court never precluding plaintiff from seeking to amend the affidavits in the original action, I perceive no error for this Court to correct.

Moreover, I openly question whether plaintiff's current desire to substitute the prior affidavits of merit with entirely new ones signed by different affiants qualifies as amending the prior affidavits. " Amendment" is defined in relevant part as " a change made by correction, addition, or deletion." Random House Webster's College Dictionary (2001). Here, there are no " changes" being made to the prior affidavits, let alone any " corrections," " additions," or " deletions." Instead, plaintiff's goal is to entirely replace the prior affidavits with new ones signed by new affiants. On the other hand, if an " amended" affidavit was signed by the same affiant with only changes to what the affiant was averring, then it would properly be considered an " amendment." Therefore, even if plaintiff had moved to [310 Mich.App. 225] amend, I do not believe that this type of wholesale substitution would qualify as an " amendment" under the applicable court rules.

IV. CONCLUSION

Accordingly, I agree that the trial court erred by dismissing the nursing malpractice claim, but I would affirm the trial

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court's dismissal related to the physician malpractice claim because plaintiff's attorney did not possess a reasonable belief that Dr. Compton met the requirements for an expert witness, rendering detective the affidavit of merit related to physician malpractice.


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