LEANA M. COX, formerly known as LEANA M. TARAVELLA, Individually and as Next Friend of ANGELINA A. COX, a Minor, Plaintiff-Appellant,
ERIC J. HARTMAN, M.D., and BLUE WATER OBSTETRICS AND GYNECOLOGY PROFESSIONAL CORPORATION, doing business as BLUEWATER OB GYN, PC, Defendants, and TRACEY McGREGOR, R.N., and PORT HURON HOSPITAL, Defendants-Appellees.
Clair Circuit Court LC No. 2014-002074-NH
Before: Jansen, P.J., and Cavanagh and Cameron, JJ.
consolidated appeals arise from the same medical malpractice
case. In Docket No. 333849, plaintiff, Leana M. Cox, formerly
known as Leana M. Taravella (plaintiff), individually and as
next friend of Angelina A. Cox (Angelina), a minor, appeals
by leave granted a June 6, 2016 opinion and order granting
summary disposition in favor of defendants Tracey McGregor,
R.N., and Port Huron Hospital pursuant to MCR 2.116(C)(10).
In Docket No. 333994, plaintiff appeals by leave
granted a July 6, 2016 order denying
plaintiff's motion for leave to name a new nursing expert
and to file an amended affidavit of merit. The appeals were
consolidated. Cox v Hartman, unpublished order of
the Court of Appeals, entered January 20, 2017 (Docket No.
333849); Cox v Hartman, unpublished order of the
Court of Appeals, entered January 20, 2017 (Docket No.
333994). We affirm in both appeals.
case arises out of alleged malpractice on the part of
defendant Eric J. Hartman, M.D., and McGregor, a registered
nurse, related to the birth of plaintiff's daughter,
Angelina, on April 26, 2010, at Port Huron Hospital. Dr.
Hartman delivered Angelina, and McGregor assisted in the
delivery. Dr. Hartman was an owner and employee of defendant
Blue Water Obstetrics and Gynecology Professional
Corporation, doing business as Blue Water OB GYN, PC (Blue
Water). McGregor was an employee of Port Huron Hospital.
Plaintiff filed this medical malpractice action alleging
negligence on the part of Dr. Hartman and vicarious liability
of Blue Water for Dr. Hartman's negligence. Plaintiff
also asserted a claim of professional negligence against
McGregor. Plaintiff alleged that Port Huron Hospital was
vicariously liable for the negligence of
discovery, McGregor and Port Huron Hospital (hereinafter
referred to collectively as defendants, given that Dr.
Hartman and Blue Water are not involved in these appeals)
filed a motion for summary disposition pursuant to MCR
2.116(C)(10). As relevant to these appeals, defendants argued
that plaintiff's proposed nursing expert, Claudia A.
Beckmann, was not qualified to offer standard of care
testimony against McGregor pursuant to MCL 600.2169(1), and
that defendants were thus entitled to summary disposition
with respect to plaintiff's nursing malpractice claim.
Defendants argued that, during the year immediately preceding
the alleged malpractice, Beckmann did not devote the majority
of her professional time to the active clinical practice or
teaching of labor and delivery nursing, or even nursing more
generally. Instead, Beckmann devoted the majority of her
professional time to instructing students in a nurse
practitioner graduate program at Rutgers University. In
response to defendants' motion, plaintiff contended that
Beckmann was qualified to testify as an expert witness on the
standard of care for a registered nurse. Plaintiff argued
that Beckmann devoted the majority of her professional time
in the year preceding the alleged malpractice to instructing
students in the nursing profession. In particular, plaintiff
suggested that, by teaching nurse practitioner students,
Beckmann was providing instruction in the same profession in
which McGregor was licensed. The trial court ultimately
agreed with defendants' argument and granted summary
disposition to defendants on the nursing malpractice claim.
Plaintiff then moved for leave to name a new nursing expert
and to amend the affidavit of merit regarding the nursing
malpractice claim; the trial court denied plaintiff's
motion. These appeals followed.
argues on appeal that the trial court erred in determining
that Beckmann was unqualified to testify as an expert witness
concerning the standard of care applicable to McGregor and
that the court erred in granting summary disposition to
defendants. We disagree.
court's ruling regarding the qualification of a proposed
expert witness to testify is reviewed for an abuse of
discretion. Woodard v Custer, 476 Mich. 545, 557;
719 N.W.2d 842 (2006). An abuse of discretion occurs when the
trial court's decision falls outside the range of
principled outcomes. Id. This Court reviews de novo
issues of statutory interpretation. Sturgis Bank &
Trust Co v Hillsdale Community Health Ctr, 268 Mich.App.
484, 489; 708 N.W.2d 453 (2005).
The primary goal of judicial interpretation of statutes is to
ascertain and give effect to the intent of the Legislature.
The first step is to examine the plain language of the
statute itself. The Legislature is presumed to have intended
the meaning it plainly expressed. If the statutory language
is clear and unambiguous, appellate courts presume that the
Legislature intended the meaning plainly expressed, and
further judicial construction is not permitted.
[McElhaney ex rel McElhaney v Harper-Hutzel Hosp,
269 Mich.App. 488, 493; 711 N.W.2d 795 (2006) (citations
a statute specifically defines a given term, that definition
alone controls." Haynes v Neshewat, 477 Mich.
29, 35; 729 N.W.2d 488 (2007). Court rules are interpreted in
the same manner as statutes. In re KH, 469 Mich.
621, 628; 677 N.W.2d 800 (2004). If the language of a court
rule is unambiguous, it must be enforced as written.
court's decision on a motion for summary disposition is
reviewed de novo. Johnson v Recca, 492 Mich. 169,
173; 821 N.W.2d 520 (2012).
In reviewing a motion under MCR 2.116(C)(10), this Court
considers the pleadings, admissions, affidavits, and other
relevant documentary evidence of record in the light most
favorable to the nonmoving party to determine whether any
genuine issue of material fact exists to warrant a trial.
Summary disposition is appropriate if there is no genuine
issue regarding any material fact and the moving party is
entitled to judgment as a matter of law. A genuine issue of
material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue
upon which reasonable minds might differ. [Bank of
America, NA v Fidelity Nat'l Title Ins Co, 316
Mich.App. 480, 488; 892 N.W.2d 467 (2016) (quotation marks
and citations omitted).]
plaintiff in a medical malpractice action bears the burden of
proving: (1) the applicable standard of care, (2) breach of
that standard by defendant, (3) injury, and (4) proximate
causation between the alleged breach and the injury. Failure
to prove any one of these elements is fatal." Cox ex
rel Cox v Bd of Hosp Managers for City of Flint, 467
Mich. 1, 10; 651 N.W.2d 356 (2002) (quotation marks and
citation omitted). Although nurses do not engage in the
practice of medicine, the Legislature has made malpractice
actions available against any licensed health care
professional, including nurses. Id. at 19-20, citing
MCL 600.5838a; see also Sturgis, 268 Mich.App. at
490. In general, expert testimony is necessary in a
malpractice action to establish the applicable standard of
care and the defendant's breach of that standard.
Elher v. Misra, 499 Mich. 11, 21; 878
N.W.2d 790 (2016); see also Gay v Select Specialty
Hosp, 295 Mich.App. 284, 292; 813 N.W.2d 354 (2012)
(noting that a plaintiff alleging nursing malpractice was
required to present evidence concerning the applicable
standard of care and that the plaintiff "could do so
only through an expert's testimony."). "The
proponent of the evidence has the burden of establishing its
relevance and admissibility." Elher, 499 Mich.
at 22; see also Gay, 295 Mich.App. at 293
(explaining that "the party proposing to call an expert
bears the burden to show that his or her expert meets [the
requisite statutory] qualifications.").
600.2169(1) 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
(b) Subject to subdivision (c) [which is not relevant here],
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.
majority means more than 50 percent. Kiefer v.
Markley, 283 Mich.App. 555, 559; 769 N.W.2d 271 (2009).
MCL 600.2169(1)(b) "makes no qualification of its
applicability and, therefore, must be considered to apply
generally to all malpractice actions, including those
initiated against nonphysicians." McElhaney,
269 Mich.App. at 494. Therefore, plaintiff's proposed
expert witness on the standard of care, Beckmann, must have
devoted a majority of her professional time in the year
immediately preceding April 26, 2010, the date of the alleged
malpractice, to the active clinical practice of, or the
instruction of students in, the same health profession in
which McGregor was licensed, i.e., that of a registered
deposition testimony establishes that she devoted a majority
of her professional time in the year immediately preceding
April 26, 2010, to the practice of, or the instruction of
students in, the health profession of a nurse practitioner,
which, as explained below, is different from the health
profession of a registered nurse. According to Beckmann's
curriculum vitae, she has, among other degrees, a
post-master's certificate as a women's health nurse
practitioner. Beckmann testified that, during the relevant
time period,  she was the coordinator of the women's
health nurse practitioner graduate program in the college of
nursing at Rutgers University; in this position, she
instructed nurse practitioner students. The nurse
practitioner courses that she taught lasted the entire
semester. Beckmann lectured nurse practitioner students in an
academic setting and provided clinical training to nurse
practitioner students. Beckmann also gave labor and delivery
lectures in an undergraduate maternity nursing program, but
this lecturing comprised a smaller percentage of her
professional time than the time devoted to instructing nurse
practitioner students; she spent only about six hours each
semester lecturing undergraduate nursing students. Beckman
spent a couple days each semester filling in clinically for
faculty members who were teaching a course. The percentage of
her professional time lecturing on ...