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Cox v. Hartman

Court of Appeals of Michigan

December 12, 2017

LEANA M. COX, formerly known as LEANA M. TARAVELLA, Individually and as Next Friend of ANGELINA A. COX, a Minor, Plaintiff-Appellant,
v.
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.

         St. Clair Circuit Court LC No. 2014-002074-NH

          Before: Jansen, P.J., and Cavanagh and Cameron, JJ.

          PER CURIAM.

         These 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[1] 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[2] 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 Cox v Hartman, unpublished order of the Court of Appeals, entered January 20, 2017 (Docket No. 333849); Cox v Hartman, unpublished order of the Court of Appeals, entered January 20, 2017 (Docket No. 333994).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.

         This 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 McGregor.[3]

         After 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.

         Plaintiff 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.

         A trial 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 omitted).]

         "When 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. Id.

         A trial 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).]

         "The 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);[4] 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.").

         MCL 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 following criteria:
(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.

         A 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 nurse.

         Beckmann's 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, [5] 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 ...


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