Medical Malpractice – Notice of Affidavit

Author: LegalEase Solutions

  1. Must the plaintiff’s expert witness’ qualifications be a mirror image of those of the physicians against whom the lawsuit is brought? May the plaintiff’s expert witnesses’ qualifications exceed that of the defendant? That is, may the expert witness be an obstetrician/gynecologist, whereas the defendant was a general practitioner?

 In Gerald, one of the cases that the defendants cite, the expert witness was less qualified than the defendant physician (the expert lacked board certification) and their affidavit, therefore, did not suffice. In Kirkaldy, another case cited by defendant, the expert witness and the defendant had substantively different specialties (i.e. neurosurgeon and neurologist). However, neither these cases is similar to our client’s case, where the defendant physician’s expertise is “included” in the expert witness’s expertise.

Mich. Comp. Laws §  600.2169(2) deals with any expert witness, while Mich. Comp. Laws §  600.2169(1) deals only with expert witnesses regarding the standard of care. Expert testimony may encompass many subjects that do not involve the standard of care, such as causation. For an expert witness to be qualified to testify regarding the standard of care, however, the court must apply the requirements of §  600.2169(1). It would be impermissible for the trial court, when dealing with a proposed standard-of-care witness, to avoid the specific provisions of §  600.2169(1) and only apply the requirements of §  600.2169(2). Rather, when dealing with a proposed standard of care witness, the general provisions of §  600.2169(2) must be considered after a standard-of-care witness is qualified under the specific provisions of §  600.2169(1).

  • 600.2169(1) reads in relevant part:
  • 600.2169. Qualifications of expert witness in action alleging medical malpractice; determination; disqualification of expert witness; testimony on contingency fee basis as misdemeanor; limitations applicable to discovery.

Sec. 2169. (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) 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.

(2) In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following:

(a) The educational and professional training of the expert witness.

(b) The area of specialization of the expert witness.

(c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty.

(d) The relevancy of the expert witness’s testimony.

(3) This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section.

The following cases were found which seem to offer good material to use in the response brief, which lend credibility to the argument that a specialist may be qualified to testify on the standard of care for a general practitioner, and that an affidavit filed mistakenly may still be sufficient for purposes of MCL 600.2169:

In Elizabeth J. Bahr v. Harper-Grace Hospitals, 448 Mich. 135 (Mich. 1995) the Court held that a specialist may testify regarding the conduct of non-specialists, if he has knowledge of the applicable standard of care.  Id. at 141.

In Robbin Watts  v. Alexa I. Canady, M.D., 253 Mich. App. 468 (2002), the court held that the Michigan Legislature has set a lower threshold for evaluating the adequacy of an affidavit of merit in a medical malpractice action. An affidavit is sufficient if counsel reasonably, albeit mistakenly, believed that the affiant was qualified under Mich. Comp. Laws §  600.2169.  Id. at 472 (citing Decker v Flood, 248 Mich. App. 75, 86-87; 638 N.W.2d 163; (2001)).

 On the other hand, the following case seems to go against our client’s position, but may possibly be distinguished on the facts and the court ultimately recognizes that a specialist may testify on the standard of care for a general practitioner:

In Gale Justin Dyabata v. Ole Kistler, 140 Mich. App. 65 (1985), the patient consulted the general practitioner because of uterine bleeding, discharge, and pain. He treated her for functional uterine bleeding. Her condition did not improve, and she eventually underwent surgery for what was determined to be incomplete abortion, chronic pelvic inflammatory disease, pyosapinx, and pelvic adhesions. She filed suit seeking damages for loss of her fallopian tubes, sterility, medical expenses, pain and suffering, and lost earnings. The trial court barred the testimony of the specialist, finding that the specialist was not qualified to testify regarding the standard of care applicable to a general practitioner. Importantly, the court did note that  the trial court correctly recognized that a specialist may testify concerning the standard of care applicable to a general practitioner if the specialist in fact has knowledge of that standard of care.  Id at 71 (citing Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976)).

In Siirila v. Barrios, 398 Mich 576 (1976) the Supreme Court held that “it is clear that a member of one school of thought may testify as to the standard of care applicable to an individual adhering to another school as long as the proffered witness is familiar with the applicable standards of defendant’s school.” Id. at 592.  The Court went on to state:

“We do not read our precedents to preclude opinion testimony of compliance or failure of compliance with the standards of a defendant’s profession except only from a member of that profession. We never have addressed our decisional attention to this specific question.  However, it is significant that on a number of occasions in which we have discussed opinion testimony in malpractice cases, we have suggested that opinions of one not a practitioner of defendant’s profession would have been admissible had there been a showing that the offered witness had knowledge of the applicable standards of the defendant’s profession. See, for example, Zoterell v Repp, 187 Mich 319, 330 [153 NW 692] (1915); Sima v Wright, 268 Mich 352, 356 [256 NW 349] (1934); Facer v Lewis, 326 Mich 702, 713, 714 [40 NW2d 457] (1950); and Pedler v Emmerson, 331 Mich 78 (1951).” Frazier v Hurd, 380 Mich 291, 297; 157 NW2d 249 (1968).

Id. at 591-592.  The Court went on to state, that in Frazier v. Hurd, supra,  the court permitted a medical doctor to testify as to the standard of care of an osteopathic physician and that in, Ferguson v Gonyaw, 64 Mich App 685, 696; 236 NW2d 543 (1975), a neurosurgeon was permitted to testify as to standard of care of osteopathic neurosurgeon after qualifying on basis of testimony that medical and osteopathic neurosurgical procedures were similar).  Id.   The Court went on to reason that pediatricians and general practitioners are both medical doctors and therefore there is even less reason to preclude testimony of one on the standard of care of the other than there would be if members of different schools were involved. Id. at 593.  The Court held:

The rule therefore as to the ability of a specialist testifying as to a general practitioner’s compliance with the requisite standard of care of a general practitioner is only that the witness have knowledge of the standard of care about which he or she is testifying…The weight to be given such testimony is, of course, a matter for the jury.

 Id.

In Rebecca Grossman v. Otto W. Brown, 470 Mich 593 (2004) decedent went to the hospital to undergo an elective surgery on his carotid artery. After the surgery, decedent began to bleed heavily internally; he died two days later. The survivor filed an affidavit of merit with her medical malpractice complaint, as required by Mich. Comp. Laws §  600.2912d(1) and Mich. Comp. Laws §  600.2169. As required, the survivor’s counsel researched the physician’s qualifications to obtain a qualified expert witness. Counsel maintained that, when he accessed the American Medical Association’s web-site, he learned that the physician was only board certified in general surgery. As a result, for the affidavit of merit, counsel obtained a physician board-certified in general surgery who specialized in vascular surgery. In their motion for summary disposition, the physician and the hospital maintained that the expert was not qualified. The court stated that at the moment the affidavit of merit was being prepared, plaintiff’s attorney used the resources available to him and reasonably concluded that he had a match sufficient to meet the requirements for naming an expert. The expert was qualified for this stage of the litigation.  The court held in part:

Under Michigan’s statutory medical malpractice procedure, plaintiff must obtain a medical expert at two different stages of the litigation–at the time the complaint is filed and at the time of trial. With regard to the first stage, under MCL 600.2912d(1), a plaintiff is required to file with the complaint an affidavit of merit signed by an expert who the plaintiff’s attorney reasonably believes meets the requirements of MCL 600.2169. With regard to the second stage, the trial, MCL 600.2169(1) states that “a person shall not give expert testimony . . . unless the person” meets enumerated qualifications (emphasis added). Thus, while at the affidavit-of-merit stage a plaintiff’s attorney need only “reasonably believe” the expert is qualified, 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).

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). Thus, the Legislature apparently chose to recognize that at the first stage, in which the lawsuit is about to be filed, the plaintiff’s attorney only has available publicly accessible resources to determine the defendant’s board certifications and specialization. At this stage, the plaintiff’s attorney need only have a reasonable belief that the expert satisfies the requirements of MCL 600.2169. See MCL 600.2912d(1). However, by the time the plaintiff’s expert witness testifies at trial, the plaintiff’s attorney has had the benefit of discovery to better ascertain the qualifications of the defendant physician, and, thus, the plaintiff’s attorney’s reasonable belief regarding the requirements of MCL 600.2169 does not control whether the expert may testify.

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Thus, at the moment the affidavit of merit was being prepared, plaintiff’s attorney used the resources available to him and reasonably concluded that he had a match sufficient to meet the requirements for naming an expert.

Id. at 598-600.  Again, it is important to note that the court recognized in its decision the unavailability of discovery to civil litigants that time of filing suit, and how this must be a consideration when a court is evaluating whether an affidavit of merit is sufficient or not.