Reeves v. CARSON CITY HOSPITAL , 480 Mich. 1056 ( 2008 )

743 N.W.2d 894 (2008)

Catherine Ruth REEVES and Anthony Lynn Reeves, Plaintiffs-Appellees,
v.
CARSON CITY HOSPITAL and Lynn Squanda, D.O., Defendants-Appellants.

Docket No. 134084. COA No. 266469.

Supreme Court of Michigan.

February 1, 2008.

On order of the Court, the motion for leave to file brief amicus curiae is GRANTED. The application for leave to appeal the March 8, 2007 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

CORRIGAN, J., concurs and states as follows:

This case returns to this Court after the Court of Appeals reconsidered it in light of Woodard v. Custer, 476 Mich. 545, 719 N.W.2d 842 (2006), In this medical malpractice case, defendants argue that plaintiffs' expert is not qualified under MCL 600.2169 to testify against defendant Lynn Squanda, D.O. Squanda is board-certified in family medicine but she treated plaintiff Catherine Reeves in the emergency room for a presumed ectopic pregnancy. Plaintiffs' expert is board-certified in emergency medicine but not in family medicine.

The trial court, relying on Halloran v. Bhan, 470 Mich. 572, 683 N.W.2d 129 (2004), struck plaintiffs' expert because he was not qualified as a board-certified expert in family medicine. Halloran required that the proposed expert witness share the same specialty and board certification as the party against whom or on whose behalf the testimony was offered. Id. at 579, 683 N.W.2d 129. After striking plaintiffs' expert witness, the trial court granted defendants' motion for summary disposition. The Court of Appeals affirmed on the basis of Halloran. Reeves v. Carson City Hosp., 2006 WL 891022 unpublished opinion per curium of the Court of Appeals, issued April 6, 2006 (Docket No. 266469). In lieu of granting leave to appeal, this Court vacated the Court of Appeals judgment and remanded the case for reconsideration in light of Woodard, which we decided after the Court of Appeals had issued its opinion in this case. Woodard addressed an issue not reached in Halloran—whether board certificates that are not relevant to the alleged malpractice must match. In Halloran, the parties did not dispute that the relevant specialty was internal medicine. Because plaintiff's expert was not board-certified in internal medicine, he was not qualified to testify under MCL 600.2169. Woodard, however, later held that a plaintiffs expert must match only the one most relevant specialty of the defendant physician.^[1] On remand, the Court of Appeals ruled that the relevant specialty was emergency medicine, the specialty that defendant Squanda was practicing at the time of the alleged malpractice. Although plaintiffs' expert did not match defendant Squanda's board certification in family medicine, that specialty was irrelevant. Therefore, it was sufficient under Woodard that plaintiffs' expert was board-certified in emergency medicine.^[2]Reeves v. Carson City Hosp. (On Remand), 274 Mich.App. 622, 736 N.W.2d 284 (2007).

In my view, the Court of Appeals has complied with Woodard's direction to identify the one most relevant specialty. I concur in the denial of leave to appeal because the Court of Appeals result is consistent with the Woodard decision. Defendant Squanda was practicing emergency medicine and could become boardcertified in it, so under Woodard she was practicing the relevant specialty of emergency medicine.

Although I concur in the denial of leave to appeal, I note that other potential avenues remain available for testing an expert witness's qualifications for testifying. The Court unanimously agreed in Woodard that "even when a proffered expert meets the criteria contained in § 2169(1), the expert is subject to further scrutiny under § 2169(2)and (3), [MCL 600.2955], and MRE 702." A majority specifically agreed that the trial court may require that other relevant specialties match. Id. at 580, 582, 719 N.W.2d 842 (Markman, J., concurring); id. at 591, 719 N.W.2d 842 (Opinion of Taylor, C.J.).

Here, plaintiffs' expert may well match the "one most relevant specialty" of emergency medicine. Nonetheless, on the basis of Woodard, an argument may be advanced that an expert lacks expertise in the additional relevant specialty of family medicine. Defendants here, for example, may argue that the practice of family medicine was so integral to the care defendant Squanda provided that plaintiffs' expert must specialize in emergency medicine and be board-certified in family medicine. Because Woodard was decided after defendants filed their motion to strike, the record contains no argument under § 2169(2), § 2955, or MRE 702. Therefore, I join the order denying leave to appeal. Nevertheless, a potentially viable argument is available, even after Woodard.

NOTES

[1] Woodard, supra at 559, 719 N.W.2d 842, explained:

That is, § 2969(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.

[2] Because the Court of Appeals had no record regarding the remaining statutory requirements, it remanded the case for further consideration.