Jason Turkish v. William Beaumont Hospital ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
JASON TURKISH, UNPUBLISHED
December 13, 2018
Plaintiff-Appellant,
v No. 339522
Oakland Circuit Court
WILLIAM BEAUMONT HOSPITAL, LC No. 2015-147273-NH
Defendant-Appellee.
Before: O’BRIEN, P.J., and TUKEL and LETICA, JJ.
LETICA, J. (dissenting).
While the majority has correctly outlined the facts, in my opinion, our binding caselaw
requires the opposite result. Accordingly, I would reverse and remand for entry of an order
granting plaintiff’s motion in limine and remand for further proceedings.
Under MCL 600.2169(1)(b), a proposed “expert witness must have devoted a majority of
his professional time during the year immediately preceding the date on which the alleged
malpractice occurred to practicing or teaching the specialty that the defendant physician was
practicing at the time of the alleged malpractice, i.e., the one most relevant specialty.” Woodard
v Custer, 476 Mich 545, 566; 719 NW2d 842 (2006). Obviously, “one cannot devote a
‘majority’ of one’s professional time to more than one specialty.” Id.In Hamilton v Kuligowski, the companion case to Woodard, “[t]he defendant physician
[was] board certified in general internal medicine and specialize[d] in general internal medicine.”
Id. at 556. The “[p]laintiff’s proposed expert witness [was] board certified in general internal
medicine and devote[d] a majority of his professional time to treating infectious diseases, a
subspeciality of internal medicine.” Id. Although this Court concluded that the “plaintiff’s
expert [was] qualified to testify against the defendant physician because both plaintiff’s proposed
expert witness and the defendant physician specialize[d] in internal medicine and because
plaintiff’s proposed expert . . . devote[d] a majority of his professional time to the practice of
internal medicine given that the treatment of infectious diseases is a subspecialty of internal
medicine[,]” our Supreme Court reversed. Id. at 554, 556-557. In doing so, it explained:
During the year immediately preceding the alleged malpractice, plaintiff’s
proposed expert witness did not devote a majority of his time to practicing or
teaching general internal medicine. Instead, he devoted a majority of his
professional time to treating infectious diseases. As he himself acknowledged, he
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is “not sure what the average internist sees day in and day out.” Therefore,
plaintiff’s proposed expert witness does not satisfy the same practice/instruction
requirement of § 2169(1)(b). [Id. at 578.]
Following the plain statutory language and this caselaw, our Court held that the proposed
expert must devote more than 50% of his or her professional time to the practice of “the relevant
specialty the year before the alleged malpractice.” Kiefer v Markley, 283 Mich App 555, 559;
769 NW2d 271 (2009). In Kiefer, both the plaintiffs’ expert witness and the defendant physician
were board certified in plastic surgery with an added qualification in hand surgery. Id. at 560.
The trial court granted the defendants’ motion in limine to strike the plaintiffs’ expert witness
pursuant to MCL 600.2169(1)(b) because the plaintiffs’ expert witness dedicated, at most, 40%
of his professional time to hand surgery, which was the relevant medical specialty at issue. Id. at
557. This Court upheld the trial court’s decision because the plaintiffs’ expert did not devote
more than 50% of his time to the same specialty as the defendants’ expert witness. Id. at 560.
Here, based on Dr. Farjo’s deposition testimony, he is not qualified to give standard-of-
care testimony under MCL 600.2169(1)(b). Dr. Nowinski is a board-certified orthopedic
surgeon who was actively practicing as an orthopedic surgeon when the alleged malpractice and
negligence occurred. Dr. Farjo is also board certified in orthopedic surgery but he dedicated
most of his professional time to sports medicine in the relevant time period. In fact, Dr. Farjo
testified that he devoted as much as 70% of his professional time in the last 10 years to either
laparoscopic or arthroscopic sports medicine.1 Sports medicine is a subspecialty of orthopedic
surgery because it is a more particularized branch of orthopedic surgery. See Woodard, 476
Mich at 562, 577-578. The fact that Dr. Farjo considers himself a specialist in both sports
medicine and orthopedic surgery is irrelevant because Hamilton and Kiefer make clear that the
proposed expert witness must spend a majority of his or her professional time in the relevant
specialty or subspecialty. Woodard, 476 Mich at 566 n 12; Kiefer, 283 Mich App at 559.
Likewise, the fact that Dr. Farjo has not opted to become board certified in sports medicine is
irrelevant. Woodard, 476 Mich at 561 (“Both the dictionary definition of ‘specialist’ and the
plain language of § 2169(1)(a) make it clear that a physician can be a specialist who is not board
certified. They also make it clear that a ‘specialist’ is somebody who can potentially become
board certified. Therefore, a ‘specialty’ is a particular branch of medicine or surgery in which
one can potentially become board certified.”) And, finally, that Dr. Farjo previously made the
particular medical decision at issue—discontinuing Coumadin therapy—is also immaterial
because MCL 600.2169 focuses on the particular medical specialty or subspecialty of the
proposed expert witness and the defendant physician. Therefore, Dr. Farjo does not qualify as an
expert witness under MCL 600.2169(1)(b) because he did not spend a majority of his
professional time in the practice of orthopedic surgery during the year immediately preceding
August 2011. See id. at 565-566 & n 12.
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Dr. Farjo certainly attempted to reverse course regarding his subspeciality before again
admitting it was “more than 50 percent” of his practice and that he held himself out as a sports
medicine specialist.
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Thus, in my opinion, the circuit court abused its discretion by admitting Dr. Farjo’s
testimony because it misapplied the relevant law. Craig v Oakwood Hosp, 471 Mich 67, 76; 684
NW2d 296 (2004) (“A court necessarily abuses its discretion when it ‘admits evidence that is
inadmissible as a matter of law.’ ”), quoting People v Katt, 468 Mich 272, 278; 662 NW2d 12
(2003). And, while my colleagues seek to distinguish Hamilton on the basis that the proposed
expert there acknowledged that he was unsure about “ ‘what the average internist sees day in and
day out,’ ” the problem there is the problem here: the proposed expert devoted a majority of his
professional time to a subspecialty regardless of any overlap. Woodard, 476 Mich 578.
For these reasons, I would reverse and remand for entry of an order granting plaintiff’s
motion in limine and for further proceedings.
/s/ Anica Letica
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