Valerie Fenwick v. Louis L Sobol Md ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
VALERIE FENWICK, UNPUBLISHED
October 12, 2023
Plaintiff-Appellee,
v No. 358684
Oakland Circuit Court
LOUIS L. SOBOL, M.D., and OAKLAND ENT, LC No. 2019-173257-NH
PLC, formerly known as TROY ENT, PLC,
Defendants-Appellants.
Before: MURRAY, P.J., and O’BRIEN and SWARTZLE, JJ.
PER CURIAM.
In this interlocutory appeal involving the qualification of an expert witness to testify in a
medical malpractice dispute, defendants, Louis L. Sobol, M.D. (Dr. Sobol), and Oakland ENT,
PLC, formerly known as Troy ENT, PLC (Oakland ENT), appeal by leave granted1 the trial court’s
order granting plaintiff’s motion to confirm the admissibility of the testimony of her sole expert
witness, Dr. Barry Wenig. On appeal, defendants contend that the trial court abused its discretion
by ruling that Dr. Wenig was qualified to testify under MCL 600.2169. We reverse the trial court’s
order and remand for further proceedings consistent with this opinion.
I. BACKGROUND
This case arises from plaintiff’s October 2016 medical treatment with Dr. Sobol, a
physician and board-certified otolaryngologist (ear, nose, and throat doctor), at Oakland ENT.2
Plaintiff sought treatment from Dr. Sobol for ongoing pain in her left ear after being treated
unsuccessfully for a suspected ear infection at an urgent care facility. Dr. Sobol examined plaintiff
and diagnosed her as suffering from otitis externa (inflammation of the outer ear canal)
complicated by wax impaction. Dr. Sobol performed a cerumenectomy (removal of earwax) with
1
See Fenwick v Sobol, MD, unpublished order of the Court of Appeals, entered March 10, 2022
(Docket No. 358684).
2
At the time of plaintiff’s treatment, Oakland ENT was operating as Troy ENT, PLC.
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suction and an otoscope. Following the wax removal, plaintiff suffered continuing pain in her left
ear along with vertigo, difficulty hearing, and discharge from the ear. Subsequent examinations
by other physicians revealed a perforation of plaintiff’s left eardrum and worsening infection.
Plaintiff underwent three surgeries and continues to suffer loss of hearing.
Plaintiff filed a medical malpractice claim against defendants in 2019. Plaintiff asserted
that Dr. Sobol breached the standard of care when treating her by failing to take a complete medical
history and conduct a thorough physical examination, and by performing an earwax-removal
procedure that was “unnecessary, inappropriate, and contraindicated” because plaintiff had an
atypical ear infection and compromised immune system at the time. Plaintiff asserted that Dr.
Sobol’s improper treatment directly and proximately caused her to suffer a permanent ear injury
requiring multiple corrective surgeries.
Dr. Wenig, also a board-certified otolaryngologist, opined at his deposition that Dr. Sobol
breached the standard of care applicable to reasonably prudent otolaryngologists. Dr. Wenig is
the chairman of the otolaryngology department and the director of head and neck and robotic
surgery at the University of Illinois-Chicago medical school. Dr. Wenig testified at his deposition
that he specializes in a distinct subspecialty of otolaryngology—head and neck oncology surgery:
Q. Okay. Is there a specific area that you will serve as an expert in more
often than others, meaning, for example, head and neck oncology surgery or
something like that?
A. Yes.
Q. And what is that?
A. Head and neck surgery, which is a fairly broad area, but clearly, as it is
my subspecialty and a majority of my practice, most of my testimony is directed to
that area.
* * *
Q. Would you agree that within the field of otolaryngology, there are
multiple, I guess, subspecialties?
A. Yes, of course.
Q. Some otolaryngologists will practice general ENT, and others will
specialize in fields such as yours, which I think is head and neck oncology surgery;
is that fair?
A. That’s fair.
Dr. Wenig went on to testify that he primarily works with oncology patients and that, since 2012,
about 80% of the work he performs involves oncology-related procedures:
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Q. And are you even more specialized in head and neck surgery, where the
focus of your head and neck surgery practice is in oncology patients?
A. It’s primarily in oncology, but I do reconstructions as well, and other
types of head and neck surgery, a lot of laryngeal surgery with lasers. I do a very
significant number of robotic cases, but the robotic cases are essentially oncologic
cases. So I would say about 80 percent of what I do is oncologically [sic] related
procedures.
Dr. Wenig testified that he did some general otolaryngology earlier in his career, but since 2012
he primarily concentrated on head and neck oncology surgeries, with only a “small percentage” of
his practice devoted to other forms of otolaryngology. Dr. Wenig stated that he performed ear
examinations on all his patients and occasionally did earwax removal if incidentally discovered,
but this was an aspect of general otolaryngology usually performed by a general otolaryngologist
in the department.
Q. In your practice are there general otolaryngologists or would that be a
separate department, if you will?
A. No, no, we have two or three general otolaryngologists.
Q. So those two or three general otolaryngologists are the ones that would
typically see patients for things like earwax removal or ear infections or things of
that sort; is that true?
A. Yeah. I mean if somebody is sent specifically for earwax removal, they
would probably wind up seeing a general otolaryngologist. You know, depending
on how the—we have a call center, so depending on how the call center directs the
call, it could go to one of our otologists as well, but I would say either one of our
PAs or one of our general otolaryngologists would see somebody classified as
having earwax as a problem.
* * *
Q. And fair to say that probably less than 10 percent of your practice overall
would deal with those types of patients, or is it even that high?
A. I would say it’s probably that high, but it would not be necessarily for
ear infections, unless I noted a secondary ear infection to the problem that the
patient was sent to me with. But every patient gets, as part of their overall exam,
an ear exam as well, and so if there is wax, not specifically seeing me for earwax,
but if I incidentally find earwax, we will clean their ears out as well.
Dr. Wenig was also asked how much of his professional time was spent training residents versus
clinical practice. He testified:
A. Well, the two overlap quite a bit, because whenever I’m seeing patients,
residents are with me. Whenever I’m in the operating room, residents are with me.
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We are communicating on a daily basis about our patients. So resident training is
built in or baked in to what I do and what we do here in our department.
Q. And is the vast majority of residents that you train general ENTs?
A. Well, everyone is trained as a general ENT, and I would say we have a
very unique department where we afford our residents the ability to subspecialize
when they get done here, as well as to go into practice if they choose to do that. I
think statistically we average around 50/50 where people go do subspecialties and
practice that subspecialty, and the remaining 50 percent will go into general
practice.
Following Dr. Wenig’s deposition, plaintiff moved for the trial court to confirm the
admissibility of Dr. Wenig’s testimony. Plaintiff argued that, while the majority of Dr. Wenig’s
practice involved head and neck surgical oncology, his sole board-certified specialty was, like Dr.
Sobol, in general otolaryngology. Plaintiff further argued that Dr. Wenig is the chair of the
otolaryngology department and that the majority of his administrative and instructional time is
spent teaching general otolaryngology residents. Accordingly, plaintiff asserted that Dr. Wenig
was qualified to testify in the field of general otolaryngology under MCL 600.2169. Plaintiff
supported her motion with an undated affidavit from Dr. Wenig in which he averred:
During the year preceding May 30, 2016, the majority of my administrative
and professional time is spent instructing and supervising general Otolaryngology
residents, who may then later attend a fellowship at any institution in a subspecialty.
Although 80% of my surgery now involves Head and Neck Oncology
surgery (since December 2012), I have general otolaryngology residents and/or
fellows with me during surgery or rounding on patients, at almost all times. The
majority of them are general Otolaryngology residents who I supervise and train.
As I explained at my deposition, at our institution, about 50% of our
residents choose to subspecialize, and the remainder go into general practice.
Defendants countered that, because Dr. Wenig did not devote a majority of his professional
time to either or both the active clinical practice of general otolaryngology and/or instructing
students in that same specialty for the year before the alleged malpractice, he was not qualified to
testify under MCL 600.2169.
The trial court ultimately concluded that Dr. Wenig was qualified to testify and granted
plaintiff’s motion, but it provided no substantive reasoning or analysis for its decision. This appeal
followed.
II. STANDARD OF REVIEW
This Court reviews a trial court’s ruling concerning a proposed expert witness’s
qualifications to testify for an abuse of discretion. Crego v Edward W Sparrow Hosp Ass’n, 327
Mich App 525, 529; 937 NW2d 380 (2019). “A trial court abuses its discretion when its decision
falls outside the range of principled and reasonable outcomes.” Id. at 529. This Court reviews de
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novo questions of law underlying evidentiary rulings, such as the interpretation of court rules and
statutes. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). “If [a statute’s] language is
clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial
construction is not permitted.” Nyman v Thomson Reuters Holdings, Inc, 329 Mich App 539, 544;
942 NW2d 696 (2019).
III. ANALYSIS
Defendants argue that the trial court abused its discretion by ruling that Dr. Wenig was
qualified to testify under MCL 600.2169. According to defendants, Dr. Wenig did not satisfy the
qualification requirement under MCL 600.2169(1)(b) because he did not actively practice or
instruct students in the same specialty as Dr. Sobol for a majority of Dr. Wenig’s professional time
during the year before the alleged malpractice. We agree.
To establish a claim of medical malpractice, a party must present evidence via expert
testimony of the relevant standard of care. See Gay v Select Specialty Hosp, 295 Mich App 284,
292; 813 NW2d 354 (2012). “A physician who testifies regarding the standard of care at issue
must satisfy the requirements of MCL 600.2169(1).” Rock v Crocker, 499 Mich 247, 260; 884
NW2d 227 (2016).
MCL 600.2169(1) provides, as relevant here:
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.
[Emphasis added.]
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“The proponent of expert testimony in a medical malpractice case must satisfy the court that the
expert is qualified under . . . MCL 600.2169.” Elher, 499 Mich at 22 (footnote and citation
omitted). “MCL 600.2169(1)(b) . . . requires a proposed expert physician to spend greater than 50
percent of his or her professional time practicing [and/or teaching] the relevant specialty the year
before the alleged malpractice.” Kiefer v Markley, 283 Mich App 555, 559; 769 NW2d 271 (2009).
In Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006), our Supreme Court explained
that MCL 600.2169(1) “requires the matching of a singular specialty, not multiple specialties.” Id.
at 559. After taking note of the practice and/or teaching requirement in MCL 600.2169(1)(b), the
Woodard Court stated:
Obviously, a specialist can only devote a majority of his professional time to one
specialty. Therefore, it is clear that § 2169(1) only requires the plaintiff’s expert to
match one of the defendant physician’s specialties. Because the plaintiff’s expert
will be providing expert testimony on the appropriate or relevant standard of
practice or care, not an inappropriate or irrelevant standard of practice or care, it
follows that the plaintiff’s expert witness must match the one most relevant
standard of practice or care—the specialty engaged in by the defendant physician
during the course of the alleged malpractice, and, if the defendant physician is board
certified in that specialty, the plaintiff’s expert must also be board certified in that
specialty. [Id. at 560.]
“[A] ‘specialty’ is a particular branch of medicine or surgery in which one can potentially become
board certified.” Id. at 561.
[A] ‘subspecialty’ is a particular branch of medicine or surgery in which one can
potentially become board certified that falls under a specialty or within the
hierarchy of that specialty. A subspecialty, although a more particularized
specialty, is nevertheless a specialty. Therefore, if a defendant physician
specializes in a subspecialty, the plaintiff’s expert witness must have specialized in
the same subspecialty as the defendant physician at the time of the occurrence that
is the basis for the action. [Id. at 562 (footnote omitted).]
The Woodard Court also provided the following explanation concerning the practice and/or
teaching requirement in MCL 600.2169(1)(b):
As we explained above, one cannot devote a “majority” of one’s professional time
to more than one specialty. Therefore, in order to be qualified to testify under
§ 2169(1)(b), the plaintiff’s 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 same specialty that the
defendant physician was practicing at the time of the alleged malpractice, i.e., the
one most relevant specialty. [Id. at 566 (footnote omitted).]
The Court explained further:
Just as a subspecialty is a specialty within the meaning of §2169(1)(a), a
subspecialty is a specialty within the meaning of §2169(1)(b). Therefore, if the
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defendant physician specializes in a subspecialty and was doing so at the time of
the alleged malpractice, the plaintiff’s 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 that subspecialty. [Id. at
566 n 12.]
For these reasons, “the plaintiff’s expert does not have to match all of the defendant physician’s
specialties; rather, the plaintiff’s expert only has to match the one most relevant specialty.” Id. at
567-568.
As relevant here, in Hamilton v Kuligowski, the companion case in Woodard, the Court
affirmed that the plaintiff’s expert, although board certified in general internal medicine like the
defendant physician, did not meet the practice and/or teaching requirement of MCL
600.2169(1)(b) because he (1) spent a majority of his professional time during the relevant period
treating infectious diseases, a subspecialty of the one most relevant specialty of general internal
medicine, and (2) he acknowledged not knowing “ ‘what the average internist sees day in and day
out.’ ” Id. at 556, 577-578.
As an initial matter, we disagree with plaintiff’s contention that the language in Woodard
stating that a specialist can only devote a majority of his or her professional time to one specialty
is dicta. “Unlike holdings, [o]biter dicta are not binding precedent. Instead, they are statements
that are unnecessary to determine the case at hand and, thus, lack the force of an adjudication.”
Estate of Pearce v Eaton Co Rd Comm, 507 Mich 183, 197; 968 NW2d 323 (2021) (quotation
marks and citation omitted; alteration in original). The language challenged as dicta, which the
Woodard Court provided twice in its majority opinion, was necessary to determine the case. The
statements were provided within an extensive analysis and interpretation of MCL 600.2169(1),
including MCL 600.2169(1)(b), with subdivision (1)(b) explicitly applied in resolving the facts of
the case. Indeed, the language was critical to the Court’s conclusion that a plaintiff’s expert is
required to match only the relevant specialty in a given case, and to devote a majority of his or her
professional time to that one most relevant specialty.
We further disagree with plaintiff that the portion of Woodard that plaintiff calls dicta is
“incorrect.” We agree with plaintiff to the extent she argues that MCL 600.2169(1)(b) envisions
that an expert can both practice and teach a given specialty during a period of time. Indeed, this
is plainly envisioned by the statutory language stating that an expert must have spent a majority of
his or her professional time “either or both” practicing or teaching in the relevant specialty. MCL
600.2169(1)(b). But an expert cannot spend a majority of his or her professional time practicing
one specialty while simultaneously spending a majority of his or her professional time teaching
another, particularly given the earlier-discussed language from Woodard.
Here, Dr. Wenig testified that he subspecialized and spent the majority—specifically, about
80%—of his practice in head and neck oncology surgery. While Dr. Wenig testified that he
performed ear examinations on all his patients, occasionally did earwax removal if incidentally
discovered during treatment, and regularly trained residents on ear-cleaning, he acknowledged that
only 10% of his professional time was devoted to general otolaryngology. From this testimony,
the only reasonable conclusion is that Dr. Wenig spent a majority of his professional time
practicing head and neck oncology, not general otolaryngology.
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Plaintiff insists that, based on Dr. Wenig’s affidavit, he satisfies MCL 600.2169(1)(b)(ii)
“because a majority of his professional time is spent teaching general ENT residents.” In effect,
plaintiff argues that it does not matter what Dr. Wenig taught during that time but to whom he
taught it. Indeed, this would be the only way in which Dr. Wenig’s affidavit could satisfy MCL
600.2169(1)(b)(ii) because Dr. Wenig never averred in that affidavit that he taught general
otolaryngology to residents, only that he taught general otolaryngology residents. But Woodard
makes clear that MCL 600.2169(1)(b)(ii) is satisfied if, during the past year, the expert spent a
majority of his or her professional time “teaching the same specialty that the defendant physician
was practicing at the time of the alleged malpractice, i.e., the one most relevant specialty.”
Woodard, 476 Mich at 566. Again, Dr. Wenig testified that the vast majority of his practice was
devoted to head and neck oncology surgery, not general otolaryngology. Thus, even if general
otolaryngology residents were present and being instructed during most of Dr. Wenig’s practice,
this instruction was primarily in head and neck oncology surgery, not general otolaryngology.
Accordingly, Dr. Wenig’s affidavit does not establish that he is qualified as an expert under MCL
600.2169(1)(b)(ii).3
For the foregoing reasons, the record plainly establishes that a majority of Dr. Wenig’s
professional time in the year before the alleged malpractice was not spent either practicing or
instructing students in general otolaryngology, the relevant specialty here. Therefore, the trial
court abused its discretion by ruling that Dr. Wenig was qualified to testify under MCL 600.2169.
Reversed and remanded. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Colleen A. O’Brien
/s/ Brock A. Swartzle
3
Plaintiff also argues that MCL 600.2169 violates the separation of powers under the Michigan
Constitution. However, a majority of our Supreme Court already rejected this argument in
McDougall v Schanz, 461 Mich 15, 37; 597 NW2d 148 (1999). Being bound by McDougall, we
need not address this issue further.
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