Grossman v. Brown

Michigan Supreme Court

Lansing, Michigan

Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

FILED JULY 20, 2004

REBECCA GROSSMAN, as Personal

Representative of the Estate of

FRED GROSSMAN, Deceased,

Plaintiff-Appellee,

v No. 122458

OTTO W. BROWN, M.D., SINAI HOSPITAL,

an assumed name of SINAI HOSPITAL OF

GREATER DETROIT, a Michigan Non-Profit

Corporation,

Defendants-Appellants,

and

ROBERT MURRAY, M.D.,

Defendant.

_______________________________

BEFORE THE ENTIRE BENCH

TAYLOR, J.

At issue here is whether plaintiff’s attorney had a

reasonable belief under MCL 600.2912d(1) that plaintiff’s

medical expert satisfied the expert witness requirements of

MCL 600.2169 in order to sign plaintiff’s affidavit of

merit. We hold that plaintiff’s attorney had such a

reasonable belief. Having reached the same conclusion, the

circuit court decision is affirmed, and this case is

remanded to that court for further proceedings.

I. FACTS

Plaintiff’s husband, Fred Grossman, went to defendant

Sinai Hospital to undergo an elective carotid

endarterectomy (surgical removal of the lining of the

carotid artery).1 The physician who performed the surgery

was defendant Dr. Otto Brown. He is board-certified in the

specialty of general surgery and possesses what is somewhat

ambiguously described as “a certificate of special

qualifications in vascular surgery.” After the surgery,

Mr. Grossman began bleeding internally and had to be rushed

back into surgery. Approximately two days later, Mr.

Grossman died.

In preparation for her lawsuit, plaintiff sent a

notice of intent to file a claim to defendants as required

by MCL 600.2912b(1). The notice of intent alleged that

defendants Dr. Brown and Sinai Hospital, as well as another

doctor who is not a party to this appeal, were negligent by

failing to properly evaluate Mr. Grossman and by failing to

1

This is a type of vascular surgery.

2

provide appropriate postoperative care, the culmination of

which was Mr. Grossman’s death.

In commencing her lawsuit, plaintiff filed an

affidavit of merit with her medical malpractice complaint

as required by MCL 600.2912d(1)2 and MCL 600.2169.3 These

two statutes require the plaintiff’s counsel to file an

affidavit of merit signed by a physician who counsel

2

MCL 600.2912d(1) states the following, in pertinent

part:

T]he plaintiff in an action alleging medical

malpractice or, if the plaintiff is represented

by an attorney, the plaintiff’s attorney shall

file with the complaint an affidavit of merit

signed by a health professional who the

plaintiff’s attorney reasonably believes meets

the requirements for an expert witness under [MCL

600.2169].

3

MCL 600.2169 states the following, in pertinent part:

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. [MCL

600.2169(1).]

3

reasonably believes specializes in the same specialty as

the defendant physician. If, however, the defendant

physician is a board-certified specialist, the plaintiff’s

counsel must reasonably believe the affidavit-of-merit

expert is board-certified in that specialty.4 Consequently,

plaintiff’s counsel researched defendant Dr. Brown’s

qualifications in order to obtain a qualified expert

witness. Plaintiff’s counsel asserted that he accessed the

American Medical Association’s (AMA) website where he

viewed defendant Brown’s qualifications, saw that he was

board-certified only in general surgery, and confirmed that

there is no vascular surgery board certification. Thus,

according to plaintiff’s counsel’s research, Dr. Brown was

board-certified only in general surgery. That is,

plaintiff’s counsel believed that there was no board

certification for the specialty of vascular surgery.

Accordingly, for the affidavit of merit, plaintiff’s

counsel obtained a physician board-certified in general

surgery who specialized in vascular surgery, Dr. Alex

4

See Halloran v Bhan, 470 Mich ___; ___ NW2d ___

(2004). We ordered Halloran to be argued and submitted

with this case. 468 Mich 868 (2003).

4

Zakharia,5 who reinforced counsel’s belief that there is no

board certification in vascular surgery.

After answers to the complaint had been filed,

defendants Sinai Hospital and Dr. Brown moved for summary

disposition on the basis that plaintiff’s expert was not

qualified to sign the affidavit of merit under MCL

600.2169. Defendants argued that defendant Dr. Brown,

while being board-certified in general surgery, also has a

certificate of special qualifications in vascular surgery,

which they claim is itself another board certification.

Because Dr. Zakharia lacks such a certification, defendant

concluded that Dr. Zakharia is disqualified from signing

the affidavit. Counsel for plaintiff responded that he had

a reasonable belief under MCL 600.2912d(1) that Dr.

Zakharia met the expert witness requirements of MCL

600.2169(1).

The trial court denied defendants’ summary disposition

motion, holding in relevant part that plaintiff’s attorney

had a reasonable belief that Dr. Zakharia met the statutory

prerequisites for an expert witness. The Court of Appeals

denied defendants’ motion for leave for an interlocutory

5

Dr. Zakharia has been practicing in the field of

vascular surgery for many years and has written articles

that have been published in numerous journals and books,

many in the area of cardiovascular and vascular medicine.

5

appeal “for failure to persuade the Court of the need for

immediate appellate review.” We granted defendants leave

for an interlocutory appeal.6

II. STANDARD OF REVIEW

We review de novo questions of statutory

interpretation. Omelenchuk v City of Warren, 466 Mich 524,

527; 647 NW2d 493 (2002). Likewise, we review de novo

decisions on summary disposition motions. American

Federation of State, Co & Municipal Employees v Detroit,

468 Mich 388, 398; 662 NW2d 695 (2003).

III. ANALYSIS

Because the issue in this case is one of statutory

interpretation, the paramount rule is that we must effect

the intent of the Legislature. In re MCI, 460 Mich 396,

411; 596 NW2d 164 (1999). Statutory language is read

according to its ordinary and generally accepted meaning.

If the statute’s language is plain and unambiguous, we

assume the Legislature intended its plain meaning;

therefore, we enforce the statute as written and follow the

plain meaning of the statutory language. Tryc v Michigan

Veterans’ Facility, 451 Mich 129, 135-136; 545 NW2d 642

(1996).

6

468 Mich 869 (2003).

6

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

7

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.

Because this case presents a dispute involving the

affidavit-of-merit stage, the issue before us is whether,

according to MCL 600.2912d(1), plaintiff’s attorney had a

“reasonable belief” that his expert satisfied the

requirements of MCL 600.2169. We hold that given the

information available to plaintiff’s attorney when he was

preparing the affidavit of merit, he had a reasonable

belief that Drs. Brown and Zakharia were both board-

certified in their specialty of general surgery and that

there was no board certification in vascular surgery.

The salient and dispositive facts are that plaintiff’s

attorney consulted the AMA website, which supplied him with

information that defendant Brown was only board-certified

8

in general surgery and that there is no vascular surgery

board certification. Further, counsel consulted Dr.

Zakharia, his expert, who reiterated that there is no

vascular surgery board certification.

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.

It may be that what satisfies the standard at this first

stage will not satisfy the requirements of MCL 600.2169 for

expert testimony at trial. This will be decided on remand.

To address this matter now, especially because there has

been no fact-finding on the disputed factual questions,

would be premature.7 It will be for the trial court, in its

role as initial interpreter of the statute and qualifier of

experts, to decide these issues as they become timely.

IV. CONCLUSION

Because plaintiff has complied with the requirements

of the affidavit-of-merit statute, MCL 600.2912d(1), we

7

Thus, we expressly do not decide the additional issue

raised by the concurring justices in this case because it

is not properly before us: whether board certifications

must match in all cases or only those in which the board

certifications are relevant to the alleged malpractice.

9

affirm the circuit court and remand this case to that court

for further proceedings.

Clifford W. Taylor

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

10

S T A T E O F M I C H I G A N

SUPREME COURT

REBECCA GROSSMAN, as Personal

Representative of the Estate of

FRED GROSSMAN, Deceased,

Plaintiff-Appellee,

v No. 122458

OTTO W. BROWN, M.D., SINAI HOSPITAL,

an assumed name of SINAI HOSPITAL OF

GREATER DETROIT, a Michigan Non-Profit

Corporation,

Defendants-Appellants.

and

ROBERT MURRAY, M.D.,

Defendant.

_______________________________

CAVANAGH, J. (concurring in the result only).

I concur with the majority that plaintiff’s counsel

had a reasonable belief that plaintiff’s expert met the

requirements for filing an affidavit of merit under MCL

600.2912d. However, I write separately because I do not

believe that MCL 600.2169 requires an expert witness to

match board certifications in all cases.1 A proper reading

1

I still strongly believe that MCL 600.2169 is

unconstitutional, as discussed in my dissent in McDougall v

Schanz, 461 Mich 15, 37-72; 597 NW2d 148 (1999).

of the statute indicates that board certifications and

specialties must match only when the board certification or

specialty is relevant to the alleged malpractice at issue.

Therefore, I concur with the result reached in this case.

Michael F. Cavanagh

Marilyn Kelly

2

S T A T E O F M I C H I G A N

SUPREME COURT

REBECCA GROSSMAN, as Personal

Representative of the Estate of

FRED GROSSMAN, deceased,

Plaintiff-Appellee,

v No. 122458

OTTO W. BROWN, M.D., SINAI HOSPITAL,

an assumed name of SINAI HOSPITAL OF

GREATER DETROIT, a Michigan non-profit

corporation,

Defendants-Appellants,

and

ROBERT MURRAY, M.D.,

Defendant.

_______________________________

WEAVER, J. (concurring in result only).

I concur with the majority only in its conclusion

that, in this case, plaintiff’s attorney had a reasonable

belief that plaintiff’s medical expert met the requirements

for filing an affidavit of merit under MCL 600.2912d. I

write separately to clarify, as I explain in my dissenting

opinion in Halloran v Bhan, Mich ; NW2d (2004)

(WEAVER, J. dissenting), that MCL 600.2169 requires that a

standard-of-care expert’s board certifications and

specialties match those of the defendant only where the

specialty or board certification is appropriate for

(correct for the purpose of explaining) the standard of

care to which the expert will be testifying in the case.

Elizabeth A. Weaver

2