Estate of Lamarr Green v. Bashar Yaldo Md

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

ESTATE OF LAMARR GREEN, by JULIE UNPUBLISHED

BRESKO, Personal Representative, May 25, 2023

Plaintiff-Appellee,

v No. 357931

Oakland Circuit Court

BASHAR YALDO, M.D., LC No. 2020-179077-NH

Defendant,

and

SHAHRZAD ABBASSI-RAHBAR and ST.

JOSEPH MERCY-OAKLAND,

Defendants-Appellants.

Before: CAVANAGH, P.J., and K. F. KELLY and GARRETT, JJ.

PER CURIAM.

Defendants Shahrzad Abbassi-Rahbar (Dr. Abbassi) and St. Joseph Mercy-Oakland (St.

Joseph) appeal by leave granted1 the order of the trial court denying their motion for summary

disposition under MCR 2.116(C)(10). Because we agree that plaintiff’s expert witness was not

qualified to testify against Dr. Abbassi, we reverse the trial court’s order as it relates to that issue.

In all other respects, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

The decedent, LaMarr Green, was referred to defendant Bashar Yaldo, M.D., a board-

certified general surgeon, for treatment of a bilateral inguinal hernia in 2017. Dr. Yaldo performed

1

Estate of Green v Yaldo, unpublished order of the Court of Appeals, entered December 1, 2021

(Docket No. 357931).

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a robotic bilateral inguinal hernia repair at St. Joseph on February 2, 2018, and Green was

discharged the same day. On the evening of February 5, 2018, Green returned to St. Joseph’s with

complaints of abdominal pain. He also reported throat discomfort, his recent hernia surgery, and

a lack of bowel movements for four to five days. An x-ray revealed a possible early or partial

small bowel obstruction, and Green was admitted to the hospital. Despite limited periods of

improvement, Green’s condition deteriorated and he passed away approximately two weeks later.

Plaintiff initiated this action alleging medical malpractice by Dr. Yaldo and Dr. Abbassi,

who was then a resident in St. Joseph’s general surgery program and participated in Green’s

treatment as part of the surgical critical care team. St. Joseph was named as a defendant because

it “affirmatively held itself out as the employer of, and responsible for the acts or non-actions of”

Dr. Yaldo and Dr. Abbassi.

Defendants moved for summary disposition under MCR 2.116(C)(10), first arguing that

St. Joseph could not be held vicariously liable because Dr. Yaldo was an independent contractor,

and plaintiff did not have any evidence supporting an ostensible agency theory. Defendants also

sought summary disposition of claims related to Dr. Abbassi’s treatment because plaintiff’s

proposed expert, Dr. Jason Nirgiotis, was not qualified to testify regarding Dr. Abbassi’s specialty.

The trial court denied defendants’ motion, reasoning that questions of fact existed regarding Dr.

Yaldo’s ostensible agency and Dr. Abbassi’s specialty. This appeal followed.

II. STANDARD OF REVIEW

We review a trial court’s ruling decision on a motion for summary disposition de novo.

El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the

complaint. In evaluating a motion for summary disposition brought under this

subsection, a trial court considers affidavits, pleadings, depositions, admissions,

and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most

favorable to the party opposing the motion. Where the proffered evidence fails to

establish a genuine issue regarding any material fact, the moving party is entitled

to judgment as a matter of law. [Trueblood Estate v P&G Apartments, LLC, 327

Mich App 275, 284; 933 NW2d 732 (2019), quoting Maiden v Rozwood, 461 Mich

109, 120; 597 NW2d 817 (1999).]

“A genuine issue of material fact exists when the record leaves open an issue upon which

reasonable minds might differ.” El-Khalil, 504 Mich at 160 (quotation marks and citation

omitted).

III. OSTENSIBLE AGENCY

Defendants argue the trial court erred when it denied summary disposition in their favor

regarding the claims arising from Dr. Yaldo’s treatment because Green and Dr. Yaldo had a

physician-patient relationship before Green’s February 5, 2018 hospitalization, which precluded a

finding of ostensible agency. Defendants also assert that plaintiff failed to present evidence

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demonstrating that Green formed a reasonable belief regarding Dr. Yaldo’s agency or that St.

Joseph did anything to hold out Dr. Yaldo as its agent. We disagree.

“Generally, Michigan law will impose liability upon a defendant only for his or her own

acts of negligence, not the tortious conduct of others.” Laster v Henry Ford Health Sys, 316 Mich

App 726, 734; 892 NW2d 442 (2016). But in a medical malpractice action, a hospital can be held

liable for the negligence of its employees under a theory of respondeat superior or its independent

contractors under an ostensible agency theory. See id. at 734-737.

In Grewe v Mt Clemens Gen Hosp, 404 Mich 240, 253-255; 273 NW2d 429 (1978), the

Michigan Supreme Court concluded that the jury in that case was free to find the defendant hospital

liable for the conduct of an independent contractor because the plaintiff looked to the hospital for

treatment, there was no evidence of a preexisting relationship between the plaintiff and those who

treated him, nor was there record evidence that would have put the plaintiff on notice that the

independent contractor at issue was not an employee of the hospital. The Court observed:

Generally speaking, a hospital is not vicariously liable for the negligence of

a physician who is an independent contractor and merely uses the hospital’s

facilities to render treatment to his patients. However, if the individual looked to

the hospital to provide him with medical treatment and there has been a

representation by the hospital that medical treatment would be afforded by

physicians working therein, an agency by estoppel can be found.

In our view, the critical question is whether the plaintiff, at the time of his

admission to the hospital, was looking to the hospital for treatment of his physical

ailments or merely viewed the hospital as the situs where his physician would treat

him for his problems. A relevant factor in this determination involves resolution

of the question of whether the hospital provided the plaintiff with [the independent

contractor] or whether the plaintiff and [the independent contractor] had a patient-

physician relationship independent of the hospital setting. [Grewe, 404 Mich at

250-251 (citations omitted).]

The Court then considered caselaw from other jurisdictions, noting a California appellate

court’s articulation of three elements required for a finding of ostensible agency particularly useful:

(1) the patient must have a reasonable belief regarding the ostensible agent’s authority; (2) that

belief must be generated by an act or neglect by the alleged principal; and (3) the patient relying

on the ostensible agency is not guilty of negligence. Id. at 252-253, citing Stanhope v Los Angeles

College of Chiropractic, 54 Cal App 2d 141 (1942).

This Court later held that the three-part test cited in Grewe identified the controlling

elements for establishing ostensible agency. See Chapa v St Mary’s Hosp of Saginaw, 192 Mich

App 29, 33-34; 480 NW2d 590 (1991). In Chapa, we also clarified that, despite the Michigan

Supreme Court’s initial reference to a “critical question,” Grewe did not establish a rule of

vicarious liability “merely because the patient ‘looked to’ the hospital at the time of

admission . . . .” Id. at 32-33. The Chapa Court viewed Grewe’s “critical question” as reflective

of the case-specific facts at issue in Grewe, wherein the plaintiff was improperly treated by two

on-call physicians with whom he had no previous relationship. Id. at 32. In contrast, the plaintiff

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in Chapa went to a hospital emergency room and initially received treatment from an on-call

physician, but his inpatient care was entrusted to his family physician the next day. Id. at 30-31.

The negligent acts were committed by the family physician and his associate several days later.

Id. at 31, 33. The evidence was unclear as to whether the family doctor took over at the urging of

the plaintiff’s family or whether the doctor was provided by the hospital. Id. at 31, 33, 36. Under

these circumstances, there was a question of fact regarding the existence of ostensible agency. See

id. at 34 (affirming denial of summary disposition and motion for directed verdict).

As the we emphasized in Chapa, Grewe instructs that courts must focus on “[t]he

reasonableness of the patient’s belief in light of the representations and actions of the

hospital . . . .” Id. at 34. However, “an independent relationship between a doctor and a patient

that preceded a patient’s admission to a hospital precludes a finding of ostensible agency, unless

the acts or omissions of the hospital override the impressions created by the preexisting

relationship and create a reasonable belief that the doctor is an agent of the hospital.” Zdrojewski

v Murphy, 254 Mich App 50, 66; 657 NW2d 721 (2002).

Here, Green was referred to Dr. Yaldo by another physician for treatment of his bilateral

inguinal hernia, and Dr. Yaldo performed a robotic repair of the hernia on February 2, 2018, at St.

Joseph. Thus, it is undisputed that Green had a physician-patient relationship with Dr. Yaldo

before his admission to St. Joseph on February 5, 2018. The question is, therefore, whether St.

Joseph’s acts or omissions during Green’s subsequent admission could result in ostensible agency,

despite the preexisting relationship. Id.; see also Chapa, 192 Mich App at 33-34 (noting elements

of ostensible agency).

The trial court did not err by concluding that the issue of ostensible agency presented a

question of fact that precluded summary disposition. Although Green and Dr. Yaldo had an

established relationship that predated Green’s February 5, 2018 admission, there is no evidence

that he sought treatment from Dr. Yaldo specifically any time after the February 2, 2018 surgery.

Green presented to the St. Joseph emergency department three days after his surgery with

complaints of abdominal pain, throat discomfort, and a lack of bowel movements for several days.

He reported his recent hernia surgery during the admission process, but his medical records provide

no indication that he attributed his symptoms to a postsurgical complication or that he asked to be

seen by Dr. Yaldo. To the contrary, the records reflect Green’s partner reported that “everything

went well with this surgery and immediately post-op,” until Green began vomiting the day after

the surgery. Green’s partner opined that Green was suffering from food poisoning and decided to

take Green to the hospital at the recommendation of Green’s primary care physician. Dr. Yaldo

was later informed of Green’s admission by a St. Joseph resident. Dr. Yaldo took part in Green’s

treatment thereafter and was designated within St. Joseph’s medical records as Green’s attending

physician.

Viewing the evidence in the light most favorable to plaintiff, reasonable minds could

disagree about the existence of ostensible agency. On one hand, Dr. Yaldo’s status as Green’s

initial surgeon is strong evidence that Green should have viewed Dr. Yaldo as his own physician,

rather than an agent of St. Joseph. On the other hand, the record suggests that Green and his partner

did not think his symptoms were related to the surgery and they went to St. Joseph on the advice

of Green’s primary care physician—not because that was where the surgery was performed or

because Green expected Dr. Yaldo would be at St. Joseph. Combined with the absence of any

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indication that Green or his family sought Dr. Yaldo’s involvement in Green’s care, a fact-finder

could determine that Green had a reasonable belief that Dr. Yaldo was acting as St. Joseph’s agent.

The fact that Dr. Yaldo’s postsurgical involvement in the case was instigated by a St. Joseph

resident alerting Dr. Yaldo to Green’s hospitalization is significant and could be accepted as

evidence supporting the second element of ostensible agency.

Defendant asserts that the Michigan’s Supreme Court’s recent order in Markel v William

Beaumont Hosp, ___ Mich ___; ___ NW2d ___ (2022), mandates reversal because, according to

defendant, the Supreme Court held in that case where there is a preexisting relationship between

the doctor and the plaintiff, ostensible agency cannot be present. We disagree that Markel stands

for such a proposition. In Markel, the Supreme Court reversed this Court’s opinion concluding

we applied the wrong standard regarding ostensible agency under Grewe when we determined the

plaintiff’s belief that the doctor was an agent of the hospital was unreasonable because the plaintiff

could not remember which doctor treated her. The Supreme Court found this to be an improper

application of the case’s holding because under Grewe, “the patient’s belief that a doctor is the

hospital’s agent is reasonable unless dispelled in some manner by the hospital or the treating

physician.” Markel, ___ Mich at ___. Thus, the issue in Markel was not whether there was a

preexisting relationship between the plaintiff and doctor, but rather whether the hospital did

anything to dispel the plaintiff’s reasonable belief that the doctor was not its agent. We decline to

read Markel more broadly than this.

Accordingly, the trial court did not err when it concluded that the issue of ostensible agency

presented a genuine issue of material fact, and we affirm the trial court’s order in that regard.

IV. EXPERT QUALIFICATION UNDER MCL 600.2169

Next, defendants assert that plaintiff’s standard-of-care expert was not qualified to testify

against Dr. Abbassi. Defendants also contend that plaintiff was unable to establish a material

question of fact regrading the standard of care applicable to Dr. Abbassi or her breach of it. We

agree.2

A medical malpractice claim must generally be supported by expert testimony regarding

the applicable standard of care and the defendant’s breach of that standard. Elher v Misra, 499

Mich 11, 21; 878 NW2d 790 (2016). MCL 600.2169(1) outlines the requirements a proposed

expert must meet to be qualified to provide standard-of-care testimony in a medical malpractice

action. Rock v Crocker, 499 Mich 247, 260; 884 NW2d 227 (2016). In pertinent part, the statute

provides that the expert must be a licensed health professional meeting 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

2

Because we agree that Dr. Nirgiotis did not satisfy the statutory criteria for qualification of an

expert witness in a medical malpractice action, it is unnecessary for us to determine whether his

opinions were sufficient to establish that Dr. Abbassi breached the standard of care.

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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. [MCL 600.2169(1)(a) through (c)(ii).]

“[T]he 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.” Woodard v Custer, 476 Mich 545, 560; 719 NW2d

842 (2006). A specialist is “somebody who can potentially become board certified,” though board

certification was not required to be deemed a specialist, while a “specialty” refers to “a particular

branch of medicine or surgery in which one can potentially become board certified.” Id. at 560-

561. And if the defendant physician specializes in a subspecialty, so too must the proposed expert

in order to satisfy the “same specialty” requirement in MCL 600.2169(1)(a). Id. at 562.

In Reeves v Carson City Hosp (On Remand), 274 Mich App 622, 623; 736 NW2d 284

(2007), the plaintiffs sued a physician who treated the plaintiff patient in an emergency room

setting. Although the defendant held a board certification in family medicine, the plaintiffs relied

on an expert who was board-certified in emergency medicine. Id. The plaintiffs reasoned that

their expert was qualified because the defendant was practicing emergency medicine at the relevant

time, rendering her family medicine credentials irrelevant. Id. at 624. We agreed, noting that the

defendant was practicing outside the field of her board certification at the time of the alleged

malpractice, and the pertinent specialty was dictated by “the specialty engaged in by the defendant

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physician during the course of the alleged malpractice . . . .” Id. at 628 (quotation marks and

citation omitted). Because the defendant was practicing emergency medicine at the time of the

alleged malpractice and could potentially become board-certified in that specialty, this Court held

that she was a specialist in emergency medicine and that the plaintiff’s expert must also be a

specialist in emergency medicine to satisfy MCL 600.2169. Reeves, 274 Mich App at 630.

In Gonzalez v St John Hosp & Med Ctr (On Reconsideration), 275 Mich App 290; 739

NW2d 392 (2007), this Court considered how the same specialty requirement applied to a resident.

We noted that the definition of a specialist identified by the Michigan Supreme Court in Woodard

referred to a physician, “which necessarily includes those physicians who are also residents.” Id.

at 298. Consequently, we held that “those physicians who are residents and limit their training to

a particular branch of medicine or surgery and who can potentially become board-certified in that

specialty are specialists for purposes of the analysis under MCL 600.2169(1).” Id. at 299.

Summarizing the foregoing, the Gonzalez Court explained:

Essentially, one must look to the area of practice the plaintiff challenges in

order to determine who has the capacity to offer an opinion regarding standard of

care. There are three possibilities. First, if the area of practice being challenged is

general practice and is not a specialty, then the plaintiff must offer qualifying

testimony from a qualified general practitioner practicing in general practice

pursuant to MCL 600.2169(1)(c). Second, if the area of practice being challenged

is a specialty and the defendant physician is board-certified in the specialty that is

being challenged, then MCL 600.2169(1)(a) is implicated and the plaintiff must

offer qualifying testimony from a qualified practitioner who is also board-certified

in the challenged area of practice.

The third situation is not as straightforward as the first two. It is a hybrid

situation that is presented if the defendant physician is not board-certified in the

challenged area of practice but is practicing within a specialty. This situation

existed in Reeves, supra, where the area of practice being challenged was

emergency medicine and the defendant physician was not board-certified in

emergency medicine. Reeves, supra at 623. The situation is also present in the

instant case where the area of practice plaintiff challenges is general surgery and

defendant physician is not board-certified in general surgery. The fact that the

defendant physician in Reeves was board-certified in family medicine and

defendant physician here is not board-certified in any specialty is made moot by the

Woodard’s [sic] Court’s explicit definition of a “specialist” as “ somebody who can

potentially become board certified.” Woodard, supra at 561-562. Because [the

defendant resident] clearly meets Woodard’s definition of “specialist,” he does not

fall under MCL 600.2169(1)(c), but rather MCL 600.2169(1)(a). Hence, for

purposes of a matching specialty analysis as required by MCL 600.2169(1)(a) and

Tate, supra, there is no difference between a defendant physician who is board-

certified in a specialty but is practicing outside that specialty at the time of the

alleged malpractice and a physician, like [the defendant resident], “who can

potentially become board certified” and is practicing in a specialty but is not board-

certified in that specialty. [Id. at 302-303.]

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Here, Dr. Abbassi was a resident in St. Joseph’s general surgery program. But during the

period of Green’s hospitalization, Dr. Abbassi was in the midst of a short-term rotation in the

surgical critical care service—a requirement of the general surgery program—and her involvement

in Green’s care was strictly in that capacity. General surgery and surgical critical care are distinct

specialties for purposes of MCL 600.2169(1) because they are “particular branch[es] of medicine

or surgery in which one can potentially become board certified.” Woodard, 476 Mich at 561

(emphasis added).

Under Reeves, the fact that Dr. Abbassi was not actually pursuing board certification in

surgical critical care is irrelevant because it is a specialty in which Dr. Abbassi could potentially

obtain a board certification, as well as the specialty in which Dr. Abbassi was practicing at the

time of the occurrence. See Reeves, 274 Mich App at 629-630. Nor is her status as a resident

relevant, as a specialist need not be board-certified. See Woodard, 476 Mich at 561; Gonzalez,

275 Mich App at 298-299. Thus, the trial court erred when it denied defendant’s motion for

summary disposition as to those claims arising from Dr. Abbassi’s treatment on the basis of

evidence indicating that Dr. Abbassi practiced in both surgical critical care and general surgery.

Woodard, Gonzalez, and Reeves compel the conclusion that Dr. Abbassi was a specialist practicing

in surgical critical care at the time of the alleged malpractice. Dr. Nirgiotis was not a specialist in

surgical critical care and was, therefore, not qualified under MCL 600.2169(1)(a) to testify about

the standard of care applicable to Dr. Abbassi. And because plaintiff did not have an expert who

met the requirements of MCL 600.2169(1)(a) relative to Dr. Abbassi, the trial court should have

granted summary disposition in favor of defendants with respect to claims arising from her

treatment.

Moreover, even if Dr. Abbassi were a general surgery specialist, Dr. Nirgiotis similarly

was not qualified to testify regarding that specialty. Dr. Nirgiotis is board-certified in general

surgery and has a special certificate of qualification in the subspecialty of pediatric surgery.3 His

affidavit of merit indicated that he spent the majority of his professional time “in the active clinical

practice and/or instruction of general surgery” in the year preceding the events at issue in this case.

Yet his deposition testimony suggests otherwise. Dr. Nirgiotis testified that he was employed as

an associate professor in the pediatric department of Texas Tech University Health Sciences

Center, rather than the general surgery department. He agreed that the majority of his professional

time was spent treating pediatric patients, that more than half of his patients had yet to reach

puberty, and at least 90% to 95% of his patients were under the age of 18. He opined, however,

that the difference between a pediatric and adult patient was a matter of semantics.

In addition to the “same specialty” requirements of MCL 600.2169(1)(a),

MCL 600.2169(1)(b) provides that if the defendant physician is a specialist,

the expert witness must have “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 . . . the active clinical practice of that specialty

3

A certificate of special qualification qualifies as board certification for purposes of MCL

600.2169(1)(a). Woodard, 476 Mich at 565.

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[or][t]he instruction of students in an . . . accredited health professional school or

accredited residency or clinical research program in the same specialty.”

[Woodard, 476 Mich at 565 (alterations in original).]

In Hamilton v Kuligowski, the companion case to Woodard, the defendant was a board-

certified specialist in general internal medicine. Id. at 556. The plaintiff’s expert possessed the

same board certification, but devoted “a majority of his professional time to treating infectious

diseases, a subspecialty of internal medicine.” Id. Because the expert did not practice or teach

general internal medicine during the relevant time frame, the Court concluded that he was not a

qualified expert under MCL 600.2169(1)(b). Id. at 578. The same is true here. While Dr. Nirgiotis

may be a specialist in general surgery for purposes of MCL 600.2169(1)(a), he spent the majority

of his time practicing or teaching pediatric surgery, rather than general surgery. As such, he did

not meet the statutory “same practice or instruction” requirement to provide expert testimony

concerning general surgery. MCL 600.2169(1)(b).

Dr. Nirgiotis’s opinion that the distinction between the two fields amounts to nothing more

than semantics is unpersuasive. Even if we accepted Dr. Nirgiotis’s position as true from a medical

perspective, in the legal sense a specialty refers to “a particular branch of medicine or surgery in

which one can potentially become board certified.” Woodard, 476 Mich at 561. A physician can

obtain a certificate of special qualification in pediatric surgery as a subspecialty of general surgery,

and “[a] subspecialty, although a more particularized specialty, is nevertheless a specialty.” Id.

at 562. Because Dr. Nirgiotis spent the majority of his professional time practicing or teaching the

legally distinct specialty of pediatric surgery, he could not provide expert testimony regarding the

standard of practice or care in general surgery. MCL 600.2169(1)(b); Woodard, 476 Mich at 578.

It was error, therefore, for the trial court to deny summary disposition without considering this

challenge to Dr. Nirgiotis’s qualifications.

Plaintiff argues that if this Court determines Dr. Nirgiotis is not qualified to testify at trial,

the appropriate remedy is not summary disposition, but rather allowing plaintiff to obtain a new

expert. Plaintiff contends that allowing the case to continue with a new expert is consistent with

the statutory construct and intent of MCL 600.2912d,4 which requires a complaint to be

accompanied by 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].”

Plaintiff’s position is unpersuasive because MCL 600.2912d is inapplicable in these

circumstances.

“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.” Grossman v Brown, 470 Mich 593, 598; 685 NW2d 198 (2004). During the

first stage, the Legislature established a more flexible reasonable-belief standard in recognition of

the fact that the plaintiff’s available information is limited before legal proceedings are

commenced. Id. at 598-599. But by the time of trial, the rationale for such flexibility is eliminated

4

In plaintiff’s brief, she cites to MCL 600.2912e, which governs the requirements for a defendant’s

affidavit of meritorious defense. We presume plaintiff intended to cite MCL 600.2912d.

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by the pretrial discovery process. Id. at 599. Consequently, while a reasonable belief regarding

an expert’s qualification will suffice at the affidavit-of-merit stage, MCL 600.2169(1)

unambiguously precludes testimony from an expert who does not satisfy the statutory qualification

criteria. Id.

Plaintiff’s complaint was filed in January 2020, and the initial scheduling order

contemplated that all experts be named by December 2020, completion of discovery by January

2021, and trial in May 2021. The scheduling order dates were amended twice, extending the time

for naming experts to March 2021, completion of discovery to April 2021, and trial to September

2021. Hospital defendants’ dispositive motion was heard in July 2021, when the case had been

pending for more than a year and less than three months remained before trial. Defendants’ motion

was not a challenge to plaintiff’s affidavit of merit, but rather plaintiff’s anticipated trial proofs.

At this stage, a reasonable belief regarding Dr. Nirgiotis’s qualifications was no longer sufficient

to avoid dismissal. See Grossman, 470 Mich at 599 (explaining that counsel’s reasonable belief

regarding an expert’s qualification does not control whether the expert can testify at trial).

We affirm the trial court’s order denying defendants’ motion to the extent it denied

summary disposition on the basis of a question of fact regarding ostensible agency. However,

because plaintiff’s standard-of-care expert was not qualified to testify against Dr. Abbassi, we

reverse the trial court’s order as it relates to claims arising from Dr. Abbassi’s treatment and

remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. Neither

party having fully prevailed, no costs may be taxed.

/s/ Mark J. Cavanagh

/s/ Kirsten Frank Kelly

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