# Brown v. Hayes

> Michigan Court of Appeals · June 12, 2006 · 270 Mich. App. 491

URL: https://www.frixlaw.com/law-library/cases/9849782

## Case

- **Full name:** Brown v. Hayes
- **Court:** Michigan Court of Appeals
- **Decided:** June 12, 2006
- **Citations:** 270 Mich. App. 491; 716 N.W.2d 13
- **Precedential status:** Published
- **Opinion:** Concurring in part by White
- **Judges:** Bandstra, Fitzgerald, White
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed in part, on other grounds by Brown v. Hayes, 477 Mich. 966 (2006).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9849782

## Opinion text

WHITE, J.
{concurring in part and dissenting in part). I agree that defendants’ counsel reasonably believed that the physical therapist expert complied with the requirements of MCL 600.2169 and that reversal is warranted on that basis.
*505 I do not agree that the expert, in fact, met the requirements of § 2169(l)(b) or that McElhaney v Harper-Hutzel Hosp, 269 Mich App 488 ; 711 NW2d 795 (2006), was wrongly decided in this regard.
The physical therapist expert was not in the “active clinical practice of the same health profession in which the [defendant occupational therapist] is licensed . ...” MCL 600.2169(l)(b)(i). Although there is apparently considerable overlap in the activities of a physical therapist and an occupational therapist, they are not in the practice of the same health care profession because each is in the practice of the health profession in which he or she is licensed or registered. MCL 333.16105 contemplates that the “vocation, calling, occupation, or employment performed” is one that is subject to licensure or registration. Work-hardening therapy is not such an activity. Further, § 2169(l)(b)(i) and (ii) contemplate that the witness practice in the same health profession “in which [the defendant] is licensed. ...” Here, defendant is licensed as an occupational therapist, not a work-hardening therapist. While members of different health professions no doubt often have the knowledge and expertise to render opinions regarding the standard of care applicable to colleagues in different health professions with whom they work, § 2169(l)(b) renders such testimony inadmissible. McElhaney was correctly decided in this regard.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9849782. Public record. Not legal advice.