By Ben Solis
Gongwer News Service
A piece of case law on standard of care requirements for expert medical witnesses was wrongly decided and must be partly overruled, the Michigan Supreme Court ruled last Thursday in a pair of medical malpractice cases.
In a 4-3 decision, the high court's majority in Stokes v. Swofford (MSC Docket No. 162302) and Selliman v. Colton (MSC Docket No. 163226) found the test evaluating specialists in malpractice cases, adopted in Woodard v. Custer – which interpreted the standard outlined in the Revised Judicature Act – was inconsistent with the language of the act.
The opinion written by Justice Elizabeth Welch noted that Woodard conflated the terms of "specialty" and "subspeciality" inconsistently, negating two provisions of the act that offer significant discretion for trial courts to exclude expert witnesses even if they qualify under statute.
"We hold that with respect to medical malpractice claims filed against physicians, the words 'specialist' and 'specialties' as used in MCL 600.2169(1) are defined as the specialties recognized by the American Board of Medical Specialties (ABMS), the American Osteopathic Association (AOA), the American Board of Physician Specialties (ABPS), or other similar nationally recognized umbrella-based physician certifying entities," Welch wrote. "Further, we hold that the 'matching' requirement under MCL 600.2169 follows the listed general board certifications, which are the baseline 'specialties' recognized by such entities for certification purposes. The statute does not require matching of subspecialties."
Welch was joined by her liberal majority colleagues Justice Richard Bernstein, Justice Megan Cavanagh and Justice Kyra Harris Bolden.
The opinion further stated that a trial court must ensure experts with matching specialties meet other criteria, and that trial courts have broad discretion to assess experts, both outlined in provisions that were negated by Woodard.
Chief Justice Elizabeth Clement wrote a dissenting opinion joined by Justice Brian Zahra and Justice David Viviano.
The malpractice cases were heard together during oral arguments late last year.
Stokes was brought to court by an estate to answer whether the physician was specialized and board certified in neuroradiology. The trial court denied a motion to confirm that, the Court of Appeals reversed, and the Supreme Court ordered oral arguments. The high court had directed the parties to brief the matter further, parsing whether certain pieces of case law were correctly decided and were interpreted correctly as it relates to that attestation.
Welch wrote that the Court of Appeals judgment was affirmed in part and reversed in part in Stokes, remanding the case to the trial court for further proceedings.
"While the Court of Appeals reached the correct result in (Stokes), it relied on Woodard. Thus, it erred by concluding that the relevant specialty was neuroradiology, and that Dr. Berger was therefore qualified because he spent a majority of his time as a neuroradiologist," Welch wrote. "Instead, Dr. Berger was qualified because the relevant specialty was diagnostic radiology, and his subspecialty of neuroradiology was subsumed within that broader specialty."
Selliman involved a defendant who filed a motion to strike testimony regarding plastic and reconstructive surgery. The Oakland Circuit Court denied the motions, the Court of Appeals reversed, but the high court had ordered oral arguments. Justices directed the parties to brief the issue further, parsing whether certain pieces of case law were correctly decided and were interpreted correctly as it relates to the testimony.
The high court in Selliman reversed the Court of Appeals and remanded the case.
"As to Selliman, the Court of Appeals held that Dr. Armstrong was not qualified to give standard of care testimony under MCL 600.2169," Welch wrote. "But it relied on Woodard when assessing the time spent by the defendant and Dr. Armstrong on both otolaryngology and facial plastic and reconstructive surgery – treating both as specialties."
Clement wrote that she disagreed with the majority on both of its conclusions, and that under the doctrine of stare decisis, Woodard should have been retained. The chief justice also would have affirmed the Court of Appeals in both cases.
"I believe Woodard correctly defined 'specialty' as including 'subspecialty' and did not effectively negate Subsections (2) and (3) of § 2169," Clement wrote. "Furthermore, I would not overrule Woodard in part, as the majority now does, due to stare decisis concerns. Woodard's rules are more administrable than those the majority now puts forward, and I therefore believe Woodard is worth keeping."
Gongwer News Service
A piece of case law on standard of care requirements for expert medical witnesses was wrongly decided and must be partly overruled, the Michigan Supreme Court ruled last Thursday in a pair of medical malpractice cases.
In a 4-3 decision, the high court's majority in Stokes v. Swofford (MSC Docket No. 162302) and Selliman v. Colton (MSC Docket No. 163226) found the test evaluating specialists in malpractice cases, adopted in Woodard v. Custer – which interpreted the standard outlined in the Revised Judicature Act – was inconsistent with the language of the act.
The opinion written by Justice Elizabeth Welch noted that Woodard conflated the terms of "specialty" and "subspeciality" inconsistently, negating two provisions of the act that offer significant discretion for trial courts to exclude expert witnesses even if they qualify under statute.
"We hold that with respect to medical malpractice claims filed against physicians, the words 'specialist' and 'specialties' as used in MCL 600.2169(1) are defined as the specialties recognized by the American Board of Medical Specialties (ABMS), the American Osteopathic Association (AOA), the American Board of Physician Specialties (ABPS), or other similar nationally recognized umbrella-based physician certifying entities," Welch wrote. "Further, we hold that the 'matching' requirement under MCL 600.2169 follows the listed general board certifications, which are the baseline 'specialties' recognized by such entities for certification purposes. The statute does not require matching of subspecialties."
Welch was joined by her liberal majority colleagues Justice Richard Bernstein, Justice Megan Cavanagh and Justice Kyra Harris Bolden.
The opinion further stated that a trial court must ensure experts with matching specialties meet other criteria, and that trial courts have broad discretion to assess experts, both outlined in provisions that were negated by Woodard.
Chief Justice Elizabeth Clement wrote a dissenting opinion joined by Justice Brian Zahra and Justice David Viviano.
The malpractice cases were heard together during oral arguments late last year.
Stokes was brought to court by an estate to answer whether the physician was specialized and board certified in neuroradiology. The trial court denied a motion to confirm that, the Court of Appeals reversed, and the Supreme Court ordered oral arguments. The high court had directed the parties to brief the matter further, parsing whether certain pieces of case law were correctly decided and were interpreted correctly as it relates to that attestation.
Welch wrote that the Court of Appeals judgment was affirmed in part and reversed in part in Stokes, remanding the case to the trial court for further proceedings.
"While the Court of Appeals reached the correct result in (Stokes), it relied on Woodard. Thus, it erred by concluding that the relevant specialty was neuroradiology, and that Dr. Berger was therefore qualified because he spent a majority of his time as a neuroradiologist," Welch wrote. "Instead, Dr. Berger was qualified because the relevant specialty was diagnostic radiology, and his subspecialty of neuroradiology was subsumed within that broader specialty."
Selliman involved a defendant who filed a motion to strike testimony regarding plastic and reconstructive surgery. The Oakland Circuit Court denied the motions, the Court of Appeals reversed, but the high court had ordered oral arguments. Justices directed the parties to brief the issue further, parsing whether certain pieces of case law were correctly decided and were interpreted correctly as it relates to the testimony.
The high court in Selliman reversed the Court of Appeals and remanded the case.
"As to Selliman, the Court of Appeals held that Dr. Armstrong was not qualified to give standard of care testimony under MCL 600.2169," Welch wrote. "But it relied on Woodard when assessing the time spent by the defendant and Dr. Armstrong on both otolaryngology and facial plastic and reconstructive surgery – treating both as specialties."
Clement wrote that she disagreed with the majority on both of its conclusions, and that under the doctrine of stare decisis, Woodard should have been retained. The chief justice also would have affirmed the Court of Appeals in both cases.
"I believe Woodard correctly defined 'specialty' as including 'subspecialty' and did not effectively negate Subsections (2) and (3) of § 2169," Clement wrote. "Furthermore, I would not overrule Woodard in part, as the majority now does, due to stare decisis concerns. Woodard's rules are more administrable than those the majority now puts forward, and I therefore believe Woodard is worth keeping."
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