Court to ponder 'speciality' aspect in med-mal case

By Kelly Caplan
BridgeTower Media Newswires
 
The Michigan Supreme Court will hear arguments in a case where the trial judge rejected a plaintiff’s attempt to confirm a doctor’s one most relevant specialty in a medical malpractice matter.

A Court of Appeals panel reversed the ruling in 2020’s Estate of Horn v. Swofford and urged the Michigan Supreme Court to provide some “much-needed clarity” in this area of law.

Linda Horn’s death allegedly was caused by Dr. Michael Swofford’s negligence when he failed to comply with the appropriate standard of care in interpreting her CT scan and communicating to other medical personnel based on that interpretation.

The estate’s personal representative, Joelynn Stokes, sued Swofford and his practice group for medical malpractice. She moved to confirm that neuroradiology was the one most relevant specialty or subspecialty.

The defendants claimed that diagnostic radiology was the one most relevant specialty. The Oakland County Circuit Court agreed and denied the plaintiff’s motion.

The Court of Appeals reversed.

“In this case, Dr. Swofford was, in fact, practicing neuroradiology when he examined and interpreted neuroimages — the CT scan of Horn’s skull — and he potentially could obtain, as he had done in the past, board certification in neuroradiology,” the court said. “And therefore Dr. Swofford was acting or practicing as a ‘specialist’ or ‘subspecialist’ in neuroradiology, at least for purposes of MCL 600.2169(1) as interpreted by Woodard [v. Custer].

Although Dr. Swofford was also practicing diagnostic radiology when he interpreted Horn’s CT scan considering that diagnostic radiologists are credentialed to interpret neuroimages, neuroradiology was the one most relevant specialty.”

Swofford and his practice group have been ordered to file a supplemental brief that addresses whether MCL 600.2169, as interpreted in the Wood­ard holding, allows “a medical malpractice plaintiff to establish the standard of care with an expert whose subspecialty focuses on the type of care at issue, but whose subspecialty is not the same specialty of the defendant health professional.”

Trio of decisions

Swofford was a board-certified diagnostic radiologist when he interpreted Horn’s cranial CT scan, but he was no longer a board-certified neuroradiologist or its equivalent, when he “engaged in interpreting” it.

A decision from 2007 — Reeves v. Carson City Hosp. (On Remand) — lent the appeals panel some guidance.

The Reeves court said if a physician was practicing a particular branch of medicine when the alleged malpractice occurred, and board certification was available for the practice of that branch of medicine, then the physician was engaged in a “specialty” for purposes of MCL 600.2169.

That means a plaintiff’s expert must have practical and/or teaching experience in that specialty.

“We see no difference in relation to the analysis if the case entails a defendant family doctor actually practicing emergency medicine or if the case regards a diagnostic radiologist actually practicing, more specifically, neuroradiology — the overlap in the latter is not a basis to jettison the principle,” the panel said.

The panel then pointed out similarities in the instant case to Higgins v. Traill, a 2019 unpublished decision.

“[T]he Higgins panel relied on Woodard and Reeves in affirming the trial court’s ruling ... Based on the facts and the case law, we conclude at this juncture that MCL 600.2169(1), as construed in Woodard, Reeves, and Higgins, supports our ruling,” the panel stated.

Concurrence

Judges Jane E. Markey, Karen M. Fort Hood and Mark T. Boonstra sat on the panel that issued the decision.

Boonstra’s concurrence encouraged the high court to offer “much-needed clarity” in this complicated area of law.

While the panel was bound by Woodard, Boonstra pointed out that it involved “no less than four opinions, including two concurring opinions (one of which was authored by the author of the four-Justice majority opinion) and a three-Justice dissent that maintained that it actually was the majority opinion (by virtue of the second concurrence).”

Also, he said, the Higgins court included a separate concurring opinion that said “Woodard’s analysis was faulty in certain respects and should be reconsidered.”

Finally, even though the high court later denied leave to appeal in Higgins, “it did so on an evenly-split 3-3 vote, with one Justice not participating. And there remains disagreement — which the Supreme Court could put to rest, one way or another — about whether its order in Estate of Jilek v. Stockson, 490 Mich 961 (2011), implicitly overruled Reeves v Carson City Hosp. (On Remand),274 Mich App 622; 736 NW2d 284 (2007),” he concluded.