Decker v. Flood
Decker v. Flood
Opinion of the Court
Plaintiffs appeal as of right the trial court’s decision to grant defendants’ motion for summary disposition and to dismiss without prejudice plaintiffs’ complaint alleging dental malpractice. We affirm.
On January 13, 1997, defendant Kevin Flood
Plaintiffs filed their complaint on June 18, 1999. Attached to the complaint was an affidavit of merit signed by Michael J. Gallagher, D.D.S. According to the affidavit, Dr. Gallagher is a “doctor of dental surgery” and a member of the American Association of Endodontists. In the affidavit, Dr. Gallagher stated that he was familiar with the standard of practice for a dental surgeon treating a patient with plaintiff’s complaints and opined that defendant breached the standard of practice by failing to properly drill, clean, fill, or pack the root canal or properly remove the tissue and filling material. Dr. Gallagher also claimed that defendant’s breach of the standard of practice was a proximate cause of plaintiff’s pain and that he, Dr. Gallagher, “had to perform a root canal retreatment” on plaintiff’s teeth to address plaintiff’s pain.
In response to defendants’ motion, plaintiffs argued that both defendant and Dr. Gallagher are general practitioners who perform root canals, with the only difference being that Dr. Gallagher performs only root canals. Plaintiffs argued that the statute “did not make sense,” because it precluded Dr. Gallagher, whose practice was limited to root canals, from giving expert testimony concerning the standard of practice for root canals. Plaintiffs further argued that the statute was intended to prevent a professional who has no experience at all in a given area from rendering an expert opinion.
The trial court rejected plaintiffs’ argument that Dr. Gallagher was a general practitioner and found that the evidence was uncontroverted that he specialized in root canals. The trial court also stated that the statute clearly precludes an expert who is not a general practitioner from giving expert testimony concerning the standard of practice required for a general practitioner. The court further noted that the Supreme
On appeal, plaintiffs argue that the trial court erred in finding that their affidavit of merit did not comply with MCL 600.2912d and in granting defendants’ motion for summary disposition. We review de novo a trial court’s decision on a motion for summary disposition. Holmes v Michigan Capital Medical Center, 242 Mich App 703, 706; 620 NW2d 319 (2000).
In this case, defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). It is not apparent from the trial court’s statements on the record or the order entered by the court whether it granted the motion under subsection C(8) or subsection C(10). However, because it is clear that the court relied on evidence outside the pleadings in order to make its determination that Dr. Gallagher did not qualify as an expert under MCL 600.2169, we review this motion under the standard for MCR 2.116(C)(10).
The issue before us in this case involves the requirements for the expert who signs the affidavit of merit that a medical malpractice plaintiff must file with the complaint pursuant to MCL 600.2912d. The statute requires that “the plaintiff in an action alleging medical malpractice . . . 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].” MCL 600.2912d(l). MCL 600.2169(1) states:
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:
* * *
(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*82 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.
The determination of this issue requires us to interpret the language of two statutes. The primary goal of statutory construction is to determine and give effect to the intent of the Legislature. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). The specific language of the statute is the first source for determining the Legislature’s intent, and when the language of the statute is unambiguous, the Legislature is presumed to have intended the meaning expressed and judicial construction is not required or permitted. In re MCI Telecommunications Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999).
Unless otherwise defined in the statute, words or phrases should be accorded their plain and ordinary meanings, and technical terms should be construed according to their peculiar meanings. MCL 8.3a; Western Michigan Univ Bd of Control v Michigan, 455 Mich 531, 539; 565 NW2d 828 (1997). Also, the reviewing court should presume that every word has some meaning and should avoid a construction that would render any part of a statute surplusage or nugatory. People v Borchard-Ruhland, 460 Mich 278, 285; 597 NW2d 1 (1999).
Here, plaintiffs claim that their expert, Dr. Gallagher, meets the qualifications of MCL 600.2169(1) because both defendant and Dr. Gallagher are general
It is apparent from plaintiffs’ admission that because Dr. Gallagher “limits his practice” to root canals, he does not meet the definition of a general practitioner and is, in fact, a specialist. Further, it was undisputed that Dr. Gallagher is an endodontist, which is defined as “one who specializes in the practice of endodontics.” Stedman’s Medical Dictionary (26th ed) (emphasis added). Applying the ordinary meaning of general practitioner as one who does not limit his practice to any particular branch of medicine, Dr. Gallagher clearly does not satisfy the requirements of MCL 600.2169 and, therefore, would not be qualified to offer expert testimony on the standard of practice of a general practitioner, such as defendant Dr. Flood. Because Dr. Gallagher is precluded by MCL 600.2169 from testifying regarding
Plaintiffs also argue that the trial court’s interpretation of the statute leads to the absurd result that a person who is eminently qualified to testify regarding the standard of practice required for performing root canals is not qualified to testify in this matter. Plaintiffs further assert that “statutes are to be construed so as to avoid absurd [sic] or unreasonableness,” citing Michigan Humane Society v Natural Resources Comm, 158 Mich App 393, 401; 404 NW2d 757 (1987). However, our Supreme Court repudiated the use of the “absurd result” rule of statutory construction in a case such as this where the language of the statute is unambiguous. People v McIntire, 461 Mich 147, 155-158; 599 NW2d 102 (1999). The Supreme Court’s decision in Mclntire precludes this Court from utilizing rules of statutory construction to impose policy choices different from those selected by the Legislature. Id. at 152. “ ‘[I]n our democracy, a legislature is free to make inefficacious or even unwise policy choices. The correction of these policy choices is not a judicial function as long as the legislative choices do not offend the constitution.’ ” Id. at 159, adopting as its own the language of Judge Young’s dissent in People v McIntire, 232 Mich App 71, 126; 591 NW2d 231 (1998). Clearly, it is not within our authority to second-guess the wisdom or reasonableness of unambiguous legislative enactments even where the literal inteipretation of the statute leads to an absurd result.
Even if this Court had the authority to construe an unambiguous statute so as to avoid an alleged absurd
Affirmed.
According to plaintiffs complaint, defendant Kevin Mood, D.D.S., P.C., is the corporate entity under which defendant Kevin Mood practiced dentistry and is vicariously liable for Mood’s alleged malpractice. For purposes of clarity, the singular term “defendant” will be used to refer to Kevin Mood, D.D.S.
Plaintiff Vicki Decker is the spouse of plaintiff Erik Decker and asserts only derivative claims. For purposes of clarity, the singular term “plaintiff” will be used to refer to Erik Decker.
According to Random, House Webster’s College Dictionary (1997), endodontics is “the branch of dentistry dealing with the prevention, diagnosis, and treatment of diseases of the dental pulp.”
The court necessarily considered the statements in plaintiffs’ affidavit of merit in making its determination whether to grant defendants’ motion for summary disposition. The affidavit, although attached to plaintiffs’ complaint, does not meet the definition of a “pleading” under the court rules. MCR 2.110(A). In addition, the transcript of the hearing regarding defendants’ motion indicates that defense counsel provided the court with documentation from an internet web site of the American Association of Endodontists that, according to defense counsel, explained “what it is to
Specialist is also defined as “[o]ne who devotes professional attention to a particular specialty or subject area” Stedman’s Medical Dictionary (26th ed).
Concurring Opinion
(concurring). I concur in affirming the trial court’s grant of summary disposition for defendants on the basis of the record in this case. I agree affirmance is the correct result, but write separately to address statutory considerations that ostensibly applied to plaintiffs’ case, but were not raised.
MCL 600.2912d(l) provides, in relevant part:
Subject to subsection (2),[2 ] the 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 section 2169 [MCL 600.2169]. [Emphasis added.]
In this case, plaintiffs’ counsel did not argue that he reasonably believed that the affidavit supplied met
Evidence of the levels of specialty and certifications with regard to the practice of dentistry was not set forth in the trial court.
No consideration was given to the fact that the standard of care required of Dr. Gallagher with regard to a root canal may in fact be the same as that for Dr. Flood despite the fact that Dr. Gallagher limits his practice to root canal surgery. Both Dr. Gallagher and Dr. Flood practice in the same local community, Grand Rapids, Michigan. In this case, the fact that Dr. Gallagher limits his practice to root canals is less likely to render him unfamiliar with the local standards applicable to a general practitioner. See Birmingham v Vance, 204 Mich App 418, 422; 516 NW2d 95 (1994) (“The standard of care for general practitioners is that of the local community or similar communities, while the standard for a specialist is nationwide.”). The extent to which these circumstances bear, if at all, on the ultimate determination of the adequacy of the affidavit of merit under the statute is open to question.
This Court has previously addressed the fading logic in standard of care distinctions between general practitioners and specialists in cases such as this, where there is an overlap between the procedures performed by general practitioners and those who have specialized practices. Id. at 424-427. I concur with the well-reasoned opinion in Vance, in which Chief Judge Doctoroff stressed the need for further consideration and modification of standard of care requirements in view of the prolific advancements in communication and technology in recent years. Id., citing Siirila v Barrios, 398 Mich 576; 248 NW2d 171 (1976), opinion by Williams, J. Today’s communication and technology capabilities render meaningless any distinction in the standard of care “where a general
Counsel’s failure to raise these arguments before the trial court precludes our consideration of these arguments on appeal. See People v Carines, 460 Mich 750, 761-762, n 7; 597 NW2d 130 (1999); Fast Air, Inc v Knight, 235 Mich App 541, 549; 599 NW2d 489 (1999).
The exception of subsection 2 pertains to access to medical records and does not apply in this case. See MCL 600.2912d(2).
Plaintiffs’ counsel stated during oral argument that he was not aware of board certification for endodontists or whether it is similar to board certification in other areas of the medical field. It was defense counsel’s contention that two to three years’ additional training was required to specialize as an endodontist, according to information defense counsel obtained from the web site of the American Association of Endodontists.
Plaintiffs’ brief on appeal, however, calls this assertion into question, in stating: “Dr. Gallagher has additional training and is certified as an endodontist. Dr. Flood is not.”
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