Brown v. Hayes
Brown v. Hayes
Opinion of the Court
In this medical malpractice action, defendants
FACTS AND PROCEEDINGS BELOW
This case arises from work-hardening therapy plaintiff underwent with defendant occupational therapists Amy S. Hayes and LeAnn G. Witgen at the Work Improvement Rehabilitation Center (WIC) at Ingham Regional Medical Center. Following carpal tunnel surgery on both of her wrists, plaintiff was referred to the WIC. She alleges that she was directed by defendants to push an 800 pound cart, which resulted in the onset of extreme back pain. Plaintiff asserts that as a result of this injury, she had to undergo corrective care and treatment, including surgery, and that she has been unable to return to work.
Plaintiff filed this medical malpractice action on May 11, 2001. Plaintiffs complaint was accompanied by two
On May 3, 2004, plaintiff moved for a default against defendants, asserting that defendants’ affidavit of meritorious defense was insufficient under § 2169 because it was not signed by an occupational therapist. Defendants argued in response that § 2169(1) was inapplicable to plaintiffs claims against defendants because occupational therapists are not licensed medical practitioners. Defendants further argued that, even if the affidavit were improper, default was inappropriate pursuant to § 2912e(l) because defense counsel reasonably believed that the affidavit was sufficient. Further, even if those arguments were rejected, defendants argued that default was not a mandatory remedy under applicable case law. The trial court conducted an extensive hearing on the motion, including taking testimony from defense counsel. In addition to the arguments raised earlier, defendants asserted that, although § 2169(1) was inapplicable to this case, § 2169(2) was applicable and that Smith met its requirements. The trial court granted plaintiffs motion for default, rejecting all of defendants’ arguments.
STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision regarding a motion to strike a pleading. Belle Isle Grill Corp v Detroit, 256 Mich App 463, 469; 666 NW2d 271 (2003). We also review for an abuse of discretion a trial court’s decision to enter a default. ISB Sales Co v Dave’s Cakes, 258 Mich App 520, 526; 672 NW2d 181 (2003). We also review for an abuse of discretion a trial court’s decision concerning whether a
We review de novo questions of statutory interpretation. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 16; 651 NW2d 356 (2002). Our primary goal is to ascertain and give effect to the intent of the Legislature. Barrett v Kirtland Community College, 245 Mich App 306, 313; 628 NW2d 63 (2001). We may not speculate about the probable intent of the Legislature beyond the words expressed in the statute, and, if a statute provides its own glossary, the terms must be applied as expressly defined. Id. at 313-314.
ANALYSIS
The RJA provides that in an action alleging medical malpractice, a defendant or the defendant’s attorney shall file “an affidavit of meritorious defense signed by a health professional who the defendants’ attorney reasonably believes meets the requirements for an expert witness under section 2169.” MCL 600.2912e(l). At issue in this case is § 2169(1),
*496 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:
(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 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*497 party against whom or on whose behalf the testimony is offered is licensed [MCL 600.2169(1).]
Initially, we note that § 2169(1) is stated in negative terms; it specifies when “a person shall not give expert testimony. .. .” The requirements necessary to avoid that prohibition are two-fold: a person may be qualified as an expert if (1) the person is “licensed as a health professional” and (2) if the criteria listed in subsections a, b, and c are satisfied. We examine each of those requirements separately.
1. LICENSED AS A HEALTH PROFESSIONAL
Defendants argue that the statute’s “licensed as a health professional” requirement means that only persons who have a “license,” such as physical therapists, may qualify as experts, and that persons who are only registered may not. Defendants’ argument in this regard certainly has facial validity and comports with usual principles of statutory construction requiring that we discern and give effect to the Legislature’s intent as expressed in statutory language, giving statutory terms their plain and ordinary meaning. Cox, supra at 18.
However, that approach only applies to “[u]ndefined statutory terms.” Id. In other words, if the Legislature uses terms for which the statutes supply definitions, those statutory definitions are the best indicators of legislative intent and should be used even if they appear contrary to the plain and ordinary meaning of statutory terminology.
The statutory definitions applicable in this case are found in the Public Health Code.
Because occupational therapists cannot call themselves occupational therapists or use a similar title without being registered, registration constitutes a “license” within the meaning of that term as defined by the statute. We thus reject defendants’ argument that only a physical therapist, and not an occupational therapist, may be qualified to give expert testimony under § 2169(1). A physical therapist is certainly “licensed,” MCL 333.17801 through MCL 333.17822, but so is an occupational therapist.
Initially, we find guidance in Cox, in which our Supreme Court considered § 2912a of the RJA, MCL 600.2912a, a statute establishing the standard of care for malpractice actions. Our Supreme Court noted that, under MCL 333.17001(l)(c), a “physician” is defined to be “an individual licensed under this article to engage in the practice of medicine.” Cox, supra at 19. The trial court had concluded that only such a “physician” can be considered either a “general practitioner” or a “specialist” for purposes of § 2912a. Cox, supra at 18-19. Thus, our Supreme Court concluded that the standard of care provisions within § 2912a do not apply to a nurse because § 2912a applies only to a defendant who is either a “general practitioner” or a “specialist” and because a nurse is neither. Cox, supra at 19-20. To determine the applicable standard of care for nurses, it was necessary to turn to the common law. Id. at 20.
Like § 2912a of the RJA construed in Cox, the above-quoted subsections a and c of § 2169(1) of the RJA at issue here employ the terms “specialist” and “general practitioner.” Specifically, an expert seeking to testify for or against a defendant in a medical malpractice action must meet certain criteria if the defendant is a “specialist,” § 2169(l)(a), and different criteria if the defendant is a “general practitioner,” § 2169(l)(c). Under Cox, neither of these sets of criteria can be satisfied unless the defendant is a physician.
This same analysis does not apply to § 2169(l)(b) because it is not exclusively
Thus, contrary to defendants’ argument that § 2169(1) is wholly inapplicable here, subsection b applies even though defendants are not physicians. McElhaney, supra at 497. We turn to the question presented by the parties regarding that subsection, whether Smith is engaged in the “same health profession” as defendants.
The record here amply demonstrates that defendants, as registered occupational therapists, and Smith, as a licensed physical therapist, are engaged in the same “vocation, calling, occupation, or employment,” i.e., work-hardening therapy. Smith’s uncontested affidavit states that both occupational therapists and physical therapists receive training in work-hardening techniques, that they often work side by side in work-hardening therapy programs, and that there is no difference between the work
Thus, we would conclude that Smith is engaged in the “same health profession” as defendants under § 2169(l)(b).
The panel reached that result even though it recognized that “it may appear reasonable that a physician
Nonetheless, we must follow McElhaney. MCR 7.215(J)(1). Therefore, we conclude that Smith is not engaged in the “same health profession” as defendants and is, therefore, not qualified to give expert testimony under § 2169(l)(b).
Nevertheless, we conclude that the trial court erred in deciding that defendants’ counsel filed Smith’s affidavit of meritorious defense without any reasonable belief that she met the requirements of § 2169. Whether defense counsel acted reasonably in this regard is determined by examining the situation as it existed at the time the affidavit was filed. McElhaney, supra at 495-496. The record in this case demonstrates that
The trial court’s erroneous decision on the “reasonable belief” question was the basis for its further decision to enter a default judgment against defendant. We reverse that decision and remand this matter for further proceedings consistent with this opinion. We do not retain jurisdiction.
Plaintiffs’ complaint alleges that defendants Amy S. Hayes and LeAnn G. Witgen engaged in malpractice and that defendants Ingham Regional Medical Center and its Work Improvement Rehabilitation Center are vicariously hable for that malpractice. Accordingly, further references to “defendants” in this opinion refer to Hayes and Witgen.
Plaintiff Donald Brown was dismissed by stipulation of the parties. Further references to “plaintiff” in this opinion refer to Jocelyn Brown.
All the statutory provisions at issue in this appeal are part of the RJA.
The trial court apparently based its decision on both subsections 1 and 2 of § 2169. However, the reasoning of the trial court was that Smith did not qualify because she is a physical therapist and defendants are occupational therapists. That analysis is based on the “match” requirements of subsection 1. The more general language of subsection 2 cannot justify disqualifying an expert simply because the expert’s credentials do not sufficiently match those of the defendant health professional if the criteria listed in subsection 1 do not lead to that result.
We employ Public Health Code definitions to determine the questions raised under the RJA here, following the approach taken by the Supreme Court in Cox. There, the majority relied on Public Health Code defini
Although § 2169 of the RJA contains no definitional provisions, the definition provided in § 5838a(l)(b) of the RJA, MCL 600.5838a(l)(b), which pertains to the accrual of medical malpractice claims, supports our analysis. Section 5838a(l)(b) defines a “licensed health care professional” to include “an individual licensed or registered under . .. the public health code....” That section specifically exempts sanitarians and veterinarians from the application of § 5838a(l), even though sanitarians may be registered, MCL 333.18401 et seq., and veterinarians are licensed, MCL 333.18801 et seq.
The Cox definitions of “specialist” and “general practitioner,” which limit their applicability to physicians, control for all uses of those identical terms within related provisions of the RJA. “ ‘ “Identical language should certainly receive identical construction when found in the same act.” ’ ” Empire Iron Mining Partnership v Orhanen, 455 Mich 410, 426 n 16; 565 NW2d 844 (1997) (citation deleted); see also People ex rel Simmons v Munising Twp, 213 Mich 629, 633; 182 NW 118 (1921).
Although subsections b(¿) and (ii) each establishes an additional expert qualification standard to he used “if [the defendant] is a specialist,” those additional requirements do not negate the standards to be employed in cases like this, in which the defendants are not “specialist” physicians.
Plaintiffs do not contend that Smith fails to meet the other requirements of subsection b regarding the time she spends in therapy activities.
The dissent’s interpretation of the statute improperly constrains the use of experts, in derogation of common-law principles otherwise applicable, more than is required by the statutory language. Nation v WDE Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997) (Statutes in derogation of the common law are to be given the effect which makes the least rather than the most change in the common law.).
As our dissenting colleague points out, the language of § 2169(l)(b)(i) may be read to suggest that a “health profession” is a particular licensure or registration. This understanding is directly contradicted by the specific and more expansive statutory definition of “health profession” discussed above. Giving deference to that specific definition, we read § 2169(l)(b)(¿) as requiring that an expert must practice in the same “vocation, calling, occupation, or employment” as does a defendant, both by virtue of a license or registration.
If we could conclude that Smith was qualified, that would he a basis for reversing the trial court’s order granting a default judgment against defendants. We reach that same result, however, for reasons discussed below. Therefore, the issue on which we are in disagreement with McElhaney is not “outcome determinative” for the purposes of MCR 7.215(J)(2).
Defendants offered a second affidavit of meritorious defense, signed by an occupational therapist, after plaintiff challenged Smith’s affidavit.
Concurring in Part
{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.
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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