Cox v. Eric J. Hartman, M.D., & Blue Water Obstetrics & Gynecology Prof'l Corp.
Cox v. Eric J. Hartman, M.D., & Blue Water Obstetrics & Gynecology Prof'l Corp.
Opinion
*296 These consolidated appeals arise from the same medical malpractice case. In Docket No. 333849, Leana M. Cox (plaintiff), formerly known as Leana M. Taravella, individually and as next friend of Angelina A. Cox (Angelina), a minor, appeals by leave granted 1 a June 6, 2016 opinion and order granting summary disposition in favor of defendants Tracey McGregor, R.N., and Port Huron Hospital pursuant to MCR 2.116(C)(10). In Docket No. 333994, plaintiff appeals by leave granted 2 a July 6, 2016 order denying plaintiff's motion for leave to name a new nursing expert and to file an amended affidavit of merit. The appeals were consolidated. Cox v. Hartman , unpublished order of the Court of Appeals, entered January 20, 2017 (Docket No. 333849); Cox v. Hartman , unpublished order of the Court of Appeals, entered January 20, 2017 (Docket No. 333994). We affirm in both appeals.
This case arises out of alleged malpractice on the part of defendant Eric J. Hartman, M.D., and McGregor, a registered nurse, related to the birth of plaintiff's daughter, Angelina, on April 26, 2010, at Port Huron Hospital. Hartman delivered Angelina, *297 and McGregor assisted in the delivery. Hartman was an owner and employee of defendant Blue Water Obstetrics and Gynecology Professional Corporation, doing business as Blue Water OB GYN, PC (Blue Water). McGregor was an employee of Port Huron Hospital. Plaintiff filed this medical malpractice action alleging negligence on the part of Hartman and vicarious liability of Blue Water for Hartman's negligence. Plaintiff also asserted a claim of professional negligence against McGregor. Plaintiff further alleged that Port Huron Hospital was vicariously liable *223 for the negligence of McGregor. 3
After discovery, McGregor and Port Huron Hospital (hereinafter referred to collectively as defendants, given that Hartman and Blue Water are not involved in these appeals) moved for summary disposition pursuant to MCR 2.116(C)(10). As relevant to these appeals, defendants argued that plaintiff's proposed nursing expert, Claudia A. Beckmann, was not qualified to offer standard-of-care testimony against McGregor pursuant to MCL 600.2169(1) and that defendants were thus entitled to summary disposition with respect to plaintiff's nursing malpractice claim. Defendants argued that, during the year immediately preceding the alleged malpractice, Beckmann did not devote the majority of her professional time to the active clinical practice or teaching of labor and delivery nursing, or even nursing more generally. Instead, Beckmann devoted the majority of her professional time to instructing students in a nurse practitioner graduate program at Rutgers University. In response to defendants' motion, plaintiff contended that Beckmann was qualified to testify as an expert witness on *298 the standard of care for a registered nurse. Plaintiff argued that Beckmann devoted the majority of her professional time in the year preceding the alleged malpractice to instructing students in the nursing profession. In particular, plaintiff suggested that, by teaching nurse practitioner students, Beckmann was providing instruction in the same profession in which McGregor was licensed. The trial court ultimately agreed with defendants' argument and granted summary disposition to defendants on the nursing malpractice claim. Plaintiff then moved for leave to name a new nursing expert and to amend the affidavit of merit regarding the nursing malpractice claim; the trial court denied plaintiff's motion. These appeals followed.
Plaintiff argues on appeal that the trial court erred by determining that Beckmann was unqualified to testify as an expert witness concerning the standard of care applicable to McGregor and that the court erred by granting summary disposition to defendants. We disagree.
A trial court's ruling regarding the qualification of a proposed expert witness to testify is reviewed for an abuse of discretion.
Woodard v. Custer
,
The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. The first step is to examine the plain language of the statute itself. The Legislature is presumed to have intended the meaning it plainly expressed. If the statutory language is clear and unambiguous, appellate courts presume *299 that the Legislature intended the meaning plainly expressed, and further judicial construction is not permitted. [ McElhaney ex rel. McElhaney v. Harper-Hutzel Hosp. ,269 Mich. App. 488 , 493,711 N.W.2d 795 (2006) (citations omitted).]
"When a statute specifically defines a given term, that definition alone controls."
Haynes v. Neshewat
,
A trial court's decision on a motion for summary disposition is reviewed de novo.
Johnson v. Recca
,
In reviewing a motion under MCR 2.116(C)(10), this Court considers the pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial. Summary disposition is appropriate if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law. A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. [ Bank of America, NA v. Fidelity Nat'l Title Ins. Co. ,316 Mich. App. 480 , 488,892 N.W.2d 467 (2016) (quotation marks and citations omitted).]
"The plaintiff in a medical malpractice action bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal."
Cox ex rel. Cox v. Flint Bd. of Hosp. Managers
,
*300
(quotation marks and citation omitted). Although nurses do not engage in the practice of medicine, the Legislature has made malpractice actions available against any licensed healthcare professional, including nurses.
Id
. at 19-20,
MCL 600.2169(1) provides, in relevant part:
(1) 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:
* * *
*301 (b) Subject to subdivision (c) [which is not relevant here], 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 *225 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.
A majority means more than 50%.
Kiefer v. Markley
,
Beckmann's deposition testimony establishes that she devoted a majority of her professional time in the year immediately preceding April 26, 2010, to the practice of, or the instruction of students in, the health profession of a nurse practitioner, which, as explained
*302
later in this opinion, is different from the health profession of a registered nurse. According to Beckmann's curriculum vitae, she has, among other degrees, a post-master's certificate as a women's health nurse practitioner. Beckmann testified that, during the relevant period,
5
she was the coordinator of the women's health nurse practitioner graduate program in the college of nursing at Rutgers University; in this position, she instructed nurse practitioner students. The nurse practitioner courses that she taught lasted the entire semester. Beckmann lectured nurse practitioner students in an academic setting and provided clinical training to nurse practitioner students. Beckmann also gave labor and delivery lectures in an undergraduate maternity nursing program, but this lecturing comprised a smaller percentage of her professional time than the time devoted to instructing nurse practitioner students; she spent only about six hours each semester lecturing undergraduate nursing students. Beckmann spent a couple days each semester filling in clinically for faculty members who were teaching a course. The percentage of her professional time lecturing on labor and delivery to undergraduate nursing students and performing hands-on clinical work was less than 50%. It is clear from Beckmann's deposition testimony that, in the year immediately preceding April 26, 2010, she devoted a majority of her professional time to the practice of, or the instruction of students in, the health
*226
profession of a nurse practitioner.
6
*303
It is therefore necessary to determine whether a nurse practitioner has the same health profession as a registered nurse. Our Supreme Court has looked to the definition of "health profession" contained in MCL 333.16105(2), a provision of the Public Health Code (PHC), MCL 333.1101 et seq., when interpreting MCL 600.2169(1)(b). See
Bates v. Gilbert
,
The PHC defines a "registered professional nurse" or "r.n." as "an individual who is licensed under this part to engage in the practice of nursing which scope of practice includes the teaching, direction, and supervision of less skilled personnel in the performance of *304 delegated nursing activities." MCL 333.17201(e). The "practice of nursing" is defined as
the systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability. [ MCL 333.17201(c).]
A "certified nurse practitioner" is "an individual who is licensed as a registered professional nurse under part 172 who has been granted a specialty certification as a nurse practitioner by the Michigan board of nursing under section 17210." MCL 333.2701(c). See also
Cox
,
(1) The Michigan board of nursing may grant a specialty certification to a registered professional nurse who has advanced training beyond that required for initial licensure, who has demonstrated competency through examination or other evaluative processes, and who practices *227 in 1 of the following health profession specialty fields:
(a) Nurse midwifery.
(b) Nurse anesthetist.
(c) Nurse practitioner .
(d) Subject to subsection (2) [not relevant here], clinical nurse specialist. [Emphasis added.]
At the time of the alleged malpractice, McGregor was practicing the health profession of nursing pursuant to her license as a registered nurse. In the year *305 immediately preceding the alleged malpractice, Beckmann devoted the majority of her professional time to instructing or practicing in the health profession of a nurse practitioner pursuant to her registration or specialty certification as a nurse practitioner. The health profession of a nurse and the health profession of a nurse practitioner are different, as reflected in the fact that the former is practiced pursuant to a license while the latter is practiced pursuant to a registration or specialty certification. Because Beckmann did not spend the majority of her professional time in the year preceding the alleged malpractice practicing or teaching the health profession of a nurse, as opposed to the health profession of a nurse practitioner, she did not satisfy the statutory criteria to testify concerning the standard of care applicable to McGregor, a registered nurse. Beckmann's testimony was therefore properly excluded.
We find support for this reasoning in
Woodard
. In
Hamilton v. Kulgowski
, which was a companion case to
Woodard
, the defendant physician was board-certified in general internal medicine and specialized in general internal medicine.
Woodard
,
*306 The defendant physician specializes in general internal medicine and was practicing general internal medicine at the time of the alleged malpractice. During the year immediately preceding the alleged malpractice, plaintiff's proposed expert witness did not devote a majority of his time to practicing or teaching general internal medicine. Instead, he devoted a majority of his professional time to treating infectious diseases. As he himself acknowledged, he is "not sure what the average internist sees day in and day out." Therefore, plaintiff's proposed expert witness does not satisfy the same practice/instruction requirement of § 2169(1)(b).
For this reason, the trial court did not abuse its discretion in concluding that plaintiff's proposed expert witness is not qualified to testify regarding the appropriate standard of practice or care under § 2169(1). Because plaintiff failed to present an expert qualified under § 2169(1) to testify with regard to the appropriate standard of practice or care, the trial court properly granted a directed verdict in favor of defendant. [ Id . at 577-578,719 N.W.2d 842 .]
We find this reasoning in Woodard applicable in the analogous context of nursing and supportive of our analysis. Given that *228 Beckmann did not spend a majority of her professional time in the relevant time period practicing or teaching the health profession of nursing, she was not qualified to testify regarding the appropriate standard of care under MCL 600.2169(1)(b).
"On a motion for summary disposition, the existence of a disputed fact may only be established by admissible evidence."
McElhaney
,
Plaintiff argues that, in its opinion and order granting summary disposition to defendants, the trial court violated MCR 7.215(C)(1) by citing and relying on an unpublished opinion for a proposition of law for which there was published authority, i.e., Sturgis and McElhaney . We disagree. MCR 7.215(C)(1) provides:
An unpublished opinion is not precedentially binding under the rule of stare decisis. Unpublished opinions should not be cited for propositions of law for which there is published authority. If a party cites an unpublished opinion, the party shall explain the reason for citing it and how it is relevant to the issues presented. A party who cites an unpublished opinion must provide a copy of the opinion to the court and to opposing parties with the brief or other paper in which the citation appears.
Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule of stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive value.
Paris Meadows, LLC v. City of Kentwood
,
Moreover, contrary to plaintiff's argument, there is no published authority addressing the precise issue presented in this case. Plaintiff's reliance on Sturgis and McElhaney is misplaced.
In
Sturgis
,
"The Legislature's rationale for this disparity is, without doubt, traceable to the fact that until a civil action is underway, no discovery is available. See MCR 2.302(A)(1). Thus, the Legislature apparently chose to recognize that at the first stage, in which the lawsuit is about to be filed, the plaintiff's attorney only has available publicly accessible resources to determine the defendant's board certifications and specialization. At this stage, the plaintiff's attorney need only have a reasonable belief that the expert satisfies the requirements of MCL 600.2169. See MCL 600.2912d(1). However, by the time the plaintiff's expert witness testifies at trial, the plaintiff's attorney has had the benefit of discovery to better ascertain the qualifications of the defendant's physician, and, thus, the plaintiff's attorney's reasonable belief regarding the requirements of MCL 600.2169 does not control whether the expert may testify." [ Sturgis ,268 Mich. App. at 494 ,708 N.W.2d 453 , quoting Grossman ,470 Mich. at 599 ,685 N.W.2d 198 .]
The
Sturgis
Court also quoted language from
Grossman
noting that what satisfies the statutory standard at the affidavit-of-merit stage might not satisfy the requirements for admission of expert testimony at trial.
Sturgis
,
Sturgis is therefore distinguishable from the present case in numerous respects. The dispute in Sturgis concerned whether the proposed experts were qualified at the affidavit-of-merit stage to aver with respect to proximate cause , whereas the present case concerns the admissibility of the proposed expert's testimony at trial concerning the standard of care . As explained earlier, the standard at the affidavit-of-merit stage is more lenient than the standard for admissibility of expert testimony at trial. Further, the defendant in Sturgis conceded that the nurse and the nurse practitioner who signed the affidavits *230 of merit were employed in the same health profession as the nurses who allegedly committed the malpractice, and this Court had no occasion to examine the validity of that concession. Most importantly, plaintiff fails to recognize that it is not the mere fact that Beckmann is a nurse practitioner that precludes her testimony in this case; it is the fact that she did not devote a majority of her professional time to the practice or instruction of the health profession of nursing that renders her unqualified. Given that a nurse practitioner is licensed as a registered nurse but possesses an additional specialty certification as a nurse practitioner, it is possible that a nurse practitioner could qualify to testify regarding the standard of care against a registered nurse if the nurse practitioner devoted a majority of her professional time to instructing or practicing in the health profession of nursing during the relevant period. Therefore, plaintiff's argument that Sturgis controls this case is unavailing.
Plaintiff's reliance on
McElhaney
is likewise misplaced. In
McElhaney
,
Further, plaintiff's citation of a Georgia case,
Dempsey v. Gwinnett Hosp. Sys., Inc.
,
We also note that in
Jones
,
Plaintiff next argues that the trial court abused its discretion by denying plaintiff's motion to add an expert witness. We disagree.
This Court reviews for an abuse of discretion a trial court's decision whether to allow a party to add an expert witness.
Tisbury v. Armstrong
,
Plaintiff contends that the trial court erred by concluding that plaintiff's motion to add an expert witness was untimely. We disagree. Plaintiff did not move to add a new expert until June 10, 2016, which was four days after the trial court had entered its June 6, 2016 order granting summary disposition in favor of defendants. In an analogous context, this Court has held that a motion to amend a complaint was untimely when the motion was filed after summary disposition had already been granted to the defendant. See
*313
Wormsbacher v. Phillip R. Seaver Title Co., Inc.
,
Plaintiff argues that MCR 2.604(A) granted the trial court authority to revise the order granting summary disposition because a final judgment had not yet been *314 entered (given that plaintiff still had claims pending against Hartman and Blue Water). MCR 2.604(A) states, in pertinent part:
Except as provided in subrule (B) [not applicable here], an order or other form of decision adjudicating fewer than all the claims, or the rights and liabilities of fewer than all the parties, does not terminate the action as to any of the claims or parties, and the order is subject to revision before entry of final judgment adjudicating all the claims and the rights and liabilities of all the parties.
*232
Plaintiff's argument lacks merit. The trial court did not state that it lacked authority to revise the order granting summary disposition to defendants. Instead, the trial court ruled that plaintiff's motion to add a new expert witness was untimely. To the extent that plaintiff fails to address the basis of the trial court's decision, plaintiff has abandoned her argument on this issue. See
AK Steel Holding Corp. v. Dep't of Treasury
,
In any event, the trial court's decision was not premised solely on the untimeliness of the motion. After concluding that the motion was untimely, the trial court went on to state that even if the motion was properly before the court, the court would deny the motion given the prejudice to defendants. The trial court's decision fell within the range of principled outcomes. MCR 2.401(I)(1) provides that parties must file and serve witness lists no later than the time
*315
directed by the trial court. "The court may order that any witness not listed in accordance with this rule will be prohibited from testifying at trial except upon good cause shown." MCR 2.401(I)(2). The trial court's scheduling order required plaintiff to file and serve her witness lists by March 6, 2015. Hence, plaintiff's June 10, 2016 motion to add a new expert witness was filed more than one year and three months after the due date for filing and serving witness lists. It was thus plaintiff's burden to demonstrate good cause for the late addition of a new expert witness. The denial of a late motion to add a witness "is proper where the movant fails to provide an adequate explanation and show that diligent efforts were made to secure the presence of the witness."
Tisbury
,
As the trial court noted, plaintiff did not act diligently in pursuing this case. At one point in the case, the trial court had to enter an order requiring plaintiff's counsel to specify in writing whether plaintiff would use various listed experts, including Beckmann, and compelling plaintiff's counsel to cooperate in scheduling the depositions of expert witnesses. Plaintiff notes that she did not file a written response opposing defendants' motion to compel, that Beckmann's deposition was scheduled by the parties before the court entered its order on the motion to compel, and that the order granting the motion to compel resulted from an agreement of the parties, but it appears this agreement was reached only after the parties' attorneys came to court for the hearing on the motion to compel.
*316 Further, as discussed earlier, plaintiff's motion to add an expert witness was not filed until after the trial court had already granted summary disposition to defendants, even though plaintiff's counsel was on notice much earlier that Beckmann's qualification as an expert witness was at the very least in dispute. Even on the date of the hearing on plaintiff's motion to add a new expert witness, plaintiff's counsel still had not retained a new expert witness and had not provided any notice of the identity of any new expert witness to defendants, despite the fact that trial was scheduled to occur on September 7, 2016, *233 which was less than three months away at the time of the motion hearing. The case had been pending for one year and 10 months by the time plaintiff filed the motion to add a new expert witness. Given the lateness of plaintiff's motion, the trial court reasonably concluded that defendants would be prejudiced in preparing for trial if the motion was granted. Overall, the trial court's denial of plaintiff's motion to add a new expert witness fell within the range of principled outcomes.
Plaintiff also contends that she should be permitted to file an "amended" affidavit of merit signed by a new expert witness pursuant to MCR 2.112(L)(2)(b), which provides:
[A]ll challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the signer, must be made by motion, filed pursuant to MCR 2.119, within 63 days of service of the affidavit on the opposing party. An affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.
Plaintiff fails to explain how an affidavit of merit signed by a new expert witness, i.e., a different affiant than Beckmann, who had signed the prior affidavit of
*317
merit, would constitute an "amended" affidavit of merit under MCR 2.112(L)(2)(b). See
Jones
,
Affirmed.
Jansen, P.J., and Cavanaugh and Cameron, JJ., concurred.
See Cox v. Hartman , unpublished order of the Court of Appeals, entered January 20, 2017 (Docket No. 333849).
See Cox v. Hartman , unpublished order of the Court of Appeals, entered January 20, 2017 (Docket No. 333994).
Plaintiff asserted additional claims that are not relevant to these appeals.
An exception to the requirement of expert testimony "exists when the professional's breach of the standard of care is so obvious that it is within the common knowledge and experience of an ordinary layperson."
Elher
,
In his initial questioning of Beckmann, defense counsel mistakenly asked about the period of April 2008 to April 2009 rather than the period of April 2009 to April 2010, but defense counsel noted his mistake later in the deposition, and Beckmann then confirmed that all of her answers to the questions concerning how she spent her professional time during the period of April 2008 to April 2009 would be identical for the period of April 2009 to April 2010.
In an affidavit appended to plaintiff's response to defendants' motion for summary disposition, Beckmann asserted in conclusory terms that she devoted more than 50% of her time in the year preceding April 26, 2010, to the instruction of students in the health profession of nursing. "However, a witness is bound by his or her deposition testimony, and that testimony cannot be contradicted by affidavit in an attempt to defeat a motion for summary disposition."
Casey v. Auto-Owners Ins. Co.
,
Reference
- Full Case Name
- Leana M. COX, Formerly Known as Leana M. Taravella, Individually and as Next Friend of Angelina A. Cox, a Minor, Plaintiff-Appellant, v. Eric J. HARTMAN, M.D., and Blue Water Obstetrics and Gynecology Professional Corporation, Doing Business as Bluewater Ob Gyn, PC, Defendants, and Tracey McGregor, R.N., and Port Huron Hospital, Defendants-Appellees.
- Cited By
- 142 cases
- Status
- Published