The Michigan Supreme Court recently restated the standard of care requirements for expert medical witnesses under MCL 600.2169, as interpreted in a 2006 case (Woodard v. Custer). In Stokes v. Swofford (July 25, 2024), the Supreme Court held that the earlier decision was wrongly decided in part and must be overruled in part. That’s’ because the test it adopted on the evaluation of specialists in medical malpractice actions was inconsistent with the statutory language.
In a medical malpractice action, the plaintiff has the burden of proving a breach of the standard of care by the doctor. The standard of care is determined by how other physicians in a field of medicine would act when providing the same treatment. Expert testimony is required to establish the applicable standard of care and a breach of that standard. State law requires the plaintiff to “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.”
Background
The appeal consisted of two cases. In the first, a young woman suffered from severe headaches due to excess fluid around her brain. To relieve the pressure, doctors implanted a shunt catheter. Within 10 days of receiving the implant, she returned to the ER with headaches and vomiting. A brain scan was performed, and the defendant, a diagnostic radiologist with a sub-specialization in neuroradiology, verified the results, which he relayed to ER physicians. The ER physicians attempted to relieve the decedent’s brain pressure, but they weren’t successful, and the woman died. Her estate sued, claiming that the patient should’ve been referred immediately to neurosurgery rather than exacerbating the swelling with an emergency procedure.
The defendant obtained a certificate of added qualification in neuroradiology in 2002 from the American Osteopathic Board of Radiology. But the certificate is active for only 10 years; so, it would’ve lapsed in 2012 before the alleged malpractice in 2013.
To establish the standard of care, the estate hired a specialist in neuroradiology—a subspecialty of diagnostic radiology. Within both disciplines, a physician is trained in interpreting bodily images, but neuroradiologists specialize in interpreting images of the brain, spine, head, and neck. Because the malpractice involved interpreting a brain image and the defendant previously had a neuroradiology sub-specialization, the estate argued that the “one most relevant specialty” was neuroradiology rather than diagnostic radiology.
In the companion case, the plaintiff hired a doctor to perform multiple rhinoplasties to repair his nose from previous injuries. The doctor had certifications in otolaryngology, a specialty listed by the ABMS, and an additional certification from the American Board of Facial Plastic and Reconstructive Surgery (ABFPRS). He sued for medical malpractice, alleging he had a nasal deformity due to negligence and proposed a standard of care expert with the identical certifications as his physician. The plaintiff’s expert testified that he spent roughly 10% of his time on cosmetic rhinoplasties and 90% of his time on medical rhinoplasties.
The issue on appeal was what specialty was appropriate for the applicable standard of care in the malpractice actions.
The Plain Language of MCL 600.2169 Doesn’t Consider “Subspecialties”
Justice Elizabeth M. Welch wrote that one of the primary flaws in Woodard was equating “specialty” with “subspecialty.” Nowhere in the statute is there a reference to “subspecialties.” It only provides that if the defendant physician is a specialist, then the expert must practice or teach in the “same specialty.” Similarly, the statute states that if the defendant physician “is a specialist who’s board certified, the expert witness must be a specialist who’s board certified in that specialty.”
Welch wrote that the Court should recognize that “specialties” and “subspecialties” are distinctly separate terms, and that they’re technical terms within the practice of medicine that require a technical definition. A medical specialty refers to “[t]he particular subject area or branch of medical science to which one devotes professional attention.” She noted that the statute requires the plaintiff’s expert to specialize in the same specialty as the defendant physician, and, if the defendant physician is “a specialist who is board certified,” the expert must be a specialist who’s board certified in that specialty. Justice Welch concluded that both the dictionary definitions and the statute provide that a physician can be a specialist who’s not board certified—and that “a ‘specialist’ is somebody who can potentially become board certified.” The Court then concluded:
A “specialty” is a particular branch of medicine or surgery in which one can potentially become board certified. Accordingly, if the defendant physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff’s expert must practice or teach the same particular branch of medicine or surgery.
The Supreme Court said that a subspecialty isn’t the same thing as a specialty. A medical subspecialty is a concentrated area of knowledge and skills existing “within a specialty” requiring additional training and education. While the statute doesn’t give a definition for the term “specialty,” Justice Welch wrote that the term is also used in several other statutes related to the medical profession and, in those, it’s specifically tied to “board certification.”
While the ABMS, the AOA, and the ABPS are the leading and most well-accepted sources of board certifications for physicians in the country, the Supreme Court noted that there are several other board certifications offered to physicians through organizations that aren’t affiliated with one of these, and these also may be defined as specialties or subspecialties depending upon the requirements for those certifications.
The Statute Seeks to Ensure that Experts aren’t Underqualified
The goal rationale of the Legislature in adopting MCL 600.2169(1) was to ensure that experts in medical malpractice actions aren’t underqualified. But this ignores MCL 600.2169(2) and (3), where even if expert specialties “match” under MCL 600.2169(1), the trial court still has discretion on whether to accept the expert as qualified to provide testimony in a particular case. MCL 600.2169(2) mandates that the trial court evaluate all the following factors:
(a) The educational and professional training of the expert witness.
(b) The area of specialization of the expert witness.
(c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty.
(d) The relevancy of the expert witness’s testimony.
A trial court could go further under MCL 600.2169(3) and allows disqualifications for other reasons, meaning an internist who exclusively treats medical conditions associated with the lungs could be deemed unqualified to testify as an expert for an internist who exclusively treats medical conditions associated with the heart if the alleged malpractice involved an alleged error that is specific to the heart.
While the Legislature adopted the statute to ensure that medical experts wouldn’t be underqualified, Woodard‘s mistaken interpretation as to subspecialties excludes highly-qualified medical providers from serving as experts. As such, the Supreme Court concluded that Woodard gave a skewed and inaccurate construction of the statute and that highly qualified experts were being disqualified.
The Supreme Court held that that the words “specialist” and “specialties” as used in MCL 600.2169(1) are defined as the specialties recognized by the ABMS, AOA, ABPS, or other nationally recognized physician umbrella-certifying organizations.
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