Michigan Supreme Court 

# Order

Lansing, Michigan

July 25, 2007 Clifford W. Taylor,
Chief Justice

130045 Michael F. Cavanagh

Elizabeth A. Weaver Marilyn Kelly Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman, STURGIS BANK AND TRUST COMPANY, Justices Conservator of the Estate of Tanya E. Walling, a legally incapacitated individual, Plaintiff-Appellee,

v SC: 130045

COA: 261767

Hillsdale CC: 03-000608-NH

HILLSDALE COMMUNITY HEALTH CENTER, Defendant-Appellant.

________________ _______________ __________/

On January 11, 2007, the Court heard oral argument on the application for leave to appeal the October 27, 2005 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

C AVANAGH , J., concurs and states as follows:

I concur in the denial of leave to appeal in this case. I write only to point out the accuracy of the following statement of the C ourt of Appeals, despite Justice Corrigan’s questioning of that statement, post at 2:

While [MCL 600.]2169(1) se ts forth requirements or qualifications for an expert witness, [MCL 600.]2169(2) is not a set of requirements or qualifications; rather, it is th e method by which the court evaluates whether an expert is qualified, and it directs th e court to take into consideration the four factors listed therein. [ Sturgis Bank & Tr ust Co v Hillsdale Community Health Ctr

, 268 Mich App 484, 492 (2005).]

The Court of Appeals statement is in accord with the majority opinion in Woodard v

Custer , 476 Mich 545, 572-574 (2006). While Justice Corrigan is correct that the witness will ultimately require assessment by the trial court before testifying at trial, the2

criteria in MCL 600.2169(2) are not “requireme nts” that the affiant must “meet” when executing an affidavit of merit. It would be difficult to ha ve a reasonable belief that the affiant “meets” any of the four criteria as they are denoted in MCL 600.2169(2):

In determining the qualifi cations of an expert witn ess in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following:

(a) The educational and profe ssional 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.

Rather, after an expert witness meets th e true “criteria,” which are set forth in MCL 600.2169(1), the trial court may have reason to further assess the admissibility of the expert witness’s testimony at trial under MCL 600.2169(2).

C ORRIGAN , J., dissents and states as follows:

I would grant defendant’s application fo r leave to appeal. In this medical malpractice case, the Court of Appeals establis hes that the plaintiff’s expert who submits

the affidavit of merit re quired by MCL 600.2912d need only meet the matching requirements in MCL 600.21 69(1), but not the remaining requirements for medical experts listed in the other se ctions of MC L 600.2169. Sturgis Bank & Trust Co v Hillsdale Community Health Ctr, 268 Mich App 484 (2005). The Court of Appeals unnecessarily invents the proposition that a medical malpractice action consists of two stages with different requirements for the qua lification of experts. Most significantly, its holding appears to violate the language of MCL 600.2912d(1), which states that “the plaintiff in an action alleging medical malprac tice . . . 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 .” (Emphasis added.)

The mandate in MCL 600.2912d(1) is not limited to the attorney’s reasonable belief that the expert merely meets the re quirements in MCL 600.2169(1). Moreover, I question the Court of Appeals conclusion that the criteria in § 2169(2) cannot constitute “requirements” for purposes of § 2912d(1) because they merely provide “the method by

which the court evaluates whether an expert is qualified” by directing the courts “to take

into consideration the four factors listed therein.” Sturgis Bank, supra at 492. Certainly3

an expert is ultimately required to be qualified by the tr ial court under § 2169(2). Further, I question Justice Cavanagh’s conclusion that “[i]t would be difficult to have a

reasonable belief that the affian t ‘meets’ any of the four criteria as they are denoted in MCL 600.2169(2)[.]” To the cont rary, an attorney clearly may form a belief regarding whether an expert may qualify to offe r his proposed testimony because of his “educational and professional training,” his “a rea of specialization,” “[t]he length of time the expert witness has been engaged in the ac tive clinical practice or instruction of the health profession or the sp ecialty, and “[t]he relevancy of the expert witness’s testimony.” MCL 600.2169(2)(a) to (d). Si milarly, I question the Court of Appeals contention that acknowledging the criteria in § 2169(2) would require “minitrials . . . concerning the validity of an affidav it of merit” to any unusual degree. Id. at 493. MCL 600.2912d does not require a plaintiff to prove that his expert qualifi es under § 2169. It merely requires a plaintiff to show that his attorney reasonably believed that the expert would meet the requirements.

To illustrate, an affidavit of merit must include the affiant’s statement that “[t]he

manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.” MCL 600. 2912d(1)(d). In the cas e before us, it would take very little to prove or disprove the reasona bleness of the belief of plaintiff’s attorney that the nurses who provided affidavits of me rit would qualify to o ffer relevant testimony — on the basis of their educational and prof essional training and length of experience — regarding whether the alleged br eaches of the standard of care were the proximate cause of the injuries alleged in the notice. Th e alleged breaches cons isted of failures of defendant’s nursing staff to properly preven t the patient from falli ng out of her hospital bed. In the notice plaintiff filed pursuant to MCL 600.2912b, plain tiff claimed that these breaches caused “serious and pe rmanent injuries.” The co mplaint clarified that the “serious and permanent injuries” consisted of “severe closed head injury, intra cranial injury, brain damage and unconsciousn ess” as well as “[i]mpaired cognitive functioning.” 1 Indeed, the nurse affiants were unable to address whether the alleged negligence of defendant’s nursing staff caus ed serious and perman ent injuries to the patient’s brain, although the affiants appeared qualified to address the standard of care. Plaintiff does not argue that its at torney reasonably be lieved otherwise.

Plaintiff attempted to rectify the pr oblem by providing the affidavit of a neurologist who opined that the patient “sustained a closed he ad injury as a result of her fall from the hospital bed . . . and the neur ological impairments and sequelae, as

1 It is worth noting that the pa tient had been admitted to the ho spital, before her fall, after a car accident. The emergency room report indicates that she wa s diagnosed with a closed head injury, among other things._______________________________________ __ 4

diagnosed in the subsequent medical records, were caused by the traumatic brain injury

sustained in the fall.” Al though the trial court dismi ssed the case because the neurologist’s affidavit was filed after the stat utory limitations period e xpired, the Court of Appeals found the nurses’ affidavits of merit, alone, sufficient and reinstated the case. Thus, in addition to ignoring the mandate in MCL 600.2912d(1) that an attorney must reasonably believe the affiant “meets the requir ements for an expert witness under section

2169” — with no limitation merely to the matching requirements in § 2169(1) — the Court essentially permits a bl atantly unqualified affiant to make statements regarding proximate cause. In other words, the Court concludes that an affidavit of merit may comply with MCL 600.2912d even if that affidavit does not contain a meaningful, relevant, or qualified statement of “[t]he ma nner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice,” as required by § 2912d(1)(d). This thwart s the purpose of the statute, as evident in its language, because it fails to put a defendant on notic e of the nature and merit of the causation

element of the claim.

Finally, in a case like this one where a single expert will not qualify to address both the standard of care and proximate causa tion, I find nothing in the language of MCL 600.2912d that prevents a plaintiff from filing two affidavits of merit. MCL 600.2912d(1) refers to “an” affidavit or “t he” affidavit, which is signed by “a” health professional or “the” health professional. Michigan’s rules of statutory construction establish that “[e]very word importing th e singular number only may extend to and embrace the plural number,” MCL 8.3b, “unless such construction woul d be inconsistent with the manifest intent of the legislature, ” MCL 8.3. Here, the Legislature’s intent supports the use of multiple affidavits becaus e the statute requires a plaintiff to present affidavits from experts who can addre ss the relevant standard of care and proximate causation. In a case like this one, a neurol ogist will generally be unable to meet the professional matching requirement s in MCL 600.2169(1) that would be necessary for him to address the appropriate standard of ca re and its breach. Likewise, a nurse will generally be unable to address the medical cause of brain damage and impaired cognitive functioning, particularly in a patient with a preexisting head injury. Thus, affidavits from two experts appear necessary in order for plai ntiff to provide notice of the merits of his claim and proceed with his suit. I see no reason why multiple affi davits would in any way thwart the language or apparent purpose of MCL 600.2912d.

For these reasons, I would grant leave.

t0723 I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

July 25, 2007

Clerk