If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

DALE GERALD GLINIECKI,

Plaintiff-Appellee,

UNPUBLISHED

May 26, 2022

v No. 356543

Wayne Circuit Court

ASCENSION ST. JOHN HOSPITAL, ST. JOHN 

PROVIDENCE, doing business as ST. JOHN 

HOSPITAL AND MEDICAL CENTER, 

CARDIOVASCULAR INSTITUTE OF 

MICHIGAN, PC, and ALI HUSSAIN SHAKIR,

LC No. 19-001388-NH

Defendants-Appellants.

Before: LETICA, P.J., and MARKEY and O’BRIEN, JJ.

PER CURIAM.

In this medical malpractice action, defendants appeal by leave granted1the trial court’s 

orders denying their motions for summary disposition. We affirm in part and reverse and remand 

in part. 

This medical malpractice lawsuit arose from a cardiac-flutter-ablation procedure that 

defendant, Dr. Ali Hussain Shakir, a board-certified clinical cardiac electrophysiologist (CCE), 

performed on plaintiff. In a multicount complaint alleging direct and vicarious claims of liability, 

plaintiff alleged that malpractice occurred before, during, and after the ablation procedure. 

Plaintiff asserted that negligent acts and omissions were committed by Dr. Shakir, attending 

registered nurses (RNs) or “nursing staff,” and other agents, employees, and contractors of the 

entity defendants. In relation to the complaint, plaintiff attached or included affidavits of merit 

(AOMs) executed by Dr. Paul LeLorier, a CCE, Dr. Robert Lee, a board-certified general and 

vascular surgeon, and Holly Sworst, an RN. Sworst was not a nurse practitioner (NP). Plaintiff 

 

1 Gliniecki v Ascension St John Hosp, unpublished order of the Court of Appeals, entered July 6, 

2021 (Docket No. 356543).
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did not file an AOM of an NP. The complaint did not identify by name any particular RN, nor did 

the complaint specifically allege negligence by an NP.

2

 In his brief on appeal, plaintiff claims 

that Linda Mannino and Sabina Singh were negligent in caring for and treating plaintiff. Mannino 

and Singh were NPs as well as RNs. For purposes of the litigation going forward, plaintiff, with 

respect to the standard of care and its breach, relies on the testimony of Donald Bucher and Barbara 

McLean. Like Mannino and Singh, Bucher and McLean were dually licensed or certified as RNs

and NPs.

Defendants filed two motions for summary disposition under MCR 2.116(C)(10). One of 

the motions concerned plaintiff’s claims against Dr. Shakir and the other the claims involving the 

RNs or nursing staff. With respect to Dr. Shakir, defendants maintained that Dr. LeLorier’s 

testimony was unreliable and contrary to the facts in evidence because his theory on how Dr. 

Shakir breached the standard of care was wholly undermined when Dr. Shakir clarified and 

elaborated on the procedure used in performing the cardiac ablation. In regard to the RNs, 

defendants argued that plaintiff’s proffered experts, Bucher and McLean, were not qualified to 

offer standard-of-care testimony in connection with Mannino, Singh, and any other nurses 

encompassed by the complaint. Defendants contended that Bucher and McLean had devoted a 

majority of their professional time to the practice or instruction of nurse practitionership during 

the year immediately preceding the cardiac ablation. But, according to defendants, Mannino and 

Singh were working as RNs and not NPs when providing care for plaintiff at the time of the 

ablation procedure. The trial court disagreed with defendants’ arguments and denied both motions 

for summary disposition. Defendants filed an application for leave to appeal, and this Court 

granted leave.

We review de novo a trial court’s ruling on a motion for summary disposition. El-Khalil 

v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019).3

 

2 Plaintiff alleged malpractice by nurses and nursing staff but not by any nurse practitioners.

3 MCR 2.116(C)(10) provides that summary disposition is appropriate when, “[e]xcept as to the 

amount of damages, there is no genuine issue as to any material fact, and the moving party is 

entitled to judgment or partial judgment as a matter of law.” A motion brought pursuant to MCR 

2.116(C)(10) tests the factual support for a party’s action. Pioneer State Mut Ins Co v Dells, 301 

Mich App 368, 377; 836 NW2d 257 (2013). “Affidavits, depositions, admissions, or other 

documentary evidence in support of the grounds asserted in the motion are required . . . when 

judgment is sought based on subrule (C)(10),” MCR 2.116(G)(3)(b), and such evidence, along 

with the pleadings, must be considered by the court when ruling on the (C)(10) motion, MCR 

2.116(G)(5). “When a motion under subrule (C)(10) is made and supported . . ., an adverse party 

may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or 

as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for 

trial.” MCR 2.116(G)(4). 

“A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the 

pleadings, affidavits, and other documentary evidence, when viewed in a light most favorable to 
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In Estate of Horn v Swofford, 334 Mich App 281, 287-288; 964 NW2d 904 (2020), this 

Court set forth standards of review that are pertinent to the instant appeal: 

This case turns on the interpretation of MCL 600.2169, and “[t]he 

construction of MCL 600.2169 presents a question of law subject to de novo 

review.” Crego v Edward W Sparrow Hosp Ass’n, 327 Mich App 525, 531; 937 

NW2d 380 (2019); see also Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 

(2006). We review for an abuse of discretion a trial court’s decision concerning the 

qualifications of a proposed expert witness to testify. Crego, 327 Mich App at 531. 

When a trial court’s decision falls outside the range of principled and reasonable 

outcomes, the court abuses its discretion. Id. A court necessarily abuses its 

discretion when a particular ruling constitutes an error of law. Id.

“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.” Cox v Flint Bd of Hosp Managers, 467 Mich 

1, 10; 651 NW2d 356 (2002) (quotation marks and citation omitted); see also Estate of Horn, 334 

Mich App at 288. “Failure to establish any one of these four elements is fatal to a plaintiff's 

medical malpractice suit.” Estate of Horn, 334 Mich App at 288 (citation omitted). In Cudnik v 

William Beaumont Hosp, 207 Mich App 378, 382; 525 NW2d 891 (1994), this Court noted that 

the “standard of care is founded upon how other doctors in that field of medicine would act and 

not how any particular doctor would act.” (Quotation marks and citation omitted.) “Generally, 

expert testimony is required in a malpractice case in order to establish the applicable standard of 

care and to demonstrate that the professional breached that standard.” Elher v Misra, 499 Mich 

11, 21; 878 NW2d 790 (2016) (quotation marks and citation omitted).

MCL 600.2912d(1) requires a medical malpractice plaintiff to “file with the complaint an 

affidavit of merit signed by a health professional who the plaintiff’s attorney reasonably believes 

 

the nonmovant, show that there is no genuine issue with respect to any material fact.” Pioneer 

State, 301 Mich App at 377. “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.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). The 

trial court is not permitted to assess credibility, weigh the evidence, or resolve factual disputes, 

and if material evidence conflicts, it is not appropriate to grant a motion for summary disposition 

under MCR 2.116(C)(10). Pioneer State, 301 Mich App at 377. “Like the trial court’s inquiry, 

when an appellate court reviews a motion for summary disposition, it makes all legitimate 

inferences in favor of the nonmoving party.” Skinner v Square D Co, 445 Mich 153, 162; 516 

NW2d 475 (1994). “[S]peculation is insufficient to create an issue of fact.” MEEMIC Ins Co v 

DTE Energy Co, 292 Mich App 278, 282; 807 NW2d 407 (2011). A court may only consider 

substantively admissible evidence actually proffered by the parties when ruling on the motion. 

Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999); see also MCR 2.116(G)(6).
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meets the requirements for an expert witness under section 2169.” MCL 600.2169 provides, in 

pertinent 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:

* * *

(b) Subject to subdivision (c) [inapplicable], 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.

MCL 600.2169(1)(b) applies “generally to all malpractice actions, including those initiated 

against nonphysicians.” McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 494; 711 NW2d 

795 (2006). “MCL 600.2169(1)(a), which refers to specialists, does not apply to nurses, . . . but 

MCL 600.2169(1)(b) does, because it applies to all health professionals.” Jones v Botsford 

Continuing Care Corp, 310 Mich App 192, 198; 871 NW2d 15 (2015) (citation omitted).

In this case, defendants argue that the trial court erred by denying their motion for summary 

disposition with respect to the claims against the RNs because an NP cannot offer standard-of-care 

testimony in regard to RNs. And, according to defendants, plaintiff had not advanced any claims 

against an NP, having failed to submit an AOM from an NP. Defendants contend that neither 

Bucher nor McLean—plaintiff’s experts—can provide testimony regarding the standard of care 

concerning the RNs because the experts spent a majority of their professional time in the year 

before the alleged malpractice working as NPs or teaching in that field.

We start our analysis of this issue by examining plaintiff’s complaint and the AOMs 

attached to the complaint. The complaint alleged negligence or malpractice by nurses, RNs, and 

nursing staff, along with other agents, employees, and contractors. Plaintiff’s complaint did not 

mention the specific name of any of the individuals who fit into these job-related categories; no 

RN or NP was named as a defendant in the lawsuit, nor was any RN or NP identified by name in 

the extensive complaint. Moreover, at no point in the complaint did plaintiff expressly allege 

malpractice by a “nurse practitioner.” Plaintiff filed the complaint in January 2019. More than a 

year earlier, this Court issued its opinion in Cox v Hartman, 322 Mich App 292; 911 NW2d 219 

(2017). In Cox, this Court held that “[t]he health profession of a nurse and the health profession 
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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.” Id. at 

305. Accordingly, under MCL 600.2912d(1) and MCL 600.2169(1), if an NP is alleged to have 

committed malpractice, the plaintiff must file a supporting AOM executed by an NP. In this case, 

plaintiff did not file an AOM by an NP. Given the allegations in the complaint, which never 

alleged negligence by a “nurse practitioner,” and the absence of an AOM from an NP, we conclude 

that plaintiff failed to allege negligence or malpractice by an NP. Our ruling does not entail a 

challenge of the AOMs plaintiff filed. See MCR 2.112(L)(2)(b) (setting a time limit to challenge 

an AOM).4 We accept the AOMs as filed and simply conclude that they, in conjunction with the 

allegations in the complaint, demonstrate that plaintiff failed to allege a claim of negligence by an 

NP. 

In light of our ruling, plaintiff’s allegations concerning Mannino and Singh or any nurse, 

in order to succeed, had to pertain to their actions as RNs, and we shall proceed with our analysis 

on the assumption that they were acting as RNs when providing treatment to plaintiff.5 For 

plaintiff to establish the standard of care and breach of that standard at trial, plaintiff would need 

to submit evidence from an RN—with a pertinent one-year history before the ablation—regarding 

the purported standard and breach. See MCL 600.2169(1). This Court’s ruling in Cox, 322 Mich 

App 292, demands such an analysis. In Cox, the plaintiff alleged, in relevant part, that an RN 

committed malpractice in relation to the birth of the plaintiff’s daughter. Id. at 296. The 

defendants in Cox accurately contended that the plaintiff’s expert, in the year immediately 

preceding the birth, had devoted the majority of her professional time to instructing university 

students in an NP graduate program. Id. at 297-298. After reviewing MCL 600.2169(1) and state 

licensing and certification schemes regarding RNs and NPs, this Court held:

Because [the plaintiff’s expert] 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 . . . a registered nurse. [The expert’s] testimony was 

therefore properly excluded. [Cox, 322 Mich App at 305.] 

The Cox panel rejected various arguments posed by the plaintiff, including the plaintiff’s 

contention that Sturgis Bank & Trust Co v Hillsdale Community Health Ctr, 268 Mich App 484; 

708 NW2d 453 (2005), dictated a different outcome. Cox, 322 Mich App at 308-310. 

Cox is controlling precedent and governs in our case. Plaintiff’s arguments to the contrary 

were essentially rejected in Cox, including plaintiff’s reliance on Sturgis Bank. The question thus 

 

4 Had plaintiff identified an NP in the complaint or referenced the health profession of “nurse 

practitioner,” then one could reasonably argue that the AOMs had to be timely challenged in accord 

with MCR 2.112(L)(2)(b). The allegations of negligence by the “nursing staff” did not encompass 

NPs. 

5 Of course, if Mannino and Singh were acting as NPs when providing care, we would conclude 

that no cause of action was alleged against them as NPs.
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becomes whether Bucher or McLean, who, again, were both NPs and RNs, devoted a majority of 

his or her time in the active clinical practice of nursing or in the instruction of students in the 

nursing field during the year immediately preceding the date of the alleged negligence. The record 

does not establish that either Bucher or McLean did so. Bucher’s deposition testimony revealed 

that during the year immediately preceding the date of the alleged malpractice, he devoted a 

majority of his professional time instructing students in an NP program. And with respect to 

McLean, plaintiff simply failed to provide any evidence reflecting that she devoted a majority of 

her time in the active clinical practice of nursing or instructing students in the nursing field during 

the year immediately preceding the date of the alleged negligence. Because neither Bucher nor 

McLean can testify regarding the standard of care applicable to RNs, as a matter of law, plaintiff 

cannot establish all of the requisite elements of a medical malpractice claim. See Cox, 467 Mich 

at 10; Estate of Horn, 334 Mich App at 288. Accordingly, the trial court erred by denying the 

motion for summary disposition relative to the alleged negligence of any RNs.6

With respect to the alleged malpractice of Dr. Shakir, defendants argue that Dr. LeLorier’s 

testimony was premised on an assumption of facts not supported by the evidence. Defendants 

contend that Dr. LeLorier’s testimony was contrary to the facts in the record, so it could not 

establish a genuine issue of material fact on the standard of care and breach of the standard of care. 

We conclude that this argument is generally unavailing because it focuses on only one of several 

alleged negligent acts or omissions asserted as to Dr. Shakir’s conduct. But we do hold that partial 

summary disposition in favor of defendants is appropriate in regard to one particular alleged breach 

of the standard of care. 

Dr. Shakir acknowledged that in performing the cardiac flutter ablation he punctured 

plaintiff’s femoral artery when gaining venous access and that the puncture caused an 

arteriovenous (AV) fistula. Dr. LeLorier opined that Dr. Shakir’s improper care and treatment 

caused plaintiff’s AV fistula and a pseudoaneurysm. According to Dr. LeLorier, had Dr. Shakir

used fluoroscopy to gain venous access during the ablation procedure, he would have been in 

conformity with the standard of care. But Dr. LeLorier suspected that Dr. Shakir had not used 

fluoroscopy to gain venous access: The surgical notes would have documented its use, and they 

did not indicate that Dr. Shakir used fluoroscopy in that manner.7 Dr. Shakir, however, then 

submitted an uncontradicted affidavit in which he averred that he had used fluoroscopy to gain 

venous access during the ablation procedure. For this reason, defendants maintain that plaintiff 

cannot factually establish breach of the standard of care as necessary to succeed on a claim of 

medical malpractice, see Cox, 467 Mich at 10; Estate of Horn, 334 Mich App at 288, thereby 

entitling defendants to summary dismissal of the claims involving Dr. Shakir. 

 

6 To the extent that plaintiff is arguing that his attorney had a reasonable belief that Bucher and 

McLean were qualified to give standard-of-care testimony regarding RNs, we find that the 

reasonable-belief standard applies to AOMs, MCL 600.2912d(1), not trial testimony, MCL 

600.2169(1). Moreover, in light of Cox, no such belief would be reasonable. 

7 The medical records reflected that Dr. Shakir had used fluoroscopy, but they failed to show how 

he used fluoroscopy—to gain venous access or to insert the catheter. 
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Although we agree that defendants are correct in relation to the standard of care with 

respect to using fluoroscopy for gaining venous access, we conclude that defendants’ argument 

effectively ignores the additional alleged breaches of the standard of care. In his deposition, Dr. 

LeLorier testified that Dr. Shakir breached the standard of care by using a modified micropuncture 

technique in performing the ablation, failing to properly locate the access stick so as not to be too 

low, failing to avoid cannulating the superficial femoral artery (causing the catheter to go throughand-through the femoral artery into the vein), failing to recognize said cannulation, failing to 

auscultate the groin or examine pulses post-procedure, and failing to timely diagnose a 

pseudoaneurysm or AV fistula post-procedure. Dr. LeLorier noted that part of the malpractice Dr. 

Shakir committed was “the failure to recognize there was a complication” and to proceed

accordingly. Dr. LeLorier stated that had the AV fistula been diagnosed, “that would have led to 

an ultrasound which would have diagnosed the pseudoaneurysm.” Accordingly, because there 

was more than one alleged breach of the standard of care, defendants’ argument does not justify 

granting a motion for summary disposition that disposes of the entire case in regard to Dr. Shakir. 

Therefore, the trial court did not err by denying the motion for summary disposition in relation to 

Dr. Shakir’s alleged malpractice, except with respect to the alleged breach that Dr. Shakir failed 

to use fluoroscopy to gain venous access. On that matter, defendants are entitled to an order 

granting partial summary disposition. 

Finally, as an alternative argument to the one that we just addressed and rejected, 

defendants contend that Dr. LeLorier’s opinion testimony was inadmissible under MRE 702 and 

the factors set forth in MCL 600.2955 because it was not sufficiently reliable. This argument 

simply presents a different legal basis for excluding or not considering Dr. LeLorier’s testimony 

that Dr. Shakir breached the duty of care by not using fluoroscopy to gain venous access during 

the ablation procedure. We have now summarily dismissed the fluoroscopy-based claim, and 

defendants’ argument regarding reliability under MRE 702 and MCL 600.2955(1) does not 

encompass Dr. LeLorier’s opinions on the other alleged breaches of the standard of care. Thus, 

with the one exception, defendants are not entitled to wholesale summary dismissal of the medical 

malpractice action predicated on Dr. Shakir’s alleged negligence. 

We affirm in part and reverse and remand in part for further proceedings consistent with 

this opinion. We do not retain jurisdiction. We decline to award taxable costs under MCR 7.219.

/s/ Anica Letica

/s/ Jane E. Markey

/s/ Colleen A. O’Brien