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### STATE OF MICHIGAN

COURT OF APPEALS

MILDRED JONES, Personal Representative of the ESTATE OF AMOS JONES,

Plaintiff-Appellant/Cross-Appellee, FOR PUBLICATION April 7, 2015
9:05 a.m.

v No. 317573
Oakland Circuit Court
BOTSFORD CONTINUING CARE CORPORATION, LC No. 2012-130023-NH

Defendant-Appellee/CrossAppellant,

and

DR. THOMAS SELZNICK and LIVONIA FAMILY PHYSICIANS, PC,

Defendants-Appellees.

Before: D ONOFRIO , P.J., and F ORT H OOD and S HAPIRO , JJ.

F ORD H OOD
, J.

Plaintiff, Mildred Jones, as the personal representative of th e estate of her husband, Amos Jones, appeals from the trial court order granting summary disp osition in favor of defendants, Botsford Continuing Care Corporation, Dr. Thomas Selznick, and Livonia Family Physicians, PC, in this medical malpractice and wrongful death lawsuit. Fo r the reasons set forth in this opinion, we reverse and remand.

I. FACTS

Amos Jones, an elderly man, was admitted to Botsford Continuin g Care (BCC), an extended care facility, for care following hospitalization for a stroke. As a result of the stroke, Jones had difficulty swallowing and so during his hospitalizati on, a percutaneous endoscopic gastrostomy (PEG) tube was surgically inserted through his abdo minal wall and into his stomach in order to provide nutrition. When Jones was admitted to BCC on November 12, 2007, the PEG-2- tube was in place. According to the hospital nursing progress notes, during his stay and while in an agitated state, Jones pulled out the PEG tube. The PEG tube was reinserted approximately eight hours later. Plaintiff’s complaint alleged that the PEG tube was improperly reinserted and that as a result, gastric contents and nutritional material wer e released outside Jones’s stomach and into his abdominal space, causing a massive infection that killed him.

Prior to filing suit, pursuan t to MCL 600.2912b(1), plaintiff mailed a notice of intent to
file claim to the individuals and entities later named as defen dants. The notice satisfied the requirements of MCL 600.2912b(4).

Pursuant to MCL 600.2912b(7), each recipient of the notice was required to “furnish to the claimant . . . a written response[.]” The statute requires that, like plaintiff’s notice, a potential defendant’s written res ponse contain four sections, o ne of which states “[t]he factual basis for the defense to the claim.” MCL 600.2912b(7)(a). How ever, defendants each failed to send a written response, thus viol ating this statutory mandate.

When plaintiff filed the complaint initiating this lawsuit, he r attorney attached two affidavits of merit as required by MCL 600.2912d. One of the a ffidavits attested to physician malpractice and was signed by Dr. Gregory Compton, who in his a ffidavit stated that at the
relevant time he “was a license d and practicing INTERNAL MEDICI NE and GERIATRIC
MEDICINE Doctor.” The other affi davit attested to nursing malp ractice and was signed by Amy Osterlink, who averred that she was an “R.N.” and “was . . . li censed and practicing nursing.”

As required by MCL 600.2912e, defendants filed affidavits of m eritorious defense. Two affidavits were filed in response to the claim of physician mal practice. The one submitted by BCC (who plaintiff alleged was liable for any negligence by Dr. Selznick under an agency theory) was signed by Dr. Alan Ne iberg, who averred that during the relevant time period he was
“board certified in internal med icine, and . . . devoted a majo rity of [his] professional time to the active clinical practice of my pr ofession of internal medicine. ” The one submitted on behalf of Dr. Selznick personally was si gned by Dr. Selznick himself and averred that he is “certified by the American Board of Family Practice and ha[s] a Certificate o f Added Qualification in
Geriatrics.”

BCC’s affidavit of meritorious defense filed in response to th e claim of nursing malpractice was signed by Marguerite Debello, who averred that she was “a registered nurse” and during the relevant time period “devoted a majority of my p rofessional time to the active clinical practice of my profession of nursing.”

MCL 600.2912d(1) and MCL 600.2912e(1) respectively require tha t the affidavits of merit and meritorious defense be “signed by a health profession al who the [party]’s attorney reasonably believes meets the requirements for an expert witnes s under section 2169.” Thus, for the affidavit as to Dr. Selznick to comply with MCL 600.2912d a nd MCL 600.2912e, the respective attorneys must have ha d a reasonable belief that the affiant, per the requirements of MCL 600.2169(1)(a), “specialize[d] a t the time of the occurrenc e that is the basis for the action-3- in the same specialty as the part y against whom or on whose beh alf the testimony is offered.” 1 MCL 600.2912(1)(a) does not apply to nurses, Cox v Flint Bd of Hosp Managers , 467 Mich 1, 18, 22; 651 NW2d 356 (2002), but MCL 600.2912(1)(b) does, as it applies to all health professionals. This provision re quires that during the year pr eceding the incident , the testimonial expert have devoted a majority of his or her professional time to “[t]he active clinical practice of the same health profession in which the [defendant] . . . is li censed.”

Defendants moved for summary disposition under MCR 2.116(C)(10 ), asserting that the affidavits filed by plaintiff’s counsel did not satisfy MCL 600 .2912d because the affiants did not meet the requirements of MCL 600.2169(1)(a) and (1)(b), respect ively, and that plaintiff’s counsel could not have had a reasonable belief that they did. BCC asserted that plaintiff’s affidavit of merit alleging nursing malpractice should have bee n signed by a licensed practical nurse (LPN) and that plaintiff’s counsel could not have reasona bly believed that a registered nurse (RN) could offer standard of care testimony. Both BCC an d Dr. Selznick asserted that plaintiff’s affidavit of merit a lleging physician malpractice s hould have been signed by a family practitioner and that plaintiff’ s counsel could not have had a reasonable belief that Dr. Compton had the proper qualifications.

The trial court ruled that the affiants did not satisfy the re quirements of MCL 600.2169(1) and, on this basis, dismissed the case. The court did not, however, address plaintiff’s argument that her c ounsel had a reasonable belief t hat the affiants met the testimonial requirements. 2 Plaintiff appeals from that ruling and BCC cross-appeals on t he grounds that the dismissal should have been with prejudice. 3

II. STANDARD OF REVIEW

A trial court’s ruling on a motion for summary disposition pre sents a question of law
reviewed de novo. Titan Ins Co v Hyten , 491 Mich 547, 553; 817 NW2d 562 (2012). Questions of statutory interpretation are also reviewed de novo including the statutory requirements for
affidavits of merit. Lucas v Awaad , 299 Mich App 345, 377; 830 NW2d 141 (2013). “Our goal

1 This requirement may also be met if the proffered expert has s pent the relevant period instructing students in the relev ant field at a health professi onal school or accredited residency or clinical research program. MCL 600.2169(b)( ii ). This aspect of the statute is not relevant to the
issues in this case.

2 In fact, the trial court indicated that it believed plaintiff’ s selection of Dr. Compton as his standard of care expert was r easonable, but it did not address the significance of that finding.

3 Before the case was appealed to this Court, plaintiff resubmit ted her respective affidavits, this time signed by a family practitioner and an LPN. The parties d ispute whether these constituted amended affidavits for purposes of MCR 2.112(L). While we do n ot subscribe to the dissent’s cursory treatment of this question, we need not address it ours elves given our conclusion that the originally filed affidav its were sufficient.-4- when interpreting and applying statutes or court rules is to gi ve effect to the plain meaning of the
text.” Ligons v Crittenton Hosp , 490 Mich 61, 70; 803 NW2d 271 (2011).

III. ANALYSIS

Whether an expert may provide standard of care testimony at tr ial is governed by MCL 600.2169. However, whether an affidavit of merit signed by an expert is adequate is governed by MCL 600.2912d. This provision requires that plaintiff’s cou nsel “reasonably believes” that the affiant “meets the requirements of MCL 600.2169[,]” not tha t the affiant actually meet those requirements for purposes of trial testimony. “The Legislature ’s rationale for this disparity is, without doubt, traceable to the f act that until a civil action is underway, no discovery is available. See MCR 2.302(A)(1).” Grossman v Brown , 470 Mich 593, 599; 685 NW2d 198 (2004).

Both this Court and the Supreme Court have been careful to dis tinguish these standards and to recognize that “at trial the standard is more demanding because the statute states that a
witness ‘ shall not give expert testimony’ unless the expert ‘meets the [listed] criteria’ in MCL 600.2169(1).” Id . (Emphasis added). By contrast, the issue for purposes of MC L 600.2912d is not whether the expert signing the affidavit of merit may ultim ately testify at trial. The controlling question under MCL 600.2912d is whether plaintiff’s counsel had a reasonable belief that the affiant would qualify. T he fact that the Legislature used the “reasonable belief” language demonstrates that there will be cases in which counsel had such a reasonable belief even though the expert is ultimat ely shown not to meet the crit eria of MCL 600.2169(1).

In Brown v Hayes , 477 Mich 966; 724 NW2d 470 (2006), the Supreme Court reiterat ed this point. It concluded that even where the expert in questio n did not qualify under MCL 600.2169, the affidavit should not be stricken where counsel ha d a reasonable belief that the expert did qualify. Id . Indeed, in Brown , the attorney had not made an error of fact (as in

Grossman ), but had wrongly but reasonably con strued the statutory requi rements. Id

.
This Court has similarly observed the differing tests between an expert’s qualification to actually testify at trial and the reasonable belief of counsel at the affidavit stage. In McElhaney v Harper-Hutzel Hosp , 269 Mich App 488, 497-498; 711 NW2d 795 (2006), we held that plaintiff’s expert did not quali fy under the statute and so sho uld be stricken from the witness list. However, as to the propriety of the affidavit of merit signed b y that expert as to alleged malpractice by a nurse midwife, we concluded that “plaintiff’s attorney’s belief that an obstetrician/gynecologist met the requirements for an expert wi tness under § 2169 was
reasonable.” Id . at 495-496. Thus, the issue is not whether the attorney’s ju dgment proved to be incorrect, but rather whether h is belief, though erroneous in h indsight, was reasonable at the
time.

In light of these principles, we now review the trial court’s conclusion that the affidavits of merit filed with plaintiff’s complaint did not comply with M CL 600.2912d. We will address separately the nursing affidavit of merit and the physician aff idavit of merit. Plaintiff’s claims against BCC are based upon the actions of two separate agents, i.e., the relevant nurse(s) and its staff physician, Dr. Selznick. P laintiff’s claims against Dr. Selznick and his practice are based solely upon his individual actions.-5- A. NURSING MALPRACTICE

As to the claims of nursing malpractice, we conclude that the trial court erred because it was not unreasonable for plainti ff’s counsel to obtain an affid avit of merit from an RN.

BCC’s argument that the case must be dismissed rests first and foremost on its assertions that the caregiver who reinserted the PEG tube was an LPN and t hat this information was available in the medical records. However, defendant has offer ed no evidence that this assertion is true. Indeed, a review of the medical records makes clear t hat the relevant caregiver is not identified as an LPN nor by name.

BCC’s sole basis for its assertion is a single page of handwri tten nursing notes dated November 15, 2007, much of which is illegible. There is a note timed at 12:00 a.m. that appears to have been signed by an LPN, al beit with an illegible signatu re. BCC claims in its brief that this nurse reinserted the PEG tube. However, this assertion is simply not supported by the nursing notes, insofar as they can be deciphered, or by any oth er proofs or affidavits. Significantly, the 12:00 a.m. note does not say that the nurse on duty then reinserted the tube. Rather, reinsertion of the PEG t ube is first referenced in a nu rsing note written eight hours later, at 8:00 a.m., in which a different author writes, “PEG tube rep laced.” The 8:00 a.m. note is signed, but the signature is illegible and clearly does not con tain a notation as to whether the person making the entry is an LPN or RN. It is also readily ap parent upon observation of the
8:00 a.m. note that it was not wri tten by the same individual w ho wrote the 12:00 a.m. note. 4

Even if we were to accept as true BCC’s unsupported assertion as to the identity of the relevant caregiver, a proposition wholly inconsistent with our standard of review, it would not alter the outcome of this appeal because plaintiff’s attorney h ad a reasonable belief that the affiant could testify.

First, given the limited evidence available at the time the af fidavit of merit was filed, it
would have been reasonable for plaintiff’s counsel to have conc luded that the relevant nurse was an RN. As stated by our Supreme Court in Grossman , 470 Mich at 599-601, when determining the reasonableness of an attorney ’s belief at the affidavit of merit stage, we look to the resources available to that attorney at the time the affidavit was prepar ed. As just noted, the medical records did not provide the relevant information. Moreover, BC C never complied with its statutory duty to respond to pla intiff’s notice of intent to fi le claim with a written statement providing “[t]he factual basis for the defense to the claim” in which it presumably would have

4 The next nursing note was written at 2:15 p.m. on the same day . The signature of the note’s author is again illegible and again no medical title appears. It states that the patient’s family visited and found the patient short of breath. The 2:15 p.m. n ote’s author writes that he or she then placed a call to a Physician Assistant who did not answer. He or she then advised the nursing supervisor on the unit who directed that Jones be trans ferred to the hospital emergency department. According to the note, at that time, Jones was “no [t] really responding.”-6- identified the caregiver who reinserted the PEG tube and his or her qualifications. MCL 600.2912b(7)(a). Indeed, the reasonab leness of the belief that an RN could properly sign the affidavit of merit in this case is demonstrated by the fact tha t BCC’s affidavit of meritorious defense was signed by an RN, notan LPN. Given that BCC’s atto rneys, who (unlike plaintiff’s counsel) had full access to hospital staffing records and the r elevant caregivers, concluded that an RN was the proper affiant, it would certainly seem that the same judgment, when made earlier by plaintiff’s counsel with far l ess information, was a reasona ble one.

Second, we find reasonable plaintiff’s counsel’s legal conclus ion that an RN may offer standard of care testimony against an LPN. Whether an RN may u ltimately offer such testimony at trial is not before us and we do not decide that issue, but plaintiff’s counsel’s conclusion that an RN was a proper affiant, even if the relevant actor was an L PN, would not have been unreasonable given the fact that the issue has not been definit ively addressed and there is law that supports his conclusion.

Indeed, the statutory definiti ons of LPN and RN support this c onclusion, as does the relevant case law. Both RNs and LPNs are licensed in the “prac tice of nursing.” MCL 333.17201(1)(a), which defines t his practice , provides:

“Practice of nursing” means the systematic application of subs tantial specialized knowledge and skill, d erived from the biological, p hysical, and behavioral sciences to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health p rocesses or who require assistance in the maintenance of health and the prevent ion or management of illness, injury or disability.

The same section goes on to define the practice of an LPN and a n RN as follows:

(b) “Practice of nursing as a licensed practical nurse” or “l. p.n.” means that practice of nursing based on less comprehensive knowledge and skill than that required of a registered pr ofessional nurse and performed under the supervision of a registered pr ofessional nurse, physician or de ntist.

(c) “Registered professional nurse” or “r.n.” means an individ ual licensed under this article to engage in the practice of nursing which s cope of practice includes the teaching, direction, and supervision of less skill ed personnel in the performance of delega ted nursing activities.

Consistent with these definitions, MCL 333.17208 provides that “[t]he practice of nursing as a licensed practical nurse is a h ealth profession subfield of the practice of nursing.”

These statutory definitions make clear that any work that may be performed by LPNs may also be performed by RNs. Indeed, RNs can direct and supervise LPNs in the performance of their duties. Each is wholly engaged in the “practice of nu rsing” and neither has any specialty-7- training. 5 The only difference is the extent of their general training and authority. The situation appears analogous to that of a phys ician specialist as to a res ident physician in specialty training.

In Bahr v Harper-Grace Hosps , 448 Mich 135; 528 NW2d 170 (1995), the Supreme Court held that a physician who is a fully qualified specialist may, under MRE 702, testify as to the standard of care applicable to a resident physician training in that spe cialty. See also Gonzalez v St John Hosp & Med Center (On Recon)

, 275 Mich App 290; 739 NW2d 392 (2007).

In sum, we conclude that the trial court erred in dismissing t he claims against BCC that are based upon allegations of nursing malpractice. We reach th is conclusion for each of the following reasons: (a) there is a question of fact whether the nurse in question was an LPN or an RN; (b) given BCC’s failure to respond to the notice of intent and identify whether the nurse in question was an LPN or RN, that information was not reasonably available to plaintiff’s counsel when the complaint and affidavits of merit were filed, and; (c) it would have been reasonable for plaintiff’s counsel to conclude that an RN could offer testimon y as to an LPN.

B. PHYSICIAN MALPRACTICE

The claims of physician malprac tice apply to Dr. Selznick, his practice, and BCC through

agency.

As discussed earlier, the questi on before us is not whether Dr . Compton may offer standard of care testimony at tri al. The sole question is whet her at the time he prepared the affidavit of merit, plaintiff’s counsel reasonably believed tha t Dr. Compton met the requirements of MCL 600.2169(1)(a). Similar to our conclusions as to the nu rsing issue, we conclude that
counsel’s belief was reasonable and we find that there were bot h factual and legal grounds for
that belief.

Factually, plaintiff’s expert affiant attested that at the rel evant time, he was a specialist in two areas of medicine, one of whic h was geriatric medicine, and that more than 50% of his practice was in that specialty. Plaintiff’s counsel believed t hat at the relevant time, Dr. Selznick was also a specialist in geriatric medicine. Dr. Selznick now asserts that his only specialty is in family medicine and that he is not a specialist in geriatric me dicine. We conclude, however, that plaintiff’s counsel’s conclusion that Selznick was a geriatric specialist was a reasonable one, at least at the pre-suit stage.

First, Dr. Selznick’s professi onal biography on his own websit e affirmatively states that he is “board certified in . . . geriatrics.” We find it diffi cult to accept that a doctor may publicly advertise himself as having a particular specialty and then cla im that no one could have reasonably believed that hi s assertion was true.

Second, given that plaintiff was an elderly man in a nursing h ome, it would be reasonable for plaintiff’s counsel to have c oncluded that the one most rel evant specialty was geriatric

5 Unlike a nurse midwife or a nurse practitioner, neither an RN nor an LPN is within a “health profession specialty field.” MCL 333.16105(3).-8- medicine. Indeed, Dr. Selznick was the medical director of the nursing home, a position which one would reasonably conclude cou ld not be obtained by physicia ns who do not specialize in geriatric medicine.

Third, plaintiff’s notice of int ent made absolutely clear that plaintiff’s counsel believed that Dr. Selznick was a specialist in geriatric medicine and th at geriatric medicine was the specialty that he was practicing at the time in question. The notice further asserted that the relevant standard of care was the one applicable to geriatric m edicine specialists. Upon receipt of the notice of intent, Dr. Selznick had a statutory duty to r espond with “a written response that contains a statement of each of the following: (a) The factual basis for the defense to the claim [and] (b) The standard of practice or care that the health prof essional . . . claims to be applicable to the action[.]” MCL 600.2912b(7). Had Dr. Selznick complied with this mandate and had he actually asserted what he now claims, i.e., that he is not a ge riatric medicine specialist, plaintiff’s counsel would have filed an affidavit from a physician whose sp ecialty qualifications matched those claimed by Dr. Selznick. Failure to have provided the ma ndatory response, while not an active assertion of agreement with plaintiff’s understanding of the relevant expertise and, thus, not a formal admission, surely provides an additional reason (a long with Dr. Sel znick’s website claims and his position as medical director of a geriatric nurs ing home) for plaintiff’s counsel to have reasonably concluded that Dr . Selznick is a specialist in geriatric medicine. 6

Dr. Selznick does not dispute th at he has special training and experience in geriatric medicine. He also does not dispute that he has a certificate o f added qualification in geriatric medicine. Nevertheless, he asserts that this is not the equiva lent of a board certification. Indeed, he appears to assert that there is no such thing as a specialty in geriatric medicine and that any
conclusion that there is such a s pecialty is unreasonable. We disagree.

In the decade following the passage of 1993 PA 78, many issues arose concerning the exact nature of the requirements it adopted in medical malpract ice cases. Many of these difficulties arose from questions about expert qualifications, particularly the issue of “matching” specialties. Most of these issues were resolved by our Supreme Court in Woodard v Custer , 476 Mich 545; 719 NW2d 842 (2006). However, some issues escaped co nclusive treatment in
Woodard . One of these remaining issues is what constitutes an expert “match” where a physician has a board certificati on, but also carries a certifi cate of added quali fication. This is particularly true when, at the time of the occurrence that is t he basis of the medical malpractice

6 The dissent, in footnote 6, suggests that Dr. Selznick did fil e a “response” to plaintiff’s notice of intent. The document to which the dissent refers is a one-p aragraph letter denying that Dr. Selznick bears any responsibility for Jones’s death and is sign ed by an untitled employee of “the Third Party Administrator for the Freedom Specialty Insurance C ompany.” This letter is clearly not a response within the meaning of MCL 600.2912b(7), which sp ecifically provides that a written response must comply with the requirements of MCL 600.2 912b(7)(a)-(d), which this letter does not even attempt to do. The letter is not a respon se to plaintiff’s notice of intent any more than a letter of accusation from a decedent’s family, with out the content required by MCL 2912b(4), is a “notice of intent.” Indeed, the letter is wholl y silent as to what specialty Dr. Selznick asserts he practices w hen treating infirm patients in the nursing home he directs.-9- action, the physician was practic ing in the specialty defined b y the certificate of added qualification.

Defendants rely on Halloran v Bhan , 470 Mich 572, 575-580; 683 NW2d 129 (2004), where the Supreme Court held that plaintiff’s medical expert sh ould not be permitted to testify at
trial 7 because, as a board-certified specialist in anesthesiology, he did not “match” the qualifications of defendant, who was a board-certified speciali st in internal medicine, even though they each possessed certificates of additional qualifica tion in critical care. However,
Halloran was decided two years before Woodard and the decision was circumscribed by the fact that all parties to the case agreed that a certificate of added qualification did not constitute a board certification. Thus, in Halloran , the legal import of a certi ficate of added qualification was not an issue in dispute. See id . at 575 (“The parties do not d ispute that the subspecialty certification [of added qualifi cation] is not ‘board certificat ion’ for purposes of [MCL 600.2169].”). The plaintiff argued that his expert, who by the parties’ agreement was only board certified in anesthesiology, should be permitted to testify aga inst an internal medicine specialist simply because the case arose in a hospital’s critical care uni t and the parties shared a “subspecialty” by virtue of their matching certificates of adde d qualifications. Id . at 575-576. All three Court of Appeals judges concluded as a matter of law that “critical care medicine” cannot be considered a specialtybecause, as the parties agreed , there is no board certification is
available in it. 8 Halloran v Bhan , unpublished opinion per curiam of the Court of Appeals, issued March 8, 2002 (Docket No. 224548), p 2; (H OEKSTRA
, J., dissenting), p 4. The majority concluded that “[b]ecause there is no board certification for c ritical care medicine, the last sentence of § 2169(1)(a) does not ap ply to the present case.” Id . at p 3. The majority therefore held that the requirement for s pecialized expert testimony did not apply at all. The dissent agreed that critical care medicine is a not a specialty, but co ncluded that the specialty expert requirement still applied, thus requiring a “match” for defenda nt doctor’s board certified specialty in internal medicine. Id . at p 4. The Supreme Court essentially adopted the analysis o f the dissenting Court of Appeals judge, noting that “[t]he parti es do not dispute that the subspecialty certification is not ‘board certification’ for pur poses of the statute.” Halloran , 470 Mich at 575. Accordingly, Halloran concluded that defendant’s only specialty was internal medicine and that the plaintiff’s expert, whose only specialty was anesthesiology, could not testify at trial as t o standard of care.

Had Halloran been the last word on the question, we would agree with defend ants that plaintiff’s counsel could not hav e concluded that geriatric med icine is a specialty and that both defendants’ and plaintiff’s affi ants are board-certified specia lists in that field. However,
Halloran was not the last word. In 2006, the Supreme Court decided Woodard along with its companion case, Hamilton v Kuligowski

.

7 There was no challenge to the affidavit of merit and so the is sue of counsel’s reasonable belief
was not addressed in Halloran

.

8 While this Court and the Supreme Court have often used the ter m “subspecialty,” it is worth noting that the term is never used in the statute and it may be that the use of this non-statutory term underlies some of the analytical challenges.-10- Woodard substantially changed the landscape in terms of what constitut es a specialty for purposes of MCL 600.2169(1)(a) and t he way in which certificate s of added qualification at to be
construed.

First, Woodard held that “a certificate of sp ecial qualifications . . . cons titutes a board
certificate.” Woodard , 476 Mich at 565. Thus, contrary to the parties’ agreement in Halloran , a certificate of special or added qua lification constitutes a “bo ard certification.”

Second, Woodard held that “a ‘specialist’ is so meone who can become board certi fied . . . . [And, therefore] if the defe ndant’s physician practices in a particular branch of medicine or surgery in which one can potentially become board certified, th e plaintiff’s expert must practice or teach the same particular bra nch of medicine or surgery.” Id . at 561-562. Thus , if a defendant has the training and experience necessary to qualify for a cert ificate of special qualification, he is a specialist in that field. Pu tting it more directly, the Cour t held that “[a] subs pecialty, although a more particularized specialty, is nevertheless a specialty.” Id . at 562.

Third, Woodard held that where a defendant has multiple specialties, a testif ying expert must only “match the one most rel evant standard o f practice or care—the specialt y engaged in by the defendant physician during the course of the alleged malpra ctice, and, if the defendant physician is board certified in th at specialty, the plaintiff’s expert must also be board certified in that specialty.” Id . at 560. To put it in the form of a syllogism, Woodard tells us that:

a. a certificate of speci al qualificati on is a board certification ; b. thus, a certificate of special qualification in geriatric medic ine is a board certification in geriatric medicine;

c. since board certification in geriatric medicine is available to physicians with the necessary training and experience, ger iatric medicine is a spec ialty;

d. if Dr. Selznick, who is board certified in both family medicine and geriatric medicine, was practicing geriatric medicine at the time this case arose, then the “one most relevant specialty” is geriatric medicine and it is that one specialty t hat plaintiff’s expert must match;

e. both Dr. Selznick and plaintiff’s expert a ffiant are board cert ified in the one most relevant specialty, i.e., geri atric medicine.

Having laid out this reasoning, we still decline to reach the question whether Dr. Compton may testify at trial regarding standard of care. Halloran has not been explicitly overruled and we leave it to the Supreme Court to determine whe ther and to what extent
Woodard did so. 9

9 The Woodard majority made little reference to Halloran , citing it only twice—once in
reference to the de novo standard of review for statutory inter pretation questions, and once for-11- Moreover, Woodard presents a somewhat different f actual situation than that in t he present case. In that case, the Court concluded that a physici an who is board certified in pediatrics may not testify reg arding a physician who is board c ertified in pediatrics and also has a certificate of added qualificatio n in pediatric critical care w here the action arose in the context of care in a pediatric special care unit. Id . at 575-577. In the companion case, Hamilton , the Court held that an expert who was board certified in internal medicin e and had a certificate of special qualifications in infectious disease (and spent more than 50% o f his time practicing infectious disease) could not testify against a physician who was also boa rd certified in internal medicine
where the action arose in the cont ext of “ordinary” internal me dicine. Id . at 577-578. Neither of those cases involved the precise circumstances we are presented with here—where both doctors are board certified in geriatrics and the relevant area of prac tice is geriatrics, but their geriatric certifications were issued by different boards. 10

We conclude that plaintiff’s affidavit of merit as to Dr. Selz nick satisfied MCL 600.2912d. Our holding is limited, however, to that statute an d the sufficiency of the affidavit of merit. We do not reach the question whether this expert may ul timately offer standard of care testimony at trial under MCL 600.2169 and respectfully suggest that the Supreme Court address this broader and more significant issue in an appropriate case.

For the same reason, we also deny BCC’s motion to dismiss the claims against it based on allegations of physician malpractice. Indeed, the outcome i s even clearer cut as to BCC, given that BCC’s relevant affida vit of meritorious defense was signed by a physician who possessed only an internal medicine board certification, and no certification in either geriatric or family medicine. While plaintiff cannot have relied on this su bsequently filed affidavit, the fact that BCC’s counsel, who had access to greater information, conc luded that a family medicine specialist was not required sugge sts that plaintiff’s counsel’s conclusion was reasonable.

the principal that if the defendant is board certified in the r elevant specialty, the expert must also
be board certified in it. Woodard , 476 Mich at 557, 562.

10 The problem is further complicated by the fact that another re cognized certifying body, the American Board of Physician Specialties, certifies doctors in g eriatric medicine directly rather
than as a certificate of additio nal qualification. Geriatrics is recognized as a specialty by several certifying entities. The American Board of Physician Specialti es lists geriatric medicine as a fully separate specialty. See American Board of Physician Spec ialties, Geriatric Medicine <www.abpsus.org/geriatric-medi cine> (accessed March 23, 2015). And, as the Supreme Court
noted in Woodard , 476 Mich at 565, “nothing in § 2169(1)(a) limits the meaning of board certificate to certificates . . . recognized by the American Bo ard of Medical Speci alties or . . . the American Osteopathic Association.” The statute contains no requirement that the physiciancertifying organizations be identical.-12- IV. CONCLUSION

For the reasons discussed herein, the affidavits of merit file d by plaintiff’s counsel complied with MCL 600.2912d. Accordingly, we reverse and reman d for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Karen Fort Hood /s/ Douglas B. Shapiro