Opinion
357931
05-25-2023
ESTATE OF LAMARR GREEN, by JULIE BRESKO, Personal Representative, Plaintiff-Appellee, v. BASHAR YALDO, M.D., Defendant, and SHAHRZAD ABBASSI-RAHBAR and ST. JOSEPH MERCY-OAKLAND, Defendants-Appellants.
UNPUBLISHED
Oakland Circuit Court LC No. 2020-179077-NH
Before: Cavanagh, P.J., and K. F. Kelly and Garrett, JJ.
PER CURIAM.
Defendants Shahrzad Abbassi-Rahbar (Dr. Abbassi) and St. Joseph Mercy-Oakland (St. Joseph) appeal by leave granted the order of the trial court denying their motion for summary disposition under MCR 2.116(C)(10). Because we agree that plaintiff's expert witness was not qualified to testify against Dr. Abbassi, we reverse the trial court's order as it relates to that issue. In all other respects, we affirm.
Estate of Green v Yaldo, unpublished order of the Court of Appeals, entered December 1, 2021 (Docket No. 357931).
I. BASIC FACTS AND PROCEDURAL HISTORY
The decedent, LaMarr Green, was referred to defendant Bashar Yaldo, M.D., a board-certified general surgeon, for treatment of a bilateral inguinal hernia in 2017. Dr. Yaldo performed a robotic bilateral inguinal hernia repair at St. Joseph on February 2, 2018, and Green was discharged the same day. On the evening of February 5, 2018, Green returned to St. Joseph's with complaints of abdominal pain. He also reported throat discomfort, his recent hernia surgery, and a lack of bowel movements for four to five days. An x-ray revealed a possible early or partial small bowel obstruction, and Green was admitted to the hospital. Despite limited periods of improvement, Green's condition deteriorated and he passed away approximately two weeks later.
Plaintiff initiated this action alleging medical malpractice by Dr. Yaldo and Dr. Abbassi, who was then a resident in St. Joseph's general surgery program and participated in Green's treatment as part of the surgical critical care team. St. Joseph was named as a defendant because it "affirmatively held itself out as the employer of, and responsible for the acts or non-actions of" Dr. Yaldo and Dr. Abbassi.
Defendants moved for summary disposition under MCR 2.116(C)(10), first arguing that St. Joseph could not be held vicariously liable because Dr. Yaldo was an independent contractor, and plaintiff did not have any evidence supporting an ostensible agency theory. Defendants also sought summary disposition of claims related to Dr. Abbassi's treatment because plaintiff's proposed expert, Dr. Jason Nirgiotis, was not qualified to testify regarding Dr. Abbassi's specialty. The trial court denied defendants' motion, reasoning that questions of fact existed regarding Dr. Yaldo's ostensible agency and Dr. Abbassi's specialty. This appeal followed.
II. STANDARD OF REVIEW
We review a trial court's ruling decision on a motion for summary disposition de novo. El-Khalil v Oakwood Healthcare, Inc, 504 Mich. 152, 159; 934 N.W.2d 665 (2019).
A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. [Trueblood Estate v P&G Apartments, LLC, 327 Mich.App. 275, 284; 933 N.W.2d 732 (2019), quoting Maiden v Rozwood, 461 Mich. 109, 120; 597 N.W.2d 817 (1999).]
"A genuine issue of material fact exists when the record leaves open an issue upon which reasonable minds might differ." El-Khalil, 504 Mich. at 160 (quotation marks and citation omitted).
III. OSTENSIBLE AGENCY
Defendants argue the trial court erred when it denied summary disposition in their favor regarding the claims arising from Dr. Yaldo's treatment because Green and Dr. Yaldo had a physician-patient relationship before Green's February 5, 2018 hospitalization, which precluded a finding of ostensible agency. Defendants also assert that plaintiff failed to present evidence demonstrating that Green formed a reasonable belief regarding Dr. Yaldo's agency or that St. Joseph did anything to hold out Dr. Yaldo as its agent. We disagree.
"Generally, Michigan law will impose liability upon a defendant only for his or her own acts of negligence, not the tortious conduct of others." Laster v Henry Ford Health Sys, 316 Mich.App. 726, 734; 892 N.W.2d 442 (2016). But in a medical malpractice action, a hospital can be held liable for the negligence of its employees under a theory of respondeat superior or its independent contractors under an ostensible agency theory. See id. at 734-737.
In Grewe v Mt Clemens Gen Hosp, 404 Mich. 240, 253-255; 273 N.W.2d 429 (1978), the Michigan Supreme Court concluded that the jury in that case was free to find the defendant hospital liable for the conduct of an independent contractor because the plaintiff looked to the hospital for treatment, there was no evidence of a preexisting relationship between the plaintiff and those who treated him, nor was there record evidence that would have put the plaintiff on notice that the independent contractor at issue was not an employee of the hospital. The Court observed:
Generally speaking, a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and merely uses the hospital's facilities to render treatment to his patients. However, if the individual looked to the hospital to provide him with medical treatment and there has been a representation by the hospital that medical treatment would be afforded by physicians working therein, an agency by estoppel can be found.
In our view, the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems. A relevant factor in this determination involves resolution of the question of whether the hospital provided the plaintiff with [the independent contractor] or whether the plaintiff and [the independent contractor] had a patient-physician relationship independent of the hospital setting. [Grewe, 404 Mich. at 250-251 (citations omitted).]
The Court then considered caselaw from other jurisdictions, noting a California appellate court's articulation of three elements required for a finding of ostensible agency particularly useful: (1) the patient must have a reasonable belief regarding the ostensible agent's authority; (2) that belief must be generated by an act or neglect by the alleged principal; and (3) the patient relying on the ostensible agency is not guilty of negligence. Id. at 252-253, citing Stanhope v Los Angeles College of Chiropractic, 54 Cal App 2d 141 (1942).
This Court later held that the three-part test cited in Grewe identified the controlling elements for establishing ostensible agency. See Chapa v St Mary's Hosp of Saginaw, 192 Mich.App. 29, 33-34; 480 N.W.2d 590 (1991). In Chapa, we also clarified that, despite the Michigan Supreme Court's initial reference to a "critical question," Grewe did not establish a rule of vicarious liability "merely because the patient 'looked to' the hospital at the time of admission . . . ." Id. at 32-33. The Chapa Court viewed Grewe's "critical question" as reflective of the case-specific facts at issue in Grewe, wherein the plaintiff was improperly treated by two on-call physicians with whom he had no previous relationship. Id. at 32. In contrast, the plaintiff in Chapa went to a hospital emergency room and initially received treatment from an on-call physician, but his inpatient care was entrusted to his family physician the next day. Id. at 30-31. The negligent acts were committed by the family physician and his associate several days later. Id. at 31, 33. The evidence was unclear as to whether the family doctor took over at the urging of the plaintiff's family or whether the doctor was provided by the hospital. Id. at 31, 33, 36. Under these circumstances, there was a question of fact regarding the existence of ostensible agency. See id. at 34 (affirming denial of summary disposition and motion for directed verdict).
As the we emphasized in Chapa, Grewe instructs that courts must focus on "[t]he reasonableness of the patient's belief in light of the representations and actions of the hospital . . . ." Id. at 34. However, "an independent relationship between a doctor and a patient that preceded a patient's admission to a hospital precludes a finding of ostensible agency, unless the acts or omissions of the hospital override the impressions created by the preexisting relationship and create a reasonable belief that the doctor is an agent of the hospital." Zdrojewski v Murphy, 254 Mich.App. 50, 66; 657 N.W.2d 721 (2002).
Here, Green was referred to Dr. Yaldo by another physician for treatment of his bilateral inguinal hernia, and Dr. Yaldo performed a robotic repair of the hernia on February 2, 2018, at St. Joseph. Thus, it is undisputed that Green had a physician-patient relationship with Dr. Yaldo before his admission to St. Joseph on February 5, 2018. The question is, therefore, whether St. Joseph's acts or omissions during Green's subsequent admission could result in ostensible agency, despite the preexisting relationship. Id.; see also Chapa, 192 Mich.App. at 33-34 (noting elements of ostensible agency).
The trial court did not err by concluding that the issue of ostensible agency presented a question of fact that precluded summary disposition. Although Green and Dr. Yaldo had an established relationship that predated Green's February 5, 2018 admission, there is no evidence that he sought treatment from Dr. Yaldo specifically any time after the February 2, 2018 surgery. Green presented to the St. Joseph emergency department three days after his surgery with complaints of abdominal pain, throat discomfort, and a lack of bowel movements for several days. He reported his recent hernia surgery during the admission process, but his medical records provide no indication that he attributed his symptoms to a postsurgical complication or that he asked to be seen by Dr. Yaldo. To the contrary, the records reflect Green's partner reported that "everything went well with this surgery and immediately post-op," until Green began vomiting the day after the surgery. Green's partner opined that Green was suffering from food poisoning and decided to take Green to the hospital at the recommendation of Green's primary care physician. Dr. Yaldo was later informed of Green's admission by a St. Joseph resident. Dr. Yaldo took part in Green's treatment thereafter and was designated within St. Joseph's medical records as Green's attending physician.
Viewing the evidence in the light most favorable to plaintiff, reasonable minds could disagree about the existence of ostensible agency. On one hand, Dr. Yaldo's status as Green's initial surgeon is strong evidence that Green should have viewed Dr. Yaldo as his own physician, rather than an agent of St. Joseph. On the other hand, the record suggests that Green and his partner did not think his symptoms were related to the surgery and they went to St. Joseph on the advice of Green's primary care physician-not because that was where the surgery was performed or because Green expected Dr. Yaldo would be at St. Joseph. Combined with the absence of any indication that Green or his family sought Dr. Yaldo's involvement in Green's care, a fact-finder could determine that Green had a reasonable belief that Dr. Yaldo was acting as St. Joseph's agent. The fact that Dr. Yaldo's postsurgical involvement in the case was instigated by a St. Joseph resident alerting Dr. Yaldo to Green's hospitalization is significant and could be accepted as evidence supporting the second element of ostensible agency.
Defendant asserts that the Michigan's Supreme Court's recent order in Markel v William Beaumont Hosp, __Mich__; __N.W.2d__ (2022), mandates reversal because, according to defendant, the Supreme Court held in that case where there is a preexisting relationship between the doctor and the plaintiff, ostensible agency cannot be present. We disagree that Markel stands for such a proposition. In Markel, the Supreme Court reversed this Court's opinion concluding we applied the wrong standard regarding ostensible agency under Grewe when we determined the plaintiff's belief that the doctor was an agent of the hospital was unreasonable because the plaintiff could not remember which doctor treated her. The Supreme Court found this to be an improper application of the case's holding because under Grewe, "the patient's belief that a doctor is the hospital's agent is reasonable unless dispelled in some manner by the hospital or the treating physician." Markel,__ Mich. at ___. Thus, the issue in Markel was not whether there was a preexisting relationship between the plaintiff and doctor, but rather whether the hospital did anything to dispel the plaintiff's reasonable belief that the doctor was not its agent. We decline to read Markel more broadly than this.
Accordingly, the trial court did not err when it concluded that the issue of ostensible agency presented a genuine issue of material fact, and we affirm the trial court's order in that regard.
IV. EXPERT QUALIFICATION UNDER MCL 600.2169
Next, defendants assert that plaintiff's standard-of-care expert was not qualified to testify against Dr. Abbassi. Defendants also contend that plaintiff was unable to establish a material question of fact regrading the standard of care applicable to Dr. Abbassi or her breach of it. We agree.
Because we agree that Dr. Nirgiotis did not satisfy the statutory criteria for qualification of an expert witness in a medical malpractice action, it is unnecessary for us to determine whether his opinions were sufficient to establish that Dr. Abbassi breached the standard of care.
A medical malpractice claim must generally be supported by expert testimony regarding the applicable standard of care and the defendant's breach of that standard. Elher v Misra, 499 Mich. 11, 21; 878 N.W.2d 790 (2016). MCL 600.2169(1) outlines the requirements a proposed expert must meet to be qualified to provide standard-of-care testimony in a medical malpractice action. Rock v Crocker, 499 Mich. 247, 260; 884 N.W.2d 227 (2016). In pertinent part, the statute provides that the expert must be a licensed health professional meeting the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony
is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), 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.
(c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, 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) Active clinical practice as a general practitioner.
(ii) 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. [MCL 600.2169(1)(a) through (c)(ii).]
"[T]he plaintiff's expert witness must match the one most relevant standard of practice or care-the specialty engaged in by the defendant physician during the course of the alleged malpractice, and, if the defendant physician is board certified in that specialty, the plaintiff's expert must also be board certified in that specialty." Woodard v Custer, 476 Mich. 545, 560; 719 N.W.2d 842 (2006). A specialist is "somebody who can potentially become board certified," though board certification was not required to be deemed a specialist, while a "specialty" refers to "a particular branch of medicine or surgery in which one can potentially become board certified." Id. at 560-561. And if the defendant physician specializes in a subspecialty, so too must the proposed expert in order to satisfy the "same specialty" requirement in MCL 600.2169(1)(a). Id. at 562.
In Reeves v Carson City Hosp (On Remand), 274 Mich.App. 622, 623; 736 N.W.2d 284 (2007), the plaintiffs sued a physician who treated the plaintiff patient in an emergency room setting. Although the defendant held a board certification in family medicine, the plaintiffs relied on an expert who was board-certified in emergency medicine. Id. The plaintiffs reasoned that their expert was qualified because the defendant was practicing emergency medicine at the relevant time, rendering her family medicine credentials irrelevant. Id. at 624. We agreed, noting that the defendant was practicing outside the field of her board certification at the time of the alleged malpractice, and the pertinent specialty was dictated by "the specialty engaged in by the defendant physician during the course of the alleged malpractice . . . ." Id. at 628 (quotation marks and citation omitted). Because the defendant was practicing emergency medicine at the time of the alleged malpractice and could potentially become board-certified in that specialty, this Court held that she was a specialist in emergency medicine and that the plaintiff's expert must also be a specialist in emergency medicine to satisfy MCL 600.2169. Reeves, 274 Mich.App. at 630.
In Gonzalez v St John Hosp & Med Ctr (On Reconsideration), 275 Mich.App. 290; 739 N.W.2d 392 (2007), this Court considered how the same specialty requirement applied to a resident. We noted that the definition of a specialist identified by the Michigan Supreme Court in Woodard referred to a physician, "which necessarily includes those physicians who are also residents." Id. at 298. Consequently, we held that "those physicians who are residents and limit their training to a particular branch of medicine or surgery and who can potentially become board-certified in that specialty are specialists for purposes of the analysis under MCL 600.2169(1)." Id. at 299.
Summarizing the foregoing, the Gonzalez Court explained:
Essentially, one must look to the area of practice the plaintiff challenges in order to determine who has the capacity to offer an opinion regarding standard of care. There are three possibilities. First, if the area of practice being challenged is general practice and is not a specialty, then the plaintiff must offer qualifying testimony from a qualified general practitioner practicing in general practice pursuant to MCL 600.2169(1)(c). Second, if the area of practice being challenged is a specialty and the defendant physician is board-certified in the specialty that is being challenged, then MCL 600.2169(1)(a) is implicated and the plaintiff must offer qualifying testimony from a qualified practitioner who is also board-certified in the challenged area of practice.
The third situation is not as straightforward as the first two. It is a hybrid situation that is presented if the defendant physician is not board-certified in the challenged area of practice but is practicing within a specialty. This situation existed in Reeves, supra, where the area of practice being challenged was emergency medicine and the defendant physician was not board-certified in emergency medicine. Reeves, supra at 623. The situation is also present in the instant case where the area of practice plaintiff challenges is general surgery and defendant physician is not board-certified in general surgery. The fact that the defendant physician in Reeves was board-certified in family medicine and defendant physician here is not board-certified in any specialty is made moot by the Woodard's [sic] Court's explicit definition of a "specialist" as" somebody who can potentially become board certified." Woodard, supra at 561-562. Because [the defendant resident] clearly meets Woodard's definition of "specialist," he does not fall under MCL 600.2169(1)(c), but rather MCL 600.2169(1)(a). Hence, for purposes of a matching specialty analysis as required by MCL 600.2169(1)(a) and Tate, supra, there is no difference between a defendant physician who is board-certified in a specialty but is practicing outside that specialty at the time of the alleged malpractice and a physician, like [the defendant resident], "who can potentially become board certified" and is practicing in a specialty but is not board-certified in that specialty. [Id. at 302-303.]
Here, Dr. Abbassi was a resident in St. Joseph's general surgery program. But during the period of Green's hospitalization, Dr. Abbassi was in the midst of a short-term rotation in the surgical critical care service-a requirement of the general surgery program-and her involvement in Green's care was strictly in that capacity. General surgery and surgical critical care are distinct specialties for purposes of MCL 600.2169(1) because they are "particular branch[es] of medicine or surgery in which one can potentially become board certified." Woodard, 476 Mich. at 561 (emphasis added).
Under Reeves, the fact that Dr. Abbassi was not actually pursuing board certification in surgical critical care is irrelevant because it is a specialty in which Dr. Abbassi could potentially obtain a board certification, as well as the specialty in which Dr. Abbassi was practicing at the time of the occurrence. See Reeves, 274 Mich.App. at 629-630. Nor is her status as a resident relevant, as a specialist need not be board-certified. See Woodard, 476 Mich. at 561; Gonzalez, 275 Mich.App. at 298-299. Thus, the trial court erred when it denied defendant's motion for summary disposition as to those claims arising from Dr. Abbassi's treatment on the basis of evidence indicating that Dr. Abbassi practiced in both surgical critical care and general surgery. Woodard, Gonzalez, and Reeves compel the conclusion that Dr. Abbassi was a specialist practicing in surgical critical care at the time of the alleged malpractice. Dr. Nirgiotis was not a specialist in surgical critical care and was, therefore, not qualified under MCL 600.2169(1)(a) to testify about the standard of care applicable to Dr. Abbassi. And because plaintiff did not have an expert who met the requirements of MCL 600.2169(1)(a) relative to Dr. Abbassi, the trial court should have granted summary disposition in favor of defendants with respect to claims arising from her treatment.
Moreover, even if Dr. Abbassi were a general surgery specialist, Dr. Nirgiotis similarly was not qualified to testify regarding that specialty. Dr. Nirgiotis is board-certified in general surgery and has a special certificate of qualification in the subspecialty of pediatric surgery. His affidavit of merit indicated that he spent the majority of his professional time "in the active clinical practice and/or instruction of general surgery" in the year preceding the events at issue in this case. Yet his deposition testimony suggests otherwise. Dr. Nirgiotis testified that he was employed as an associate professor in the pediatric department of Texas Tech University Health Sciences Center, rather than the general surgery department. He agreed that the majority of his professional time was spent treating pediatric patients, that more than half of his patients had yet to reach puberty, and at least 90% to 95% of his patients were under the age of 18. He opined, however, that the difference between a pediatric and adult patient was a matter of semantics.
A certificate of special qualification qualifies as board certification for purposes of MCL 600.2169(1)(a). Woodard, 476 Mich. at 565.
In addition to the "same specialty" requirements of MCL 600.2169(1)(a),
MCL 600.2169(1)(b) provides that if the defendant physician is a specialist, the expert witness must have "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 . . . the active clinical practice of that specialty
[or][t]he instruction of students in an . . . accredited health professional school or accredited residency or clinical research program in the same specialty." [Woodard, 476 Mich. at 565 (alterations in original).]
In Hamilton v Kuligowski, the companion case to Woodard, the defendant was a board-certified specialist in general internal medicine. Id. at 556. The plaintiff's expert possessed the same board certification, but devoted "a majority of his professional time to treating infectious diseases, a subspecialty of internal medicine." Id. Because the expert did not practice or teach general internal medicine during the relevant time frame, the Court concluded that he was not a qualified expert under MCL 600.2169(1)(b). Id. at 578. The same is true here. While Dr. Nirgiotis may be a specialist in general surgery for purposes of MCL 600.2169(1)(a), he spent the majority of his time practicing or teaching pediatric surgery, rather than general surgery. As such, he did not meet the statutory "same practice or instruction" requirement to provide expert testimony concerning general surgery. MCL 600.2169(1)(b).
Dr. Nirgiotis's opinion that the distinction between the two fields amounts to nothing more than semantics is unpersuasive. Even if we accepted Dr. Nirgiotis's position as true from a medical perspective, in the legal sense a specialty refers to "a particular branch of medicine or surgery in which one can potentially become board certified." Woodard, 476 Mich. at 561. A physician can obtain a certificate of special qualification in pediatric surgery as a subspecialty of general surgery, and "[a] subspecialty, although a more particularized specialty, is nevertheless a specialty." Id. at 562. Because Dr. Nirgiotis spent the majority of his professional time practicing or teaching the legally distinct specialty of pediatric surgery, he could not provide expert testimony regarding the standard of practice or care in general surgery. MCL 600.2169(1)(b); Woodard, 476 Mich. at 578. It was error, therefore, for the trial court to deny summary disposition without considering this challenge to Dr. Nirgiotis's qualifications.
Plaintiff argues that if this Court determines Dr. Nirgiotis is not qualified to testify at trial, the appropriate remedy is not summary disposition, but rather allowing plaintiff to obtain a new expert. Plaintiff contends that allowing the case to continue with a new expert is consistent with the statutory construct and intent of MCL 600.2912d, which requires a complaint to be accompanied by 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]." Plaintiff's position is unpersuasive because MCL 600.2912d is inapplicable in these circumstances.
In plaintiff's brief, she cites to MCL 600.2912e, which governs the requirements for a defendant's affidavit of meritorious defense. We presume plaintiff intended to cite MCL 600.2912d.
"Under Michigan's statutory medical malpractice procedure, plaintiff must obtain a medical expert at two different stages of the litigation-at the time the complaint is filed and at the time of trial." Grossman v Brown, 470 Mich. 593, 598; 685 N.W.2d 198 (2004). During the first stage, the Legislature established a more flexible reasonable-belief standard in recognition of the fact that the plaintiff's available information is limited before legal proceedings are commenced. Id. at 598-599. But by the time of trial, the rationale for such flexibility is eliminated by the pretrial discovery process. Id. at 599. Consequently, while a reasonable belief regarding an expert's qualification will suffice at the affidavit-of-merit stage, MCL 600.2169(1) unambiguously precludes testimony from an expert who does not satisfy the statutory qualification criteria. Id.
Plaintiff's complaint was filed in January 2020, and the initial scheduling order contemplated that all experts be named by December 2020, completion of discovery by January 2021, and trial in May 2021. The scheduling order dates were amended twice, extending the time for naming experts to March 2021, completion of discovery to April 2021, and trial to September 2021. Hospital defendants' dispositive motion was heard in July 2021, when the case had been pending for more than a year and less than three months remained before trial. Defendants' motion was not a challenge to plaintiff's affidavit of merit, but rather plaintiff's anticipated trial proofs. At this stage, a reasonable belief regarding Dr. Nirgiotis's qualifications was no longer sufficient to avoid dismissal. See Grossman, 470 Mich. at 599 (explaining that counsel's reasonable belief regarding an expert's qualification does not control whether the expert can testify at trial).
We affirm the trial court's order denying defendants' motion to the extent it denied summary disposition on the basis of a question of fact regarding ostensible agency. However, because plaintiff's standard-of-care expert was not qualified to testify against Dr. Abbassi, we reverse the trial court's order as it relates to claims arising from Dr. Abbassi's treatment and remand for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded. We do not retain jurisdiction. Neither party having fully prevailed, no costs may be taxed.
Garrett, J. (concurring in part and dissenting in part).
In a medical malpractice case, a "specialist" is "a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice." Woodard v Custer, 476 Mich. 545, 561; 719 N.W.2d 842 (2006), quoting Dorland's Illustrated Medical Dictionary (28th ed). A general surgery resident is not transformed into a "specialist" in surgical critical care simply by virtue of participation in a brief required rotation in the surgical intensive care unit (SICU). Therefore, I respectfully dissent from the majority's conclusion that defendant Shahrzad Abbassi -Rahbar (Dr. Abbassi) was a "specialist" in surgical critical care at the time of the alleged malpractice. Instead, I would conclude that Dr. Abbassi was a "specialist" in general surgery. Nevertheless, I am constrained to agree that plaintiffs proposed expert, Dr. Jason Nirgiotis, is not qualified to provide standard-of-care testimony against Dr. Abbassi under MCL 600.2169(1)(b), as interpreted by Woodard, because Dr. Nirgiotis spent the majority of his time practicing the distinct specialty of pediatric surgery in the year before the alleged malpractice in this case. For that reason, I concur in the majority's ultimate conclusion that defendants were entitled to summary disposition on plaintiff's claims arising out of Dr. Abbassi's treatment of the decedent, LaMarr Green. I also concur in the majority opinion in all other respects.
Any reference to "defendants" refers to Dr. Abbassi and St. Joseph Mercy-Oakland.
I. BASIC FACTS
Dr. Abbassi began her general surgery residency at St. Joseph Mercy-Oakland (SJMO) in 2015. The SJMO general surgery residency program requires residents to participate in several rotations in different specialties related to the practice of general surgery. On February 1, 2018, Dr. Abbassi began a scheduled two-month-long rotation in the SICU. The next day, Dr. Bashar Yaldo, a general surgeon, performed a hernia repair on Green, and Green was discharged the same day. Three days later, on February 5, 2018, Green presented to the emergency room at SJMO, reporting that he was vomiting and experiencing abdominal pain after the hernia operation. Green was admitted to the hospital and soon transferred to the SICU as his health declined.
During Green's nearly two-week stay in the SICU, he was cared for by several residents and attending physicians, including Dr. Abbassi. Dr. Yaldo also saw Green throughout his stay in the SICU and was listed as his attending physician on all progress notes. Dr. Yaldo performed a second surgery on Green on February 12, 2018, during which he discovered and addressed a small bowel obstruction. Throughout Dr. Abbassi's care of Green in the SICU, Dr. Abbassi worked directly with supervising physicians who were specialists in surgical critical care. Dr. Abbassi treated Green on at least six days during Green's time in the SICU until his unfortunate passing on February 19, 2018. According to Dr. Nirgiotis, Green's death certificate listed his causes of death as aspiration pneumonia, sepsis, and a small bowel obstruction due to an internal hernia.
Aspiration pneumonia is an "infection of the lungs caused by inhaling saliva, food, liquid, vomit and even small foreign objects," and sepsis is a "life-threatening medical emergency caused by [the] body's overwhelming response to an infection." Cleveland Clinic, Aspiration Pneumonia, <https://my.clevelandclinic.org/health/diseases/21954-aspiration-pneumonia> (accessed May 2, 2023); Cleveland Clinic, Sepsis, <https://my.clevelandclinic.org/health/diseases/12361-sepsis> (accessed May 2, 2023). Dr. Nirgiotis opined that the aspiration pneumonia ultimately led to sepsis.
In bringing suit against Dr. Abbassi, plaintiff alleged in relevant part that Dr. Abbassi breached the applicable standard of care when: (1) on February 8, 2018, she cut back on Green's antibiotics when he was in septic shock; (2) on February 10, 2018, she started Green on tube feeds when he had a bowel obstruction; and (3) on February 15, 2018, she stopped Green's intravenous therapy (IV) antibiotics when Green was at high risk for redeveloping sepsis. Attached to plaintiff's complaint was an affidavit of merit from Dr. Nirgiotis, a physician board-certified in general surgery and pediatric surgery. After discovery, defendants moved for summary disposition. With respect to Dr. Abbassi, defendants argued that Dr. Nirgiotis was not qualified to offer expert testimony on her alleged malpractice because Dr. Abbassi was practicing as a "specialist" in surgical critical care, and Dr. Nirgiotis does not specialize in that field. The trial court denied summary disposition to Dr. Abbassi, but the majority reverses that decision, concluding that binding precedent "compel[s] the conclusion that Dr. Abbassi was a specialist practicing in surgical critical care at the time of the alleged malpractice." I depart from the majority on that holding.
Specifically, Dr. Nirgiotis is board-certified in the specialty of general surgery, with a certificate of special competency in the subspecialty of pediatric surgery. This certificate of special competency also constitutes a board certificate under MCL 600.2169(1)(a). See Woodard, 476 Mich. at 565. One must become certified by the American Board of Surgery in general surgery before undergoing the required training for pediatric surgery certification. The American Board of Surgery, Pediatric Surgery, <https://www.absurgery.org/default.jsp?examoffered_ps> (accessed April 27, 2022).
II. LEGAL BACKGROUND AND ANALYSIS
The proper determination of the standard of care applicable to Dr. Abbassi's alleged conduct in this case turns on inconsistent caselaw interpreting the expert qualification statute for medical malpractice cases. Relying on Woodard, Gonzalez v St John Hosp & Med Ctr (On Reconsideration), 275 Mich.App. 290; 739 N.W.2d 392 (2007), and Reeves v Carson City Hosp (On Remand), 274 Mich.App. 622; 736 N.W.2d 284 (2007), the majority concludes that surgical critical care is the applicable standard of care to Dr. Abbassi.
In Woodard, our Supreme Court undertook a comprehensive review of MCL 600.2169(1), the statute governing the required qualifications of an expert witness in a medical malpractice action. In relevant part, the statute provides:
(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:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), 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.]
Beginning with § 2169(1)(a)'s "same specialty" requirement, Woodard explained that "if a defendant physician is a specialist, the plaintiffs expert witness must have specialized in the same specialty as the defendant physician at the time of the alleged malpractice." Woodard, 476 Mich. at 560-561. Turning to the dictionary, the Court approvingly cited a definition of "specialist" as "a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice." Id. at 561, quoting Dorland's Illustrated Medical Dictionary (28th ed). Considering this definition and the plain language of § 2169(1)(a), the Court concluded that a "specialist" did not have to be board certified. Id. at 561. Thus, the Court described a "specialty" as a "particular branch of medicine or surgery in which one can potentially become board certified." Id. (emphasis added). "Accordingly, if the defendant physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the plaintiffs expert must practice or teach the same particular branch of medicine or surgery." Id. at 561-562. The Court also held that "[a] subspecialty, although a more particularized specialty, is nevertheless a specialty," and that the "same specialty" requirement similarly applied to subspecialties. Id. at 562. Recognizing that a defendant physician may specialize in multiple areas, Woodard additionally held that "the plaintiffs expert witness must match the one most relevant standard of practice or care-the specialty engaged in by the defendant physician during the course of the alleged malpractice." Id. at 560.
Dr. Abbassi's involvement as a defendant in this case presents a wrinkle that was not decided in Woodard- how § 2169 applied to medical residents. This Court, in Gonzalez, addressed that situation. This Court first read Woodard as overruling prior precedent which held that residents are not specialists. Gonzalez, 275 Mich.App. at 299. But Gonzalez did not broadly hold that residents are specialists anytime they are practicing in a specific field of medicine. Rather, applying the definition of "specialist" from Woodard, Gonzalez explained that only those residents who "limit their training to a particular branch of medicine or surgery and who can potentially become board-certified in that specialty are specialists for purposes of the analysis under MCL 600.2169(1)." Id.
Reeves is the final case relied upon by the majority. As the majority notes, Reeves involved a medical malpractice suit against a board-certified family medicine doctor who treated the plaintiff in the emergency room at the time of the alleged malpractice. Reeves, 274 Mich.App. at 623. This Court explained that the defendant physician was practicing outside of her board-certification because she was working in the emergency room. Id. at 628. As a result, this Court determined that emergency medicine was the one most relevant standard of care applicable to the alleged malpractice. Id. The Court summarized its conclusion: "[B]ecause [the defendant physician] was practicing emergency medicine at the time of the alleged malpractice and potentially could obtain a board certification in emergency medicine, she was a 'specialist' in emergency medicine under the holding in Woodard. Thus, plaintiffs would need a specialist in emergency medicine to satisfy MCL 600.2169[.]" Id. at 630.
Relying on Reeves, the majority explains that "the fact that Dr. Abbassi was not actually pursuing board certification in surgical critical care is irrelevant because it is a specialty in which Dr. Abbassi could potentially obtain a board certification, as well as the specialty in which Dr. Abbassi was practicing at the time of the occurrence." I disagree with the majority because I would hold that, looking beyond the label of her rotation, Dr. Abbassi was practicing as a "specialist" in general surgery at the time of the alleged malpractice.
In opposing defendants' motion for summary disposition, plaintiff attached a booklet on certification for general surgery from the American Board of Surgery (ABS), the national certifying body for surgeons practicing in the United States. The ABS defines the scope of general surgery as "a discipline that requires knowledge of and responsibility for the preoperative, operative, and post-operative management of patients with a broad spectrum of diseases, including those which may require nonoperative, elective, or emergency surgical treatment." According to the ABS, a certified general surgeon should have broad knowledge and experience in surgical critical care, as well as the categories of "infection and antibiotic usage" and "metabolism and nutrition." The ABS, which also oversees the subspecialty of surgical critical care, defines that field as "a primary component of general surgery related to the care of patients with acute, life-threatening or potentially life-threatening surgical conditions." The allegations of malpractice against Dr. Abbassi involve her decisions about the provision of antibiotics and tube feeding to Green. While these tasks can fall within the practice of surgical critical care, they are also well within the scope of knowledge of a general surgeon. For instance, Dr. Abbassi testified that, in her training and experience, she had seen surgeons place orders for antibiotics. She also agreed that a surgeon should know what antibiotics to give a patient who turns septic. The malpractice allegations against Dr. Abbassi directly relate to the decision about whether to continue providing antibiotics to Green. As for the tube feeds, Dr. Abbassi claimed that the decision to start tube feeds was made by Dr. Amy Braddock, one of the general surgeons treating Green. This testimony is an implicit acknowledgement that the decision to start or stop tube feeds, even on a critically ill patient, falls within the scope of practice of a general surgeon. While Dr. Abbassi reported to surgical critical care specialists during her rotation in the SICU, she did so as a general surgery resident engaged in tasks common to the practice of general surgery. Neither the label of the rotation, nor the SICU setting, changes that fact. Thus, unlike the majority, I would hold that Dr. Abbassi was practicing as a "specialist" in general surgery during the course of the alleged malpractice.
American Board of Surgery, Specialty of Surgical Critical Care Defined, <https://www.absurgery.org/default.jsp?aboutsccdefined> (accessed May 2, 2023).
This conclusion is also consistent with Woodard and Gonzalez. At the time of the alleged malpractice, Dr. Abbassi was a third-year general surgery resident on her second week of a required rotation in the SICU, and pursuing board certification in general surgery. She limited her training to general surgery, received "advance training" in that field, and could "potentially become board certified" in that specialty. See Woodard, 476 Mich. at 561-562 (quotation marks and citation omitted). Thus, Woodard and its interpretation of "specialist" support that Dr. Abbassi was practicing as a "specialist" in general surgery. Furthermore, Gonzalez conditioned its extension of residents as "specialists" only to those residents who "limit their training to a particular branch of medicine or surgery and who can potentially become board-certified in that specialty." Gonzalez, 275 Mich.App. at 299. Importantly, in that case, it was "not disputed" as a factual matter that the defendant resident "was a third-year surgical resident practicing within that discrete specialty on the date of the occurrence." Id. at 297. Here, of course, the parties disagree whether Dr. Abbassi was practicing within the specialty that matched her residency program. Consistent with Gonzalez, Dr. Abbassi could not be considered a "specialist" in surgical critical care because she did not limit her training to that specialty. See id. at 299.
Because Dr. Abbassi was practicing as a "specialist" in general surgery, plaintiffs proposed expert must specialize in that field. See MCL 600.2169(1)(a). Dr. Nirgiotis is a board-certified physician in general surgery and thus satisfies § 2169(1)(a)'s "same specialty" requirement. That said, I agree with the majority that Dr. Nirgiotis is not qualified to offer testimony under § 2169(1)(b)'s majority-practice requirement as interpreted by Woodard. "[I]n order to be qualified to testify under § 2169(1)(b), the plaintiffs expert witness must have devoted a majority of his professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the specialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant specialty." Woodard, 476 Mich. at 566. That means the expert must have spent more than 50% of his professional time in the relevant specialty during the preceding year. Kiefer v Markley, 283 Mich.App. 555, 559; 769 N.W.2d 271 (2009). Crucially, Woodard held that "one cannot devote a 'majority' of one's professional time to more than one specialty." Woodard, 476 Mich. at 566.
As one of my colleagues has aptly noted, this interpretation makes little sense "because in reality there is a substantial overlap between the work of specialists and subspecialists." Higgins v Traill, unpublished per curiam opinion of the Court of Appeals, issued July 30, 2019 (Docket No. 343664) (Gleicher, J., concurring), p 8. "Woodard compels a contorted calculation of which specialty or subspecialty consumes the majority of an expert's time based on the notion that it is possible to practice only one thing at a time." Id. To that end, Dr. Nirgiotis, while primarily practicing the specialty of pediatric surgery, undoubtedly applied many of the skills and principles learned in his general surgery residency. Pediatric surgery is a subspecialty of general surgery, and thus, unsurprisingly, the two areas of medicine contain significant overlap. For instance, as Dr. Nirgiotis testified, there is often no functional difference between a surgical operation on an adolescent and an adult: "[t]hey're exactly the same type of surgery, the same procedure done, the same complications, the same risks."
Despite significant overlap in the skills used to practice general surgery and pediatric surgery, Woodard requires that we apportion a physician's time into separate, circumscribed buckets. Dr. Nirgiotis's deposition testimony definitively shows that, in the year preceding the alleged malpractice in this case, he spent a majority of his time practicing pediatric surgery. He admitted as much, testifying that more than 90 percent of his patients were under 18 years old, and a majority had not reached the age of puberty. Dr. Nirgiotis is employed in the pediatric department and works with pediatric residents; neither of the hospitals where Dr. Nirgiotis works even have a general surgery residency program. Because Dr. Nirgiotis did not devote a majority of his professional time to the practice or instruction of general surgery in the year preceding the alleged malpractice, he is not qualified to offer standard-of-care testimony against Dr. Abbassi. See MCL 600.2169(1)(b).
This case exemplifies why reexamination of our precedent and its interpretation of § 2169(1) is much needed. The result here-that a board-certified general surgeon with 30 years of experience is unqualified to offer expert testimony about alleged malpractice committed by a general surgery resident on a brief rotation in the SICU-makes little sense. Fortunately, our Supreme Court has recently granted leave to address, among several issues, "whether Woodard v Custer, 476 Mich. 545 (2006), was correctly decided and is consistent with the requirements of MCL 600.2169(1)" and if not, what test should apply. Selliman v Colton, 982 N.W.2d 396 (Mich, 2022); Stokes v Swofford, 982 N.W.2d 397 (Mich, 2022). It is my hope that the Court will adopt a more workable and practical test that is consistent with the plain language of MCL 600.2169(1).
III. CONCLUSION
I respectfully dissent from the majority's conclusion that Dr. Abbassi was practicing as a "specialist" in surgical critical care. In all other respects, I concur in the decision to affirm in part and reverse in part the trial court's order.