Submitted Aug. 10, 2005, at Lansing.

        Released for Publication March 31, 2006.

Page 796

        Worsham s&sVictor, P.C. (by Howard J. Victor and John J. Schutza), Farmington Hills, for the plaintiff.

        Kitch Drutchas Wagner DeNardiss&sValitutti (by Susan Healy Zitterman), Detroit, for the defendant.

        Before: SAAD, P.J., and HOEKSTRA and MARKEY, JJ.

        SAAD, P.J.

         I

        In this medical malpractice action, the dispositive question is whether, under MCL 600.2169, an obstetrician/gynecologist may testify about the standard of care applicable to a nurse midwife. Plaintiff claims that, during his mother's labor, the negligent actions of defendant's nurse midwife caused him mental retardation and other impairments. We hold that the trial court correctly granted summary disposition to defendant because plaintiff failed to establish a genuine issue of material fact regarding the standard of care applicable to a nurse midwife.

       Defendant [269 Mich.App. 490] contends that, regardless of whether plaintiff's experts could establish that defendant's midwife caused his injuries, as obstetricians/gynecologists, the experts were not qualified to offer testimony regarding the standard of practice of defendant's nurse midwife. Accordingly, defendant maintains that the trial court correctly granted summary disposition to defendant because plaintiff failed to establish a genuine issue of material fact by admissible evidence. In its cross-appeal, defendant says that the statutorily required affidavit of merit was insufficient because an obstetrician/gynecologist may not testify regarding a nurse midwife, and therefore plaintiff's claim was not properly initiated.

        II. Affidavit of Merit: Section 2912d(1)

       A medical malpractice claim may be brought against any licensed health care professional, which includes an individual licensed or registered under article 15 of the Public Health Code. MCL 600.2912; MCL 600.5838a(1); Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 422-423, 684 N.W.2d 864 (2004). A nurse midwife is a licensed health care professional under the Public Health Code, which defines "certified [269 Mich.App. 491] nurse midwife" as "an individual licensed as a registered professional nurse under part 172 who has been issued a specialty certification in the practice of nurse midwifery by the board of nursing under section 17210." MCL 333.2701(b). Section 17210, MCL 333.17210, provides that the Board of Nursing "may issue a specialty certification to a registered professional nurse who has advanced training beyond that required for initial licensure and who has demonstrated competency through examination or other evaluative processes and who practices in 1 of the following health profession specialty fields: nurse midwifery, nurse anesthetist, or nurse practitioner." A "registered professional nurse" is defined as "an individual licensed under this article to engage in the practice of nursing which scope of practice includes the teaching, direction, and supervision of less skilled personnel in the performance of delegated nursing activities." MCL 333.17201(1)(c); see Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 19, 651 N.W.2d 356 (2002).

       Defendant argues that plaintiff's affidavit of merit was defective and, thus, plaintiff failed to successfully initiate a medical malpractice claim. Section 2912d(1), MCL 600.2912d(1), provides that a plaintiff initiating a medical malpractice action "shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169." See also MCR 2.112(L); Geralds v. Munson Healthcare, 259 Mich.App. 225, 232, 673 N.W.2d 792 (2003). The affidavit of merit must include a statement regarding (1) the applicable standard of practice or care, (2) how the applicable standard of practice or care was breached by the health professional or health facility receiving the notice of intent to file a claim, (3) the actions that should have been taken or omitted by the [269 Mich.App. 492] health professional or health facility in order to have complied with the applicable standard of practice or care, and (4) the manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. MCL 600.2912d(1); see Cox, supra, p. 10, 651 N.W.2d 356.

        Section 2169(1), MCL 600.2169(1), governs expert witnesses offering testimony regarding the applicable standard of care. Halloran v. Bhan, 470 Mich. 572, 578 n. 6, 683 N.W.2d 129 (2004). Section 2169(1) provides that 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.

       (c) [269 Mich.App. 493] 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) (emphasis added); see Decker v. Flood, 248 Mich.App. 75, 81-82, 638 N.W.2d 163 (2001).]

        Our courts have interpreted the term "party," against whom testimony is offered, to encompass a hospital party that has been sued under a vicarious liability theory and its agents. See Nippa v. Botsford Gen. Hosp. (On Remand), 257 Mich.App. 387, 396, 668 N.W.2d 628 (2003).

         The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Halloran, supra, p. 577, 683 N.W.2d 129. The first step is to examine the plain language of the statute itself. In re MCI Telecom. Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). The Legislature is presumed to have intended the meaning it plainly expressed. Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002). If the statutory language is clear and unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed, and further judicial construction is not permitted. Atchison v. Atchison, 256 Mich.App. 531, 535, 664 N.W.2d 249 (2003).

       The parties agree that nurse midwives do not practice medicine. Accordingly, by the plain meaning of the terms of the statute, we find that § 2169(1)(a) and (c) [269 Mich.App. 494] does not apply because a nurse midwife is neither a specialist nor a general practitioner. Section 2169(1)(b), however, makes no qualification of its applicability and, therefore, must be considered to apply generally to all malpractice actions, including those initiated against nonphysicians. See Halloran, supra, p. 586, 683 N.W.2d 129 (Kelly, J., dissenting); Hamilton v. Kuligowski, 261 Mich.App. 608, 610-611, 684 N.W.2d 366 (2004). Specifically, subsection b(i) states that an expert witness must devote "a majority of his or her professional time" to the "active clinical practice of the same health profession " as the defendant. MCL 600.2169(1)(b)(i) (emphasis added); see Hamilton, supra, p. 610, 684 N.W.2d 366.

       The plain language of § 2912d indicates that an affidavit of merit is required in every medical malpractice [269 Mich.App. 495] action, including those initiated against nonphysicians. MCL 600.2912d(1). Pursuant to this section, the plaintiff's attorney must "reasonably believe[]" that the person signing the affidavit of merit "meets the requirements for an expert witness undersection 2169." Id.: see Grossman v. Brown, 470 Mich. 593, 599, 685 N.W.2d 198 (2004). In this action, plaintiff's experts must meet the requirements of § 2169(1)(b).

        Plaintiff's complaint alleged medical malpractice against defendant for the actions of its "doctors, nurses, a nursing midwife, and residents." Plaintiff attached an affidavit of merit executed by Dr. Ronald G. Zack, an obstetrician/gynecologist. The affidavit of merit focused on the standard of care breached by doctors or physicians and staff, and did not offer an opinion regarding the specific standard of care applicable to or breached by the nurse midwife. As discovery progressed, it became clear that plaintiff's claim of medical negligence focused primarily on the actions of defendant's nurse midwife. Although an obstetrician/gynecologist does not devote a majority of his or her time to the same health profession as a nurse midwife pursuant to § 2169(1)(b), plaintiff's attorney's belief that Dr. Zack would fulfill the requirements of § 2169 was at least reasonable at the time the complaint was filed because it was not until discovery was conducted that plaintiff narrowed her malpractice claim to the actions of the nurse midwife. MCL 600.2912d(1). At the time of plaintiff's complaint, plaintiff's claims focused on the actions of physicians and staff who allegedly failed, in part, to timely diagnose and treat fetal distress and to fully evaluate his mother. As a physician and obstetrician/gynecologist, Dr. Zack was certainly qualified under § 2169 to testify as an expert witness against these physicians. Therefore, plaintiff's attorney's belief [269 Mich.App. 496] that an obstetrician/gynecologist met the requirements for an expert witness under § 2169 was reasonable.

        III. Expert Testimony

         With respect to the dispositive issue, we agree with defendant and the trial court that plaintiff failed to establish a genuine issue of material fact in response to defendant's summary disposition motion because the testimony of plaintiff's experts, Dr. Zack and Dr. Michael Berke, was not admissible evidence regarding the standard of care applicable to a nurse midwife.

        For an expert to be qualified to testify regarding the standard of care, the expert must be qualified under § 2169(1). Halloran, supra, p. 578 n. 6, 683 N.W.2d 129. As previously discussed, § 2169(1)(b) applies here because plaintiff's claims are directed against defendant's nonphysician nurse midwife. Under this section, to qualify to offer testimony regarding the appropriate standard of practice or care of the nurse midwife, plaintiff's experts must practice in "the same health profession" as the nurse midwife. MCL 600.2169(1)(b)(i). Nurse midwives are licensed to practice under MCL 333.17211 and certified under MCL 333.17210. Dr. Zack and Dr. Berke, however, are obstetricians/gynecologists who are physicians under the Public Health Code definition, MCL 333.17001(1)(c). These experts, therefore, do not qualify to testify regarding the standard of care applicable to defendant's nurse midwife.

       This conclusion is bolstered by the Legislature's decision to change § 2169 for cases filed on or after April 1, 1994. The former version of the statute applied only to physician or dental specialists and required that witnesses who testified regarding the standard of care or practice must specialize in the same specialty or a related area of medicine, surgery, or dentistry and must [269 Mich.App. 497] have devoted a substantial portion of professional or instructional time to that practice. The amended statute at issue here applies to all licensed health professionals and requires that the expert who testifies about the standard of care or practice teach in or devote a majority of time to the active clinical practice of " the same health profession. ..." MCL 600.2169(1)(b). Thus, the plain language of the statute and the legislative intent in amending the statute ensures that, with respect to all licensed health professionals, a witness testifying about the standard of care or practice must practice or teach in the same health profession. Though it may appear reasonable that a physician with substantial educational and professional credentials should be able to testify about the standard of care of a nurse who works in a closely related field, we are constrained by the plain words of the statute that the expert witness must practice in the "same health profession." Consequently, we conclude that because nurse midwives are separately licensed professionals who practice nursing with specialty certification in the practice of nurse midwifery, obstetricians/gynecologists may not testify about their standard of practice or care.

        On a motion for summary disposition, the existence of a disputed fact may only be established by admissible evidence. MCR 2.116(G)(6); Veenstra v. Washtenaw Country Club, 466 Mich. 155, 163-164, 645 N.W.2d 643 (2002). Dr. Zack and Dr. Berke were qualified to testify at trial regarding how the nurse midwife's alleged breach caused plaintiff's injury. Their testimony would be relevant regarding what an obstetrician/gynecologist would have done had one been called. However, pursuant to the strict requirements of § 2169, their testimony would not be admissible to establish the standard of care applicable to defendant's nurse midwife. Plaintiff, therefore, is left without evidence to sustain this part of [269 Mich.App. 498] his claim. Accordingly, defendant was entitled to summary disposition because plaintiff failed to establish a genuine issue of material fact regarding the standard of care and the subsequent breach. See Craig v. Oakwood Hosp., 471 Mich. 67, 86, 684 N.W.2d 296 (2004). For this reason, we affirm the trial court's grant of summary disposition in favor of defendant.

Nurse midwives are registered professional nurses with specialty certification in the practice of nurse midwifery issued by the Board of Nursing. MCL 333.17210; MCL 333.2701(b). By the plain and ordinary meanings of "general practitioner," "specialist," and "physician," it is clear that these professionals practice medicine. Registered professional nurses, on the other hand, practice nursing. See Cox, supra, p. 19, 651 N.W.2d 356. Therefore, § 2169(1)(a) and (c) does not apply to nurse midwives.