Opinion
SC: 162592 COA: 348760
07-09-2021
IN RE David Peter JANKOWKSI, D.O. Department of Licensing and Regulatory Affairs, Petitioner-Appellee, v. David Peter Jankowski, D.O., Respondent-Appellant.
Order
On order of the Court, the application for leave to appeal the December 29, 2020 judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE that part of the Court of Appeals’ judgment relying on its caselaw to hold that "even without Dr. Cooke's testimony, the Board [of Osteopathic and Surgical Medicine Disciplinary Subcommittee (the Board)] could have determined, using its own expertise, that the evidence demonstrated that respondent engaged in violations of the Public Health Code." In re Jankowski , ––– Mich. App. ––––, ––––, ––– N.W.2d ––––, 2020 WL 6816499 (2020) ( Docket No. 348760).
"Generally, expert testimony is required in a malpractice case in order to establish the applicable standard of care and to demonstrate that the professional breached that standard." Sullivan v. Russell , 417 Mich. 398, 407, 338 N.W.2d 181 (1983). "[A]n exception to the general rule exists when the lack of professional care is so manifest that it would be within the common knowledge and experience of the ordinary layman that the conduct was careless and not conformable to the standards of professional practice and care employed in the community." Id. (quotation marks and citation omitted). Although this case involves an administrative disciplinary proceeding rather than a medical malpractice action, the underlying issue is the same—whether respondent-physician complied with the applicable standard of care in documenting and prescribing pain medication for his patients. Because this is not an issue within the common knowledge and experience of the ordinary layman, expert testimony was required. And, given that the Board did have the benefit of Dr. Cooke's expert testimony, it was unnecessary to determine what the Board could have done without his testimony.
Further, the Court of Appeals cited its own caselaw in support of the conclusion that the Board could rely on its own expertise in finding a Public Health Code violation without the need for Dr. Cooke's expert testimony. See Jankowski , ––– Mich. App. at ––––, ––– N.W.2d ––––; slip op. at 8 ("[A] disciplinary subcommittee may rely on its own expertise in determining violations of the Public Health Code. In that regard, this Court has previously concluded that a disciplinary subcommittee does not require expert testimony to determine that a respondent was negligent or lacking in good moral character when the conduct lacked basic elements of professional integrity."), citing Dep't of Community Health v. Anderson , 299 Mich. App. 591, 600, 830 N.W.2d 814 (2013), and Sillery v. Mich. Dep't of Licensing & Regulation Bd. of Med. , 145 Mich. App. 681, 688-689, 378 N.W.2d 570 (1985). Although the Court of Appeals accurately described the rulings of Anderson and Sillery , we conclude that those cases do not support the broader propositions that a disciplinary subcommittee may rely exclusively on its own expertise in determining violations of the Public Health Code or that expert testimony is never required to support such violations. See Anderson , 299 Mich. App. at 600, 830 N.W.2d 814 (holding that the disciplinary subcommittee's facts and conclusions were supported by competent, material, and substantial evidence on the whole record when the standard of care was undisputed, the only issue was whether the respondent-veterinarian actually committed the misconduct, and the disciplinary subcommittee relied on its own expertise and record evidence to support its finding of a Public Health Code violation); Sillery , 145 Mich. App. at 688-689, 378 N.W.2d 570 (explaining that expert testimony was not necessary because the petitioner-pathologist's misconduct—falsifying findings in an autopsy report—plainly lacked basic integrity and truthfulness such that it was "within the province of the layperson to determine that the conduct constitutes a failure to exercise due care"), citing Sullivan , 417 Mich. 398, 338 N.W.2d 181. Accordingly, we vacate that part of the Court of Appeals’ judgment that mistakenly relies on Anderson and Sillery to conclude that the Board, without Dr. Cooke's expert testimony, could rely on its own expertise to find that respondent engaged in violations of the Public Health Code.
In all other respects, leave to appeal is DENIED, because we are not persuaded that the remaining question presented should be reviewed by this Court.