Opinion
On order of the Court, the application for leave to appeal the July 3, 2003 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
MARKMAN, J., concurs and states as follows:
Although I would affirm the judgment of the Court of Appeals, I would do so on different grounds than those relied on by the majority of that Court. In light of the dissent in the Court of Appeals, I believe that it is necessary to set forth my own approach to this case.
The term "party" possesses several potential definitions. The majority and dissenting decisions of the Court of Appeals present us with two such definitions, each of which, in my judgment, appears reasonable. The term "party" can fairly be interpreted, as proposed by the dissent, to mean only the named "party" to a lawsuit. The term "party" can also fairly be interpreted, as proposed by the majority, to encompass an alternative range of entities, such as an interested party (such as the hospital's agents in this case). In determining which definition of a term among reasonable alternatives is that intended by the Legislature, it is necessary to consider, under the doctrine of noscitur a sociis, the context of that term. As was recently stated by this Court in G.C. Timmis v. Guardian Alarm Co., 468 Mich. 416, 420-421, 662 N.W.2d 710 (2003):
The doctrine of noscitur a sociis, i.e., that "a word or phrase is given meaning by its context or setting," affords us assistance.... [W]e apply noscitur a sociis to the individual phrases of [the relevant provision], as well as to the other provisions of [the relevant act] because the emphasized language does not stand alone, and thus it cannot be read in a vacuum. Instead, "[i]t exists and must be read in context with the entire act, and the words and phrases used there must be assigned such meanings as are in harmony with the whole of the statute...." "[W]ords in a statute should not be construed in the void, but should be read together to harmonize the meaning, giving effect to the act as a whole." Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when read in context. [Citations omitted].
Having undertaken a consideration of the relevant statute, it becomes clear, in my judgment, that "party," as used in MCL 600.2169, must be interpreted, in accord with the Court of Appeals majority, as including the agents upon whose actions a hospital's alleged vicarious liability is premised. I reach this conclusion because the contrary interpretation, as set forth by the dissent, would render the statute fundamentally illogical.
MCL 600.2169 provides in relevant parts:
(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 ... the testimony is offered is a specialist, specializes ... in the same specialty as the party against whom ... the testimony is offered. However, if the party against whom ... 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 ... occurrence ..., 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 ... 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 ... 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 ... the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding ... the occurrence ..., 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. [Emphasis added].
The Court of Appeals dissent concludes that "party" refers only to named parties to the suit, and not to agents of parties. 257 Mich.App. 387, 668 N.W.2d 628 (2003)(Whitbeck, J., dissenting). Therefore, according to the dissent, the only relevant "party" to consider in determining whether the requirements of § 2169(1)(a) apply to this case is the hospital. Because a hospital obviously cannot be board certified, plaintiff's expert witness need not be board certified, and therefore plaintiff is, in essence, not required to comply with this section of the statute.
Were this the end of the analysis, I would be inclined to agree with the dissent. However, the term "party," as used in subsection a of § 2169(1), is also used in subsections b and c, and the dissent failed to consider its interpretation of the term "party" as it relates to those subsections.
Section 2169(1) provides that unless a witness is: (1) licensed as a health professional in this state or another state and (2) meets the criteria listed in subsections a, b and c, such person shall not give expert testimony about the appropriate standard of practice or care in a medical malpractice action.
Subsection a, providing that if the "party" is a board certified specialist, the witness must likewise be a board certified specialist, applies only in those cases in which the "party" is a board certified specialist. Thus, if defendant is a general practitioner, subsection a is irrelevant to an analysis under § 2169 regarding whether the witness is qualified to testify. Subsection c applies only if the "party" is a general practitioner. Therefore, its relevance likewise is limited to cases in which the defendant is a general practitioner. However subsection b applies without regard to the certified qualifications of the named "party." If a witness does not meet the standards set forth in subsection b, such witness, under § 2169(1), "shall not give expert testimony as to the appropriate standard of practice or care...."
The dissent asserts that, because it is impossible for a witness to comply with § 2169(1)(a) if the sole "party" is a hospital, the witness simply need not comply with this provision. The dissent would presumably apply that same logic to § 2169(1)(b) and (c). However, as noted, the statute provides that a witness may not testify unless he or she meets the qualifications set out in subsections a, b and c. Therefore, as explained above, with respect to subsection b, the dissent is incorrect in its assertion that, if compliance with that subsection is impossible, then compliance with the subsection is simply excused and the witness may proceed nonetheless to testify.
Section 2169(1)(b) provides that the witness, during the year preceding the date of the alleged negligence, must have devoted a majority of that witness's professional time to either: (1) the active clinical practice of the same health profession in which the "party" is licensed or (2) the instruction of students in the same health profession in which the "party" is licensed.
If the sole defendant in a medical malpractice case is a hospital, and the "party" referred to in § 2169(1)(b) is that hospital, plaintiff's witness would never be able to show that he or she devoted a majority of his or her professional time to the active clinical practice "of the same health profession in which the party ... is licensed ...." or to the instruction of students "in the same health profession in which the party ... is licensed...." (Emphasis added). This is because, although hospitals are licensed, they are not licensed in a health profession in the same way that individuals are licensed. For a witness to be licensed in the same health profession as a hospital, that witness would have to be licensed as a hospital under MCL 333.20101, et seq., which is the act under which health care facilities and agencies are licensed. A witness, of course, could never be so licensed. Thus, if "party" is interpreted, as the dissent advocates, to mean only the named party and not the agents of the party, and the named party is a hospital, a potential witness would never be qualified to provide expert testimony on the standard of care under § 2169(1). It becomes clear that the dissent's interpretation essentially defeats itself because the purpose behind§ 2169 is not to render a plaintiff incapable of producing an expert witness in an otherwise valid suit, but to ensure that the witness plaintiff produces is qualified.
Considering § 2169 in the context of the entire medical malpractice statutory framework further erodes the ground underlying the dissent's position. This is because under § 2912d, a plaintiff may not proceed on a medical malpractice action unless such plaintiff has a witness qualified under § 2169(1) to give expert testimony on the appropriate standard of care. Yet, under § 2912b, the Legislature has expressly recognized the right to sue a health care professional or a health care facility, such as a hospital, for medical malpractice. Interpreting "party" in § 2169 as encompassing only the named defendant effectively nullifies that right. A plaintiff would be unable to name a hospital as a sole defendant in a medical malpractice suit because such a plaintiff would never be able to find a witness qualified to provide expert testimony against the hospital. I find no support for the proposition that, by its use of the term "party" in § 2169, the Legislature intended to nullify a plaintiff's right to sue a hospital as a sole defendant. Accordingly, I would affirm the majority decision of the Court of Appeals. Although both the majority and the dissent offer thoughtful interpretations regarding the meaning of the term "party," a consideration of the term in its full statutory context leads to the conclusion that the majority's interpretation is not only reasonable, but that it is the only interpretation that avoids rendering the statute illogical.
MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., would grant leave to appeal.