As an area of law where expert witness testimony is not just helpful to the finder of fact but required to present a prima facie claim or defense, medical malpractice cases often involve so-called “battles of the experts.” Case law has long provided that absent narrow circumstances, medical malpractice actions raise questions of medical judgment beyond the realm of common knowledge and experience of the average juror.¹

Accordingly, expert testimony must establish the applicable standard of care based upon facts from which the trier of fact could conclude that a defendant breached or complied with that professional duty.² Expert testimony is also generally essential to establish a causal nexus between the alleged breach and the injury suffered by the patient.³ Because a claim or defense insufficiently supported by properly qualified expert testimony is subject to fully or quasi-dispositive relief, challenges to an expert’s qualifications are common in malpractice litigation.

This article aims to give an overview of the expert witness-related landmines and sometimes counterintuitive pitfalls that the unwary practitioner may face in prosecuting or defending a malpractice action. The proponent of medical malpractice expert testimony has the burden of establishing that the expert is qualified under the overlapping layers of MRE 702, MRE 703, MCL 600.2169 and MCL 600.2955.⁴ The party seeking to admit the expert testimony must show that the expert is qualified, used a reliable methodology or medical principles, and that the expert’s opinion is factually based on the admissible evidence or logical inferences from such evidence.⁵

MRE 702

As part of its gatekeeping function, the trial court must determine whether a witness possesses the requisite qualifications to present expert testimony before a jury. With all expert witness testimony, the start of the analysis is MRE 702. To assist the trier of fact in determining an issue in dispute, the proposed expert witness must have the necessary knowledge, skill, experience, training, or education to enable them to competently give such testimony.⁶

Paralleling the federal rules of evidence, Michigan takes an expansive view of who may qualify as an expert under MRE 702.⁷ Generally, so long as the minimal standards set forth per MRE 702 are met, gaps or limitations in an expert’s knowledge or qualifications are relevant to the weight to be given to the testimony by the trier of fact, not to the testimony’s admissibility.⁸

The requirement that both the plaintiff and defendant to a medical malpractice action file an affidavit to support the case is codified in MCL 600.2912d and 600.2912e. These are essentially mirror-image statutes differing in their timing. Under MCL 600.2912d, the plaintiff’s attorney is required to file with the complaint an affidavit of merit (AOM) signed by a health professional who the plaintiff’s attorney reasonably believes meets the requirements for an expert witness under MCL 600.2169, discussed infra. An AOM must contain a statement as to each of the following:

1. The claimed appropriate standard(s) of care;

2. How the standard of care was breached;

3. The conduct required to comply with the standard of care; and

4. How the breach caused injury. ⁹

Absent certain legal exceptions,¹⁰ a complaint filed without the required AOM is considered a nullity and does not toll the running of the statute of limitations.¹¹ While affidavits of merit are signed by standard-of-care experts and include a statement of causation, depending on the facts and issues in the case, additional expert testimony on causation may be required to successfully prosecute or defend the case. For example, a nurse may execute an affidavit which sufficiently states the element of proximate causation; however, depending on the issues, the ability of that nurse to offer medical proximate cause testimony at trial may be restricted to comport with the nurse’s expertise and scope of practice.¹²

When necessary, affidavits of merit or meritorious defense may be amended back to the filing date of the original affidavit in accordance with MCR 2.118 and MCL 600.2301.¹³ MCR 2.118 allows amendment once as a matter of course within 14 days after being served with a responsive pleading by an adverse party or within 14 days after serving the pleading if it does not require a responsive pleading.

MCL 600.2301 allows the amendment of any process or pleading in form or substance on such terms as are just at any time before a judgment is rendered. It also provides that the court disregard any error or defect in the proceedings that does not affect the substantial rights of the parties.

MCR 2.112(L)(2) provides that challenges to an affidavit of merit or affidavit of meritorious defense, including challenges to the qualifications of the signer, must be made by motion within 63 days of service of the affidavit on the opposing party. An affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301. An affidavit of merit is presumed valid and tolls the statute of limitations until successfully challenged by motion. If the challenge is successful, the case may be dismissed without prejudice with whatever time remained in the limitations period at the time of original filing preserved.¹⁴

MCL 600.2912d and MCL 600.2912e were enacted to offer a “balanced compromise” and “discourage unjustified medical malpractice lawsuits.”¹⁵ Under the mirroring statute applicable to a defendant and substantively adding the requirement to detail the factual basis of the defense as required in plaintiff’s notice of intent, an affidavit of meritorious defense (AOMD) must be filed within 91 days of service of the plaintiff’s affidavit of merit.¹⁶

STANDARD-OF-CARE TESTIMONY

MCL 600.2169(1) sets forth the requirements for experts who testify regarding the standard of care in medical malpractice cases. As noted by the Michigan Supreme Court in McDougall v Schanz, the Report of the Senate Select Committee on Civil Justice Reform stated that the statute was intended “to make sure that experts will have firsthand practical expertise in the subject matter about which they are testifying.”¹⁷ While procedural in nature, MCL 600.2169 has been held to be substantive law.¹⁸

Where a physician is practicing in an area in which he or she could become board certified, the standard-of-care expert witness must practice in that same specialty. If the defendant was board certified, the expert must be board certified in that same specialty.¹⁹

MCL 600.2169(1)(b)(i) requires that an expert devoted — in the year preceding the date of the alleged injury — a majority of their professional time to “[t]he active clinical practice of the same health profession … and, if that party is a specialist, the active clinical practice of that specialty.” A “majority” means more than 50%²⁰ and “specialty” in this provision refers to a specific area of medical practice.

The Michigan Supreme Court looked to the definition of “health profession” contained in a provision of the Public Health Code, MCL 333.1101 et seq., when interpreting MCL 600.2169(1)(b).²¹ The Public Health Code defines a “health profession” as “a vocation, calling, occupation, or employment performed by an individual acting pursuant to a license or registration.”

However, the term “specialty” is not defined in the statute. This has led to significant litigation and various conflicting Michigan Court of Appeals opinions. In Woodard v Custer,²² the Michigan Supreme Court defined “specialty” as a particular branch of medicine or surgery in which one can potentially become board certified. Accordingly, if the defendant physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff’s standard-of-care expert must practice or teach the same branch of medicine or surgery. Under the Woodard definition, a subspecialty, although a more particularized specialty, is nevertheless a specialty. Therefore, if a defendant physician “specializes” in a subspecialty, the plaintiff’s standard-of-care expert witness must have specialized in the same subspecialty as the defendant physician at the time of the occurrence that provides the basis for the action.²³

The Woodard Court noted that the language of MCL 600.2169(1) only requires a single specialty to match, not multiple specialties. Id. In other words, “the plaintiff’s expert does not have to match all of the defendant physician’s specialties; rather, the plaintiff’s expert only has to match the one most relevant specialty.” Id. at 567-568. The specialty engaged in by the defendant doctor during the course of the alleged malpractice constitutes the one most relevant specialty. Id. at 560.

Adding to this complexity, the Woodard Court ruled that for purposes of MCL 600.2169, there effectively is no difference between being board certified and having a certificate of added or special qualification:²⁴

Because a certificate of special qualifications is a document from an official organization that directs or supervises the practice of medicine that provides evidence of one’s medical qualifications, it constitutes a board certificate. Accordingly, if a defendant physician has received a certificate of special qualifications, the plaintiff’s expert witness must have obtained the same certificate of special qualifications in order to be qualified to testify under § 2169(1)(a).

While giving some guidance on the issue of expert witness qualifications, the Woodard definition of specialty does not address the modern reality of overlapping specialties in medicine. Consequently, Michigan appellate law is rife with cases with unexpected and counterintuitive outcomes. This includes experts being stricken as overqualified and defendants being held to standards of practice in subspecialties in which they were not certified to practice despite the undisputed fact the care at issue was within the scope of practice of their primary specialty.

As this article is being published, the Supreme Court has granted leave²⁵ to evaluate such anomalies and may provide practitioners with more clear guidance. Indeed, the Court of Appeals has “encourage[d] our Supreme Court to provide much-needed clarity in this complex area of law.”²⁶ With the current level of uncertainty and resulting challenges, many practitioners take a shotgun approach by hiring multiple potential experts in overlapping fields, resulting in escalating costs of both prosecuting and defending malpractice actions.

To preserve access to the civil justice system, the Supreme Court emphasized the public policy imperative of the courts to “secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties.”²⁷ A clear and simple statutory construction of expert witness requirements furthers that imperative.

In addition to the profession and specialty matching requirements under §2169(1), MCL 600.2169(2) provides additional criteria for courts to consider which largely mirror the required 702 analysis:

(a) The educational and professional training of the expert witness;

(b) The area of specialization of the expert witness;

(c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty; and

(d) The relevancy of the expert witness’s testimony.

Resident physicians and physician fellows are subject to the same standard of care as a specialist practicing in the field in which the physician-in-training is practicing. Residents training in a particular branch of medicine or surgery who can potentially become board certified in that specialty are specialists for purposes of analysis under the framework provided in MCL 600.2169(1).²⁸

A hospital resident is a licensed physician. The applicable standard of care does not change depending on the number of years a physician has been licensed. Physicians are required to provide the same care that a physician of ordinary learning, judgment, or skill in the particular field at issue would provide under the same or similar circumstances as those faced by the defendant.²⁹

MD VS. DO

In Crego v Edward W Sparrow Hosp Ass’n, 327 Mich App 525; 937 NW2d 380 (2019), the Court of Appeals held that while the defendant doctor and plaintiff’s expert were both board-certified obstetrician-gynecologists, the fact that defendant was a licensed osteopathic physician and the expert was a licensed allopathic physician was not relevant for purposes of evaluating the expert’s affidavit of merit under MCL 600.2169(1)(b)(i). This holding recognizes the overlap in training afforded to allopathic and osteopathic physicians.

THE ANACHRONISM OF LOCAL STANDARD FOR NON-PHYSICIANS

The standard of care for a specialist is “the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances.”³⁰ MCL 600.2912a requires knowledge of the local standard of care, i.e., that in the same or similar communities for non-physicians and “general practitioners,” whereas there is a national standard for specialists.³¹ This is true for dentists, midlevel providers such as nurse practitioners and physician assistants, nurses, chiropractors, and podiatrists as well. With the progression of national standardization among most health professions, the local standard has become an anachronism.

Nurses practice nursing and do not engage in the practice of medicine. Therefore, nurses are not subject to the standards for specialists. Instead, a nurse is held to a common-law standard of care based on the standards of the same (or similar) community in which they practice.³² However, as a matter of modern reality, there are national standards that apply to all nurses (as reflected by the requirements to properly use the nursing process) as well as national certification and examination of nurses such as the National Council Licensure Examination.

CONCLUSION

In addition to their complexity, medical malpractice cases are frequently notable for their expense in both prosecution and defense. Expert witness costs are a major factor for all parties to an action. Solid knowledge of the layered court rules, rules of evidence, and statutory provisions regarding expert witness testimony is essential for the malpractice attorney.