Medical malpractice; Standard of care (SOC) requirements for expert medical testimony; MCL 600.2169; Woodard v Custer; “Specialist” & “specialties”; “Matching”; American Board of Medical Specialties (ABMS); American Osteopathic Association (AOA); American Board of Physician Specialties (ABPS)

Concluding “Woodard was in part wrongly decided and must be overruled in part[,]” the court held that as “to medical malpractice claims filed against physicians, the words ‘specialist’ and ‘specialties’ as used in MCL 600.2169(1) are defined as the specialties recognized by the” ABMS, the AOA, the ABPS, “or other similar nationally recognized umbrella-based physician certifying entities.” It also held that MCL 600.2169’s matching requirement “follows the listed general board certifications, which are the baseline ‘specialties’ recognized by such entities for certification purposes. The statute does not require matching of subspecialties.” Two cases were involved in this appeal, one referred to as Swofford and the other as Selliman. The court determined that the test adopted in Woodard “regarding the evaluation of specialists in medical malpractice actions is inconsistent with” MCL 600.2169’s language. “Specifically, Woodard incorrectly conflated the terms ‘specialty’ and ‘subspecialty’ in a manner that is inconsistent with the plain language of the statute, and it essentially negated MCL 600.2169(2) and (3), which provide significant discretion to trial courts to exclude experts even when such experts qualify under Subsection (1).” The court emphasized “that a trial court must ensure that experts with matching specialties under MCL 600.2169(1) meet other criteria set forth in MCL 600.2169(2) and that MCL 600.2169(3) provides trial courts with broad discretion in assessing experts.” In the cases on appeal, it found that while “the Court of Appeals reached the correct result in” the Swofford case, “it relied on Woodard. Thus, it erred by concluding that the relevant specialty was neuroradiology and that” plaintiff’s SOC expert (Dr. B) “was therefore qualified because he spent a majority of his time as a neuroradiologist. Instead, [B] was qualified because the relevant specialty was diagnostic radiology and his subspecialty of neuroradiology was subsumed within that broader specialty.” As a result, the court affirmed in part and reversed in part the Court of Appeals judgment in that case, and remanded to the trial court. In the Selliman case, the Court of Appeals ruled that plaintiff’s proposed SOC expert (Dr. A) “was not qualified to give [SOC] testimony under MCL 600.2169. But it relied on Woodard when assessing the time spent by defendant and [A] on both otolaryngology and facial plastic and reconstructive surgery—treating both as specialties.” Thus, the court reversed the Court of Appeals judgment and remanded to the trial court.

Dissenting, Chief Justice Clement (joined by Justices Zahra and Viviano) disagreed “with the majority’s substantive arguments” on Woodard’s merit. She believed “Woodard correctly defined ‘specialty’ as including ‘subspecialty’ and did not effectively negate Subsections (2) and (3) of § 2169.” Further, she “would not overrule Woodard in part, as the majority now does, due to stare decisis concerns. Woodard’s rules are more administrable than those the majority now puts forward, and” as a result, she believed Woodard was “worth keeping.” She would affirm the Court of Appeals in both cases.