A Report on Recent Court
Decisions Identifying Statutes for Legislative Action and Recommendations to
the Legislature
I. Introduction.
As
part of its statutory charge to examine current judicial decisions for the
purpose of discovering defects in the law and to recommend needed reforms, the
Michigan Law Revision Commission undertook a review of two Michigan Supreme
Court opinions and two Michigan Court of Appeals=
decisions released in 2001. These
opinions identify state statutes as potential candidates for legislative
reform. The four opinions are:
Levy
v. Martin, 463 Mich. 478, 620 N.W.2d
292 (2001)(accrual of a cause of action under the two-year professional
malpractice statute of limitations)
Michalski
v. Bar-Levav, 463 Mich. 723, 625
N.W.2d 754 (2001)(scope of protection under the Persons With Disabilities Act
for persons who are regarded as having a characteristic that substantially
limits a major life activity)
Gilbert
v. Second Injury Fund, 244 Mich. App.
326, 625 N.W.2d 116 (2001)(apportionment of worker=s compensation benefits between the Ainjury employer@and the
Second Injury Fund under the dual employment provisions of the Worker=s Compensation Act)
Decker
v. Flood, 248 Mich. App. 74, 638
N.W.2d 163 (2001)(requisite qualifications of a health professional signing an
affidavit of merit under M.C.L. ' 600.2912d in a medical malpractice claim)
II. Accrual of
A Cause of Action Under the Two-Year Professional
Malpractice Statute of Limitations, M.C.L. ' 600.5838(1).
A. Background.
M.C.L.
' 600.5838; M.S.A. '
27A.5838 provides that a professional malpractice claim "accrues at the
time that person discontinues serving the plaintiff in a professional . . .
capacity as to the matters out of which the claim for malpractice arose,
regardless of the time the plaintiff discovers or otherwise has knowledge of
the claim." The question when the
professional Adiscontinues serving the plaintiff@ for purposes of the accrual of a
cause of action was addressed
by the Supreme Court in Morgan v. Taylor, 434 Mich. 180, 451 N.W.2d 852
(1990). The plaintiffs in Morgan
filed two complaints in 1985, alleging malpractice in connection with a 1981
optometric examination. An examination also had been conducted in 1983, less
than two years before the complaints were filed. The issue in Morgan was
whether "routine, periodic examinations" extend the limitation
period. Resolving the question in the affirmative, the Court wrote:
In the instant case defendant argues that the
rationale underlying the last treatment rule does not apply in the context of
routine, periodic examinations. It is contended that there is no air of
truthfulness and trust once the examination is concluded. We disagree. It is
the doctor's assurance upon completion of the periodic examination that the
patient is in good health which induces the patient to take no further action
other than scheduling the next periodic examination.
Particularly in light of the contractual arrangement
which bound defendant and entitled plaintiff to periodic eye examinations, it
cannot be said that the relationship between plaintiff and defendant terminated
after each visit. The obligation and responsibility of defendant to provide
glaucoma testing extended beyond the 1981 examination of plaintiff's eyes. We
conclude that defendant did not discontinue "treating or otherwise
serving" plaintiff "as to the matters out of which the claim for
malpractice arose" until August 18, 1983. Thus, we hold that the claim of
plaintiff is not barred by the statute of limitations.
Morgan v. Taylor, 434 Mich. at 194.
Although the common law Alast treatment@ rule
was eventually codified in the malpractice statute of limitations, the
Legislature repealed the Alast treatment@ rule in
connection with medical malpractice cases in 1986. See 1986 P.A. 176.
B. The Levy v. Martin Decision.
From
1974 until 1996, accountants Martin and Hoskow prepared the annual tax returns
of Levy. As the result of an audit by
the Internal Revenue Service, Levy was required to pay additional taxes for
1991 and 1992, as well as penalties and interest. He also incurred legal expenses and
additional accounting expenses. In August 1997, Levy filed a complaint in which
he alleged that losses exceeding $90,000 had been caused by the malpractice of
Martin and Hoskow. The 1991 and 1992 tax returns of which Levy complained were
prepared and submitted in 1992 and 1993, respectively. Observing that the
limitation period for a malpractice action is two years, Martin and Hoskow
filed a motion to dismiss in lieu of an answer. The circuit court agreed that
the malpractice claim was not timely, and dismissed the complaint on that
basis.
The
Court of Appeals affirmed. The Court wrote that "[t]he preparation of
yearly tax returns is not analogous to the periodic eye examinations in Morgan
v. Taylor," since "[e]ach individual tax return reflects the
examination of a discrete, contained body of information." Writing in
dissent, Judge Whitbeck disagreed about the applicability of Morgan. He
countered that the Morgan analysis of the statute was "instructive
and, in appropriate circumstances, controlling," expressing the view that
the malpractice claim had been filed timely.
The
Supreme Court in Levy v. Martin found Judge Whitbeck=s analysis persuasive and adopted it as its own:
I respectfully disagree with the majority's attempt to
distinguish the "continuing care of one patient's set of eyes in Morgan,
supra," from what the majority describes as "the series of
unrelated tax calculations in this case." . . . The touchstone of the
analysis in Morgan was the continuing professional relationship
between a professional and the person receiving the professional's services
with regard to a particular subject matter, not any direct connection between
the work performed by the professional at continuing periodic sessions during
that relationship. The alleged negligence in Morgan occurred during a
glaucoma test on the principal plaintiff in Morgan at a 1981 eye
examination. . . . The principal plaintiff in Morgan did not return to
the defendant optical company for an examination until 1983 for his next
routine eye examination. . . . There is no indication in Morgan
that the manner in which the eye examination was conducted in 1983 had any
direct connection to the performance of the 1981 glaucoma test. Nevertheless,
the Morgan Court concluded that, due to the statutory "last
treatment" rule, the statute of limitations with regard to alleged
negligence in the 1981 glaucoma test did not begin to run on the date it was
performed because of the continuing professional relationship between the
patient and the optical company.
Similarly, in this case, plaintiffs' complaint
alleges, without any contrary documentary evidence in the record, the existence
of a continuing relationship of tax preparer and client that did not end until
1996. Until the end of that relationship, for purposes of applying the
"last treatment" rule and thereby ascertaining whether the statute of
limitations bars this suit, plaintiffs had "no duty to inquire into the
effectiveness of [defendants'] measures" until the end of the professional
relationship.
I note that it may (or may not) be wise for M.C.L. '' 600.5838(1); MSA 27A.5838(1) to be amended to
completely abolish the "last treatment" rule. However, "[t]he
wisdom of the provision in question in the form in which it was enacted is a
matter of legislative responsibility with which the courts may not
interfere." Morgan, supra at 192, 451 N.W.2d 852, quoting Melia
v. Employment Security Comm., 346 Mich. 544, 561, 78 N.W.2d 273 (1956). Our
duty is to faithfully apply the legislatively adopted policy of the "last
treatment" rule to claims of professional malpractice, other than medical
malpractice, not to attempt to limit that policy by an unduly narrow
application.
463 Mich. at 486-87, 620
N.W.2d at 295-96 (quoting from Judge Whitbeck=s
dissenting opinion) (citations and footnotes omitted, emphasis in
original).
Adding
to Judge Whitbeck=s analysis, the Supreme Court turned its attention to
the meaning of the statutory phrase, Athe
matters out of which the claim for malpractice arose,@ and offered the following view:
How
broadly to read "the matters out of which the claim for malpractice
arose"was addressed by this Court in Morgan. There, unlike the
situation in De Haan, the plaintiff was not receiving treatment for a
specific ailment, but rather was receiving periodic eye examinations from the
defendants. This Court held that it was those examinations, not any injury,
that constituted "the matters out of which the claim for malpractice
arose." Using the same reasoning, it is clear here that plaintiffs, rather
than receiving professional advice for a specific problem, were receiving
generalized tax preparation services from defendants. These continuing
services, just like the continuous eye examinations in Morgan, to be
consistent with the Morgan approach, must be held to constitute
"the matters out of which the claim for malpractice arose."
463 Mich. at 488-89, 620
N.W.2d at 297 (footnote omitted).
In
dissent, Justice Markman criticized the majority=s
reading of the phrase, Athe matters out of which the claim for malpractice
arose.@ He disagreed
with Judge Whitbeck=s assertion that A>[t]he
touchstone= of the >last
treatment= rule is the >continuing
professional relationship between a professional and the person receiving the
professional's services,=@ adding the following analysis:
The
plain language of subsection 5838(1) does not state that a claim of
professional malpractice accrues on the last date of service (i.e., "last
date of treatment"), period. Rather, the statutory language clearly
defines the point of accrual, confining the last date of service expressly to
those matters "out of which the claim for malpractice arose";
from this language, certainly, a professional relationship may continue on even
though a malpractice claim arising out of that relationship has accrued and
the clock has started to run with regard to the two-year limitation period. The
Court of Appeals dissent and the majority's adoption of the dissent's analysis
without explanation fail to acknowledge and give effect to the plain language
of the entire sentence comprising subsection 5838(1), thereby rendering
the modifying phrase "matters out of which the claim for malpractice
arose" superfluous.
463 Mich. at 496, 620 N.W.2d
at 300 (emphasis in original).
Question Presented
Should the professional malpractice statute of
limitations be amended to
repeal the Alast
treatment@ rule or clarified to identify when a cause of action
accrues?
Recommendation
The Commission makes no
recommendation to the Legislature.
III. Scope of
Protection under the Persons With Disabilities
Act for Persons Who Are Regarded as Having a
Characteristic
that Substantially Limits a Major Life Activity.
A. Background.
The Persons
With Disabilities Act provides that "[a]n
employer shall not . . . [d]ischarge or otherwise discriminate against an
individual with respect to compensation or the terms, conditions, or privileges
of employment, because of a handicap that is unrelated to the individual's
ability to perform the duties of a particular job or
position." M.C.L. '
37.1202(1)(b); M.S.A. ' 3.550(202)(1)(b).[1] As amended in 1990, the Act defines Ahandicap@ for
employment related purposes as follows:
(i) A
determinable physical or mental characteristic of an individual, which may
result from disease, injury, congenital condition of birth, or functional
disorder, if the characteristic:
(A) For
purposes of article 2, substantially limits 1 or more of the major life activities
of that individual and is unrelated to the individual's ability to perform the
duties of a particular job or position or substantially limits 1 or more of the
major life activities of that individual and is unrelated to the individual's
qualifications for employment or promotion.
* * * *
(ii) A
history of a determinable physical or mental characteristic described in
subparagraph (i).
(iii)
Being regarded as having a determinable physical or mental characteristic
described in subparagraph (i).
M.C.L. '
37.1103(e); M.S.A. ' 3.550(103)(e).
To
establish a prima facie case of handicap discrimination, a plaintiff must
demonstrate that (1) she is handicapped as defined by the HCRA, (2) the
handicap is unrelated to her ability to perform the duties of her job, and (3)
she was discriminated against in one of the ways described in the statute. Chmielewski v. Xermac, Inc., 457 Mich.
593, 602, 580 N.W.2d 817 (1998).
B. The Michalski v. Bar-Levav Decision.
On September 1, 1995, plaintiff signed an employment
contract with defendant to begin work as an executive secretary on September
11, 1995. On September 4, 1995, plaintiff experienced numbness and tingling on
her left side, which persisted for four days. She was seen by her family
doctor, who referred her to Dr. Green, a neurologist. Plaintiff was able to
begin work as scheduled. On September 23, 1995, plaintiff saw Dr. Green, who
told her he suspected multiple sclerosis, but was unable to make a positive
diagnosis at that time. Plaintiff testified at her deposition that she told
defendant and others at the office about this tentative diagnosis. Plaintiff maintains that, after she revealed
her condition, defendant undertook a course of harassment, which she attributed
to his perception of her medical condition.
Dr.
Green saw plaintiff again on October 28, 1995.
At this time, plaintiff had no symptoms of multiple sclerosis, and Dr.
Green indicated on her medical record that she was "doing fine, feels
great." Plaintiff continued to work without incident until December 28,
1995, when she left work, experiencing a loss of vision in one eye. She was
seen by Dr. Green, who diagnosed multiple sclerosis. She was hospitalized for
three days, and her vision improved after treatment. However, she did not return
to work.
Plaintiff
brought an action alleging a violation of the Act and a claim for intentional
infliction of emotional distress.
Relying on subsection (iii)(Abeing
regarded as having a determinable physical or mental characteristic described
in subparagraph (i)@), plaintiff argued that defendant undertook a course
of harassment because he perceived her as handicapped. After discovery, defendant moved for summary
disposition. The circuit court granted the motion, concluding that Athere is no evidence that the condition that Plaintiff
was perceived to have was a condition which substantially limits one or more
for [sic] major life activities. And no evidence to suggest that the Defendant
had any knowledge that one or more of the major life activities was limited.@ See 463 Mich.
at 727, 625 N.W.2d at 757.
On
appeal, the Court of Appeals issued a split decision (Whitbeck, J.,
dissenting), affirming the dismissal of the intentional infliction of emotional
distress count, but reversing the dismissal of plaintiff's handicap
discrimination claim because it believed that plaintiff had presented
sufficient evidence to establish a prima facie case of handicap discrimination.
Relying on Sanchez v. Lagoudakis, plaintiff argued that one could find
that her condition was a handicap as defined by the statute because the Act
prohibits discrimination, even when an individual does not exhibit symptoms of
a handicap. A majority of the Court of Appeals agreed.
In
his dissent Judge Whitbeck focused on the fact that the definition of
"handicap" was
amended in 1990 to require that the physical or mental characteristic in
question substantially limit one or more major life activities of the
individual. The
version of the statute in
effect at the time of the events in Sanchez did not include this
requirement; thus, it was improper for the majority to rely on that case as
support for
its conclusion. Judge
Whitbeck reasoned that, under the applicable version of the Act, the plain
language of the statute required defendant to perceive plaintiff as having a
characteristic that substantially limited a major life activity. Because plaintiff did not present any
evidence that defendant regarded her as having a condition that
substantially impaired a major life activity, the dissent concluded that
summary disposition was properly granted.
The
Supreme Court reversed the Court of Appeals. The Court wrote that while
a plaintiff need not actually have a determinable physical or mental
characteristic, to qualify as handicapped under subsection (iii),
the plain statutory
language does require that the plaintiff prove the following elements: (1) the
plaintiff was regarded as having a determinable physical or mental
characteristic; (2) the perceived characteristic was regarded as substantially
limiting one or more of the plaintiff's major life activities; and (3) the
perceived characteristic was regarded as being unrelated either to the
plaintiff's ability to perform the duties of a particular job or position or to
the plaintiff's qualifications for employment or promotion. Only the first two
elements are at issue in this case.
463 Mich. at 732, 625 N.W.2d
at 760. In interpreting the phrase in
subsection (iii), Aregarded as having,@ the
Court noted that the Legislature used the present tense. The Court found this
use of the present tense significant:
Depending on whether a
plaintiff is proceeding under the "actual" or "regarded as"
portions of the statute, because of the Legislature's choice of present tense
language in defining the term handicap, we must evaluate the physical or mental
characteristic at issue either (1) as it actually existed at the time of the
plaintiff's employment, or (2) as it was perceived at the time of the
plaintiff's employment.
Thus,
to qualify for coverage under subsection (iii), plaintiff must be regarded as
presently having a characteristic that currently creates a substantial
limitation of a major life activity. In this case, plaintiff did not present
any evidence to create a question of fact regarding whether defendant regarded
her as having a characteristic that substantially limited a major life activity
at the time she was his employee. She presented no evidence that Dr. Bar Levav
regarded her as unable to perform basic tasks of ordinary life. Indeed, from
all indications, she was physically capable of performing her job duties. At
most, plaintiff presented evidence that she informed defendant that she had
been tentatively diagnosed with multiple sclerosis and that he believed that
this might substantially limit her major life activities in the future. Thus,
the trial court properly granted summary disposition on plaintiff's claim that
she was regarded as handicapped under the [Act].
463 Mich. at 733-34, 625
N.W.2d at 760-61 (footnotes omitted).
In
dissent, Justice Kelly criticized the majority=s focus
on the present-tense language of the statute. She wrote
that A[i]n
interpreting the scope of subsection (iii) of the Act using a narrow >present
tense=
standard, the majority gives it a meaning that the Legislature could not have
intended.@ She added:
[D]espite being
required to prove the manifest existence of actual symptoms, to succeed under
subsection (iii), plaintiff would have to show an absence of the perceived
handicapping disorder. Indeed, if she actually suffered from the handicap,
recovery would be available under subsection (i), obviating any need for
subsection (iii). Hence, the majority's holding leaves such a narrow avenue for
recovery under subsection (iii) that it renders the "regarded as"
prong of the [Act] a virtual dead letter.
463 Mich. at 738, 625 N.W.2d
at 763 (Kelly, J., dissenting).
In
response, the majority wrote that Awhile it may seem
incongruous that the [Act] does not provide protection against discrimination
on the basis of a possibility that one might become handicapped in the future,
our duty is to apply the law. . . . Consequently, while the Legislature may, and
perhaps should, amend the [Act] to include within its scope of protection
discrimination based on the possibility of a future handicap, we decline to do
so by construing the [Act] in a manner inconsistent with its plain language.@ 463 Mich. at 734 n.14, 625 N.W.2d at 761 n.14.
Question Presented
Should the Persons With Disabilities Act be amended to include within
its scope of protection discrimination based on the
possibility of a future disability?
Recommendation
The Commission recommends that the Legislature amend
the Act to include within its scope of protection discrimination based on the
possibility of a future disability.
IV.
Apportionment of Worker=s
Compensation Benefits
Between AInjury
Employer@ and Second Injury Fund Under
the Dual Employment Provisions of the Worker=s Compensation Act.
A. Background.
As part of a
wide-ranging amendment of the worker's compensation act in 1980, the
Legislature amended M.C.L. ' 418.371; M.S.A. '
17.237(371) and enacted M.C.L. ' 418.372; M.S.A. '
17.237(327) to address the payment of compensation where an injured employee
holds "dual employment."
Before the amendment, an injured employee holding more than one job was
entitled to benefits based solely on the wages earned at the job causing the
injury. Finkbiner v. ITT Building
Service, 189 Mich. App. 560, 563, 474 N.W.2d 148 (1991). Thus, an employee
injured while working at the lower paying of two jobs would be entitled to
benefits based on the wages earned in the lower paying employment, even though
the disability caused by that employment resulted in the loss of wages from a
much higher paying job as well.
M.C.L. '
418.371; M.S.A. '
17.237(371) was amended so that an employee's rate of benefit is based on the
earnings in all the employee's employments as of the time of the injury. In an obvious effort to avoid hardship to
the "injury employer," the Legislature enacted M.C.L. '
418.372; M.S.A. '
17.237(372) to apportion the payment of benefits between the "injury
employer" and the "noninjury employer." The Second Injury Fund
is responsible for paying the portion of benefits attributable to wages lost from
the noninjury employer. M.C.L. ' 418.372(1)(b); M.S.A. '17.237(372)(1)(b)
provides:
If
the employment which caused the personal injury or death provided 80% or less
of the employee's average weekly wage at the time of the personal injury or
death, the insurer or self-insurer is liable for that portion of the employee's
weekly benefits as bears the same ratio to his or her total weekly benefits as
the average weekly wage from the employment which caused the personal injury or
death bears to his or her total weekly wages. The second injury fund is
separately but dependently liable for the remainder of the weekly benefits.
M.C.L. 418.372(2); M.S.A. 17.237(372)(2) further provides that A[f]or
purposes of apportionment under this section, only wages which were reported to
the internal revenue service shall be considered, and the reports of wages to
the internal revenue service are conclusive for the purpose of apportionment
under this section." The effect of this language is at the heart of the Gilbert v. Second Injury Fund case.
B. The Gilbert v. Second Injury Fund
Decision.
This worker's
compensation case concerns the application of the dual employment provisions of
M.C.L. '
418.372; M.S.A. '
17.237(372). Gilbert was injured on
October 11, 1991, while working in a farm business owned by the Kerbers. Farm Bureau Mutual Insurance Company was the
Kerbers' worker's compensation carrier. At the time of his injury, Gilbert was
also employed by the Hexcel Corporation. Gilbert's average weekly wage from Hexcel
was about $875, while his average weekly wage from the Kerbers was about
$64. Because Gilbert was injured in the
course of his employment with an employer that did not report Gilbert's wages
to the Internal Revenue Service, the magistrate and the Worker's Compensation
Appellate Commission concluded that it was impossible to apportion benefits
between Gilbert's employments and that the "injury employer" was one
hundred percent responsible for all benefits based on Gilbert's earnings from
all employers. This result was reached even though the injury employer paid
only about seven percent of Gilbert's wages.
The
Court of Appeals= previous opinion in this case, Gilbert v. Second
Injury Fund, 237 Mich. App. 101, 603 N.W.2d 104 (1999), was vacated by the
Supreme Court. 463 Mich. 866, 616 N.W.2d
161 (2000). The order vacating the prior decision remanded the matter to the
Court of Appeals for reconsideration in light of Sun Valley Foods Co. v.
Ward, 460 Mich. 230, 596 N.W.2d 119 (1999), and Tyler v. Livonia Public
Schools, 459 Mich. 382, 590 N.W.2d 560 (1999). The remand order directed the Court of
Appeals to follow the principles articulated in Sun Valley and Tyler
and to take note of a discussion in People v. McIntire, 461 Mich. 147,
156, n. 3, 599 N.W.2d 102 (1999), regarding the "problems inherent in the
so-called >absurd result= rule of
statutory construction." 463 Mich.
at 867, 616 N.W.2d 161. The order of remand pointed out that in its prior
decision the Court of Appeals declined to apply M.C.L. ' 418.372(2);
M.S.A. ' 17.237(372)(2)
(dealing with the treatment of unreported income) without noting any ambiguity
in the statutory language.
In
its prior decision the Court of Appeals concluded that the results reached in
the case by applying M.C.L. ' 418.372(2);
M.S.A. ' 17.237(372)(2) were absurd because applying the
statute did not lead to a result apportioning liability between the employer
and the Second Injury Fund, contrary to the Court=s
perception that the Legislature intended such an apportionment under Section
372. Under the statute the Fund would typically pay about 93% of
Gilbert=s
benefits because that is the percentage of the employee's total wages paid by
Hexcel, the noninjury employer. 244 Mich.
App. at 331, 625 N.W.2d at 118. However, the injury employer (the Kerbers) did
not report plaintiff's wages to the Internal Revenue Service. The Fund argued
that because the Kerbers reported none of Gilbert=s
earnings to the IRS, there is nothing to apportion and, so it follows, the
injury employer is 100% responsible for Gilbert=s
worker=s
compensation benefits. The Court of
Appeals reached the opposite result, finding the Fund to be 100% liable for
Gilbert=s
benefits.
The apportionment
language of the worker=s
compensation statute provides that the injury employer is liable for the
portion of the employee's weekly benefits equivalent to the portion of the
employee's total wages paid by the injury employer. The statute describes the ratio as follows:
[T]hat portion of the
employee's weekly benefits as bears the same ratio to his or her total weekly
benefits as the average weekly wage from the employment which caused the
personal injury or death bears to his or her total weekly wages.
M.C.L. ' 418.372(1)(b);
M.S.A. ' 17.237(372)(1)(b). However, as the Court observed, when the
apportionment provision is applied in the instant case, the wages paid by the
injury employer are zero because those wages were unreported to the IRS. Under subsection 372(2) those wages are not
to be considered for purposes of apportionment. Subsection 372(2) is not
ambiguous, the Court of Appeals wrote. That subsection states:
For purposes of
apportionment under this section, only wages which were reported to the
internal revenue service shall be considered, and the reports of wages to the
internal revenue service are conclusive for the purpose of apportionment under
this section.
The "this section" referred to is
M.C.L. '
418.372; M.S.A. '
17.237(372). "Apportionment" is provided for in
subsection 372(1). Subsection 372(2)
does not distinguish between injury and noninjury employers. Subsection 372(2)
precludes consideration of unreported wages for purposes of apportionment.
Thus, the Court concluded, the portion of Gilbert's weekly benefits that is
equivalent to the portion of the wages paid by the Kerbers is zero, because the
wages paid by the Kerbers were unreported and therefore cannot be considered.
Consequently, the Fund was held liable for the "remainder" of
Gilbert's weekly benefits, which is one hundred percent of the weekly benefits.
Although
not mentioned by the Court of Appeals, the result in the case creates a
perverse incentive for employers to pay their employees and not report the
wages to the Internal Revenue Service.
By doing so, an employer can thereby avoid liability for worker=s compensation benefits in cases involving dual
employment by an injured employee.
Question Presented
Should the dual employment provisions of the worker=s compensation
act be amended to clarify how apportionment of benefits
is to be made?
Recommendation
The Commission recommends that the Legislature review
the Gilbert v. Second Injury Fund decision to ensure that its result
accurately reflects the Legislature=s intent
when it enacted the dual employment provisions of the worker=s compensation law.
V.
Qualifications of Health Professional Signing Affidavit of
Merit under M.C.L. ' 600.2912d in Medical Malpractice Claim.
A. Background.
M.C.L. '
600.2912d(1) requires that "the plaintiff in an action alleging medical malpractice
. . . 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 [M.C.L.'
600.2169]." M.C.L. '
600.2169(1) in turn states that
[i]n 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:
* * * *
(c) 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.
The issue before the Court of
Appeals in Decker v. Flood was whether an affidavit of merit signed by a
specialist satisfied M.C.L. '
600.2912d(1) in a medical malpractice case brought against a general
practitioner.
B. The Decker v. Flood Decision.
In 1997, defendant
Flood examined plaintiff Decker who was complaining of pain, determined that
plaintiff needed a root canal on two of his teeth, and began the procedure on
that date. On January 21, 1997, the same day that defendant completed the root
canal procedure, plaintiff began to experience pain, telephoned defendant, and
was instructed to return to defendant's office. According to plaintiff's
complaint, after defendant administered three successive injections of
Novocaine, plaintiff became cold, began to shake, and eventually stopped
breathing. Plaintiff further alleged that defendant administered
cardiopulmonary resuscitation. Plaintiff was taken by ambulance to a hospital
and released the following day.
Attached to the
plaintiff=s
complaint was an affidavit of merit signed by Michael J. Gallagher, DDS.
According to the affidavit, Dr. Gallagher is a "doctor of dental
surgery" and a member of the American Association of Endodontists
Specialists Members. In the affidavit, Dr. Gallagher stated that he was
familiar with the standard of practice for a dental surgeon treating a patient
with plaintiff's complaints and opined that defendant breached the standard of
practice by failing to properly drill, clean, fill, or pack the root canal or
properly remove the tissue and filling material. Dr. Gallagher also claimed
that defendant's breach of the standard of practice was a proximate cause of plaintiff's
pain, and Dr. Gallagher "had to perform a root canal retreatment" on
plaintiff's teeth to address plaintiff's pain.
Defendant filed a
motion for summary disposition on the ground that defendant Flood was a dentist
in general practice in January 1997 and that M.C.L. '
600.2912d required plaintiff to file with his complaint an affidavit of merit
signed by a health professional who plaintiff=s
attorney reasonably believed met the requirements of M.C.L. '
600.2169. According to defendant, Dr. Gallagher specialized in endodontics and,
therefore, plaintiff failed to file an affidavit of merit that met the
requirements of M.C.L. '
600.2912d and M.C.L. '
600.2169.
In response to
defendant=s
motion, plaintiff argued that both defendant and Dr. Gallagher are general
practitioners who perform root canals with the sole difference being that Dr.
Gallagher performs only root canals. Plaintiffs argued that the statute
"did not make sense" because it precluded Dr. Gallagher, whose
practice was limited to root canals, from giving expert testimony on the
standard of practice for root canals. Plaintiffs further argued that the
statute was intended to prevent a professional who has no experience at all in
a given area from rendering an expert opinion.
The trial court
rejected plaintiffs' argument that Dr. Gallagher was a general practitioner and
found that the evidence was uncontroverted that he specialized in root canals.
The trial court also stated that the statute clearly precludes an expert who is
not a general practitioner from giving expert testimony on the standard of
practice required for a general practitioner.
The
Court of Appeals affirmed. Because the term Ageneral
practitioner@ is not defined in the statute and does not appear to
be a technical term, the Court looked to its plain and ordinary meaning. A
general practitioner is commonly defined as "a medical practitioner whose
practice is not limited to any specific branch of medicine." Random
House Webster's College Dictionary (1997). By contrast, a specialist is
defined as "a medical practitioner who deals only with a particular class
of diseases, conditions, patients, etc." Id. It was undisputed that Dr. Gallagher is an
endodontist, which is defined as "one who specializes in the
practice of endodontics." Stedman's Medical Dictionary (26th
ed.)(emphasis added). Applying the ordinary meaning of general practitioner as
one who does not limit his practice to any particular branch of medicine, Dr.
Gallagher clearly does not satisfy the requirements of M.C.L. '
600.2169, according to the Court. Therefore, he would not be qualified to offer
expert testimony on the standard of practice of a general practitioner such as
defendant Flood. Because Dr. Gallagher is precluded by M.C.L. '
600.2169 from testifying regarding defendant's standard of practice, the Court
agreed that there is no genuine dispute that the affidavit of merit attached to
plaintiff=s
complaint does not comply with the requirements of M.C.L. '
600.2912d(1), and defendant was entitled to judgment as a matter of law.
In
response to the plaintiff=s argument that the trial court=s interpretation of the statute leads to an absurd
result, the Court noted:
[O]ur Supreme Court
repudiated the use of the "absurd result" rule of statutory
construction in a case such as this where the language of the statute is
unambiguous. People v. McIntire, 461 Mich. 147, 155-158; 599 NW2d 102
(1999). The Supreme Court's decision in McIntire precludes this Court
from utilizing rules of statutory construction to impose different policy
choices than those selected by the Legislature. Id. at 152. "[I]n
our democracy, a legislature is free to make inefficacious or even unwise
policy choices. The correction of these policy choices is not a judicial
function as long as the legislative choices do not offend the
constitution." Id. at 159. Clearly, it is not within our authority
to second-guess the wisdom or reasonableness of unambiguous legislative
enactments even where the literal interpretation of the statute leads to an
absurd result.
248 Mich. App. 74, 84, 638
N.W.2d 163, 167.
In a
concurring opinion, Judge Neff expressed some reservations about the Court=s result, recommending that the Legislature examine
this question:
This Court has
previously addressed the fading logic in standard of care distinctions between
general practitioners and specialists in cases such as this, where there is an
overlap between the procedures performed by general practitioners and those who
have specialized practices. I concur with the well-reasoned opinion in
Vance, supra, in which Chief Judge Doctoroff stressed the need for further
consideration and modification of standard of care requirements in view of the
prolific advancements in communication and technology in recent years. . . .
Today's communication and technology capabilities render meaningless any
distinction in the standard of care "where a general practitioner is
providing a service that has become uniform throughout the nation such as a
root canal. . . ." Accordingly, I would urge the Legislature to revisit
these requirements.
248 Mich. App. 74, 87-88, 638
N.W.2d 163, 169.
Question Presented
Should the affidavit of merit standards of M.C.L. ' 600.2912d be
modified to better reflect meaningful distinctions
between the standard of
care for general practitioners and the standard of
care for specialists?
Recommendation
The Commission makes no recommendation to the
Legislature.
[1] The 1998 amendments of the act substituted the word "disability" for the word "handicap" and changed the title of the Act to the APersons With Disabilities Act.@ 1998 P.A. 20.