A Report on Recent Court Decisions Identifying Statutes for Legislative Action and Recommendations to the Legislature
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).
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).
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?
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.
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). 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.
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(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.
Should the Persons With Disabilities Act be amended to include within
its scope of protection discrimination based on the possibility of a future disability?
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.
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.
Should the dual employment provisions of the worker=s compensation
act be amended to clarify how apportionment of benefits is to be made?
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.
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:
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(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.
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?
The Commission makes no recommendation to the Legislature.
 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.