Greathouse v. Rhodes , 248 Mich. App. 698 ( 2001 )

650 N.W.2d 351 (2001) 248 Mich. App. 698

Sally GREATHOUSE, as Personal Representative of the Estate of Robert Greathouse, Plaintiff-Appellant/Cross-Appellee,
v.
Dr. Charles RHODES, M.D. and Southwestern Medical Clinic, Defendants-Appellees/Cross-Appellants, and
Dr. John Duge, M.D. and University Medical Specialists, Defendants-Appellees.

Docket No. 214434.

Court of Appeals of Michigan.

Submitted October 31, 2001, at Grand Rapids. Decided December 14, 2001, at 9:10 a.m.

Ferris & Salter, P.C. by Heidi Salter-Ferris, Ann Arbor, for Sally Greathouse.

Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for Charles Rhodes, M.D., and Southwestern Medical Clinic

Before: SAAD, P.J., and JANSEN and TALBOT, JJ.

ON REMAND

PER CURIAM.

Our Supreme Court has reversed in part our prior judgment in this matter and remanded this case to our Court with instructions to determine whether M.C.L. § 600.2169(1) applies under the facts and, if so, to consider the effect of our Supreme Court's decision in McDougall v. Schanz, 461 Mich. 15, 597 N.W.2d 148 (1999). 465 Mich. 885 (2001). The facts and issues are set out in our previous decision, Greathouse v. Rhodes, 242 Mich.App. 221, 618 N.W.2d 106 (2000).

In its order remanding this case, our Supreme Court reversed our holding that the trial court properly denied plaintiff's motion to strike Dr. Charles Rhodes' standard of care witnesses under M.C.L. § 600.2169(1)(a) because plaintiff failed to file her motion within a reasonable time after learning the identities of the experts. Greathouse, supra, 242 Mich.App. at 231, 618 N.W.2d 106. Because plaintiff did not forfeit her right to challenge Dr. Rhodes' witnesses on the basis of the time of her challenge, we now consider the trial court's ruling regarding the application of M.C.L. § 600.2169(1)(a).

We hold that this case implicates § 2169 because plaintiff challenges the qualifications of Dr. Rhodes' "standard of care" witnesses because they are not board certified in the same specialty. Though the trial court initially granted plaintiff's motion on the basis of § 2169, it ultimately denied plaintiff's motion to strike because "it was compelled to adhere to the McDougall v. Eliuk, 218 Mich.App. 501, 554 N.W.2d 56 (1996)] holding that § 2169 was unconstitutional...." Greathouse, supra, 242 Mich.App. at 226, 618 N.W.2d 106. As we observed in our prior opinion, "our Supreme Court reversed McDougall and concluded that § 2169 is `an enactment of substantive law' and `[a]s such does not impermissibly infringe this Court's constitutional rule-making authority.'" Greathouse, supra, 242 Mich.App at 228, 618 N.W.2d 106, quoting McDougall v. Schanz, supra, 461 Mich. at 37, 597 N.W.2d 148. Therefore, we ruled that the basis for the trial court's decision was erroneous. Greathouse, supra, 242 Mich.App. at 228, 618 N.W.2d 106.

Accordingly, we reverse the trial court's order denying on the basis of the alleged unconstitutionality of § 2169 plaintiff's motion to strike, and we remand for consideration of plaintiff's motion under the statute. Specifically, the trial court should determine the merits of plaintiff's motion in which she argued that Dr. Rhodes' "standard of care" witnesses do not comply with § 2169 because Dr. Rhodes is a board-certified general surgeon and the proposed witnesses are not; one witness is an internal medicine specialist, and the other two are board-certified family practitioners. Further, the trial court should consider Dr. Rhodes' argument that § 2169 does not preclude his witnesses because he does not practice general surgery regularly and did not practice general surgery on the decedent, Robert Greathouse.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.