Angelina a Cox v. Eric J Hartman Md , 322 Mich. App. 292 ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
LEANA M. COX, formerly known as LEANA M. FOR PUBLICATION
TARAVELLA, Individually and as Next Friend of December 12, 2017
ANGELINA A. COX, a Minor, 9:10 a.m.
Plaintiff-Appellant,
v Nos. 333849; 333994
St. Clair Circuit Court
ERIC J. HARTMAN, M.D., and BLUE WATER LC No. 2014-002074-NH
OBSTETRICS AND GYNECOLOGY
PROFESSIONAL CORPORATION, doing
business as BLUEWATER OB GYN, PC,
Defendants,
and
TRACEY McGREGOR, R.N., and PORT
HURON HOSPITAL,
Defendants-Appellees.
Before: JANSEN, P.J., and CAVANAGH and CAMERON, JJ.
PER CURIAM.
These consolidated appeals arise from the same medical malpractice case. In Docket No.
333849, plaintiff, Leana M. Cox, formerly known as Leana M. Taravella (plaintiff), individually
and as next friend of Angelina A. Cox (Angelina), a minor, appeals by leave granted1 a June 6,
2016 opinion and order granting summary disposition in favor of defendants Tracey McGregor,
R.N., and Port Huron Hospital pursuant to MCR 2.116(C)(10). In Docket No. 333994, plaintiff
appeals by leave granted2 a July 6, 2016 order denying plaintiff’s motion for leave to name a new
1
See Cox v Hartman, unpublished order of the Court of Appeals, entered January 20, 2017
(Docket No. 333849).
2
See Cox v Hartman, unpublished order of the Court of Appeals, entered January 20, 2017
(Docket No. 333994).
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nursing expert and to file an amended affidavit of merit. The appeals were consolidated. Cox v
Hartman, unpublished order of the Court of Appeals, entered January 20, 2017 (Docket No.
333849); Cox v Hartman, unpublished order of the Court of Appeals, entered January 20, 2017
(Docket No. 333994). We affirm in both appeals.
This case arises out of alleged malpractice on the part of defendant Eric J. Hartman,
M.D., and McGregor, a registered nurse, related to the birth of plaintiff’s daughter, Angelina, on
April 26, 2010, at Port Huron Hospital. Dr. Hartman delivered Angelina, and McGregor assisted
in the delivery. Dr. Hartman was an owner and employee of defendant Blue Water Obstetrics
and Gynecology Professional Corporation, doing business as Blue Water OB GYN, PC (Blue
Water). McGregor was an employee of Port Huron Hospital. Plaintiff filed this medical
malpractice action alleging negligence on the part of Dr. Hartman and vicarious liability of Blue
Water for Dr. Hartman’s negligence. Plaintiff also asserted a claim of professional negligence
against McGregor. Plaintiff alleged that Port Huron Hospital was vicariously liable for the
negligence of McGregor.3
After discovery, McGregor and Port Huron Hospital (hereinafter referred to collectively
as defendants, given that Dr. Hartman and Blue Water are not involved in these appeals) filed a
motion for summary disposition pursuant to MCR 2.116(C)(10). As relevant to these appeals,
defendants argued that plaintiff’s proposed nursing expert, Claudia A. Beckmann, was not
qualified to offer standard of care testimony against McGregor pursuant to MCL 600.2169(1),
and that defendants were thus entitled to summary disposition with respect to plaintiff’s nursing
malpractice claim. Defendants argued that, during the year immediately preceding the alleged
malpractice, Beckmann did not devote the majority of her professional time to the active clinical
practice or teaching of labor and delivery nursing, or even nursing more generally. Instead,
Beckmann devoted the majority of her professional time to instructing students in a nurse
practitioner graduate program at Rutgers University. In response to defendants’ motion, plaintiff
contended that Beckmann was qualified to testify as an expert witness on the standard of care for
a registered nurse. Plaintiff argued that Beckmann devoted the majority of her professional time
in the year preceding the alleged malpractice to instructing students in the nursing profession. In
particular, plaintiff suggested that, by teaching nurse practitioner students, Beckmann was
providing instruction in the same profession in which McGregor was licensed. The trial court
ultimately agreed with defendants’ argument and granted summary disposition to defendants on
the nursing malpractice claim. Plaintiff then moved for leave to name a new nursing expert and
to amend the affidavit of merit regarding the nursing malpractice claim; the trial court denied
plaintiff’s motion. These appeals followed.
Plaintiff argues on appeal that the trial court erred in determining that Beckmann was
unqualified to testify as an expert witness concerning the standard of care applicable to
McGregor and that the court erred in granting summary disposition to defendants. We disagree.
A trial court’s ruling regarding the qualification of a proposed expert witness to testify is
reviewed for an abuse of discretion. Woodard v Custer, 476 Mich. 545, 557; 719 NW2d 842
3
Plaintiff asserted additional claims that are not relevant to these appeals.
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(2006). An abuse of discretion occurs when the trial court’s decision falls outside the range of
principled outcomes. Id. This Court reviews de novo issues of statutory interpretation. Sturgis
Bank & Trust Co v Hillsdale Community Health Ctr, 268 Mich. App. 484, 489; 708 NW2d 453
(2005).
The primary goal of judicial interpretation of statutes is to ascertain and
give effect to the intent of the Legislature. The first step is to examine the plain
language of the statute itself. The Legislature is presumed to have intended the
meaning it plainly expressed. If the statutory language is clear and unambiguous,
appellate courts presume that the Legislature intended the meaning plainly
expressed, and further judicial construction is not permitted. [McElhaney ex rel
McElhaney v Harper-Hutzel Hosp, 269 Mich. App. 488, 493; 711 NW2d 795
(2006) (citations omitted).]
“When a statute specifically defines a given term, that definition alone controls.” Haynes v
Neshewat, 477 Mich. 29, 35; 729 NW2d 488 (2007). Court rules are interpreted in the same
manner as statutes. In re KH, 469 Mich. 621, 628; 677 NW2d 800 (2004). If the language of a
court rule is unambiguous, it must be enforced as written. Id.
A trial court’s decision on a motion for summary disposition is reviewed de novo.
Johnson v Recca, 492 Mich. 169, 173; 821 NW2d 520 (2012).
In reviewing a motion under MCR 2.116(C)(10), this Court considers the
pleadings, admissions, affidavits, and other relevant documentary evidence of
record in the light most favorable to the nonmoving party to determine whether
any genuine issue of material fact exists to warrant a trial. Summary disposition
is appropriate if there is no genuine issue regarding any material fact and the
moving party is entitled to judgment as a matter of law. A genuine issue of
material fact exists when the record, giving the benefit of reasonable doubt to the
opposing party, leaves open an issue upon which reasonable minds might differ.
[Bank of America, NA v Fidelity Nat’l Title Ins Co, 316 Mich. App. 480, 488; 892
NW2d 467 (2016) (quotation marks and citations omitted).]
“The plaintiff in a medical malpractice action bears the burden of proving: (1) the
applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4)
proximate causation between the alleged breach and the injury. Failure to prove any one of these
elements is fatal.” Cox ex rel Cox v Bd of Hosp Managers for City of Flint, 467 Mich. 1, 10; 651
NW2d 356 (2002) (quotation marks and citation omitted). Although nurses do not engage in the
practice of medicine, the Legislature has made malpractice actions available against any licensed
health care professional, including nurses. Id. at 19-20, citing MCL 600.5838a; see also Sturgis,
268 Mich. App. at 490. In general, expert testimony is necessary in a malpractice action to
establish the applicable standard of care and the defendant’s breach of that standard. Elher v
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Misra, 499 Mich. 11, 21; 878 NW2d 790 (2016);4 see also Gay v Select Specialty Hosp, 295 Mich
App 284, 292; 813 NW2d 354 (2012) (noting that a plaintiff alleging nursing malpractice was
required to present evidence concerning the applicable standard of care and that the plaintiff
“could do so only through an expert’s testimony.”). “The proponent of the evidence has the
burden of establishing its relevance and admissibility.” Elher, 499 Mich. at 22; see also Gay, 295
Mich. App. at 293 (explaining that “the party proposing to call an expert bears the burden to show
that his or her expert meets [the requisite statutory] qualifications.”).
MCL 600.2169(1) provides, in relevant part:
(1) In 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:
* * *
(b) Subject to subdivision (c) [which is not relevant here], 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) The active clinical practice of the same health profession in which the
party against whom or on whose behalf the testimony is offered is licensed and, if
that party is a specialist, the active clinical practice of that specialty.
(ii) The 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 and, if that party is a specialist, an accredited health professional school
or accredited residency or clinical research program in the same specialty.
A majority means more than 50 percent. Kiefer v Markley, 283 Mich. App. 555, 559; 769 NW2d
271 (2009). MCL 600.2169(1)(b) “makes no qualification of its applicability and, therefore,
must be considered to apply generally to all malpractice actions, including those initiated against
nonphysicians.” McElhaney, 269 Mich. App. at 494. Therefore, plaintiff’s proposed expert
witness on the standard of care, Beckmann, must have devoted a majority of her professional
time in the year immediately preceding April 26, 2010, the date of the alleged malpractice, to the
4
An exception to the requirement of expert testimony “exists when the professional’s breach of
the standard of care is so obvious that it is within the common knowledge and experience of an
ordinary layperson.” Elher, 499 Mich. at 21-22. Plaintiff does not argue that this exception
applies, nor do we discern any basis to conclude that plaintiff’s allegations of nursing
malpractice fall within the common knowledge and experience of an ordinary layperson.
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active clinical practice of, or the instruction of students in, the same health profession in which
McGregor was licensed, i.e., that of a registered nurse.
Beckmann’s deposition testimony establishes that she devoted a majority of her
professional time in the year immediately preceding April 26, 2010, to the practice of, or the
instruction of students in, the health profession of a nurse practitioner, which, as explained
below, is different from the health profession of a registered nurse. According to Beckmann’s
curriculum vitae, she has, among other degrees, a post-master’s certificate as a women’s health
nurse practitioner. Beckmann testified that, during the relevant time period,5 she was the
coordinator of the women’s health nurse practitioner graduate program in the college of nursing
at Rutgers University; in this position, she instructed nurse practitioner students. The nurse
practitioner courses that she taught lasted the entire semester. Beckmann lectured nurse
practitioner students in an academic setting and provided clinical training to nurse practitioner
students. Beckmann also gave labor and delivery lectures in an undergraduate maternity nursing
program, but this lecturing comprised a smaller percentage of her professional time than the time
devoted to instructing nurse practitioner students; she spent only about six hours each semester
lecturing undergraduate nursing students. Beckman spent a couple days each semester filling in
clinically for faculty members who were teaching a course. The percentage of her professional
time lecturing on labor and delivery to undergraduate nursing students and performing hands-on
clinical work was less than 50%. It is clear from Beckmann’s deposition testimony that, in the
year immediately preceding April 26, 2010, she devoted a majority of her professional time to
the practice of, or the instruction of students in, the health profession of a nurse practitioner.6
It is thus necessary to determine whether a nurse practitioner is the same health
profession as a registered nurse. Our Supreme Court has looked to the definition of “health
profession” contained in MCL 333.16105(2), a provision of the Public Health Code (PHC), when
interpreting MCL 600.2169(1)(b). See Bates v Gilbert, 479 Mich. 451, 459; 736 NW2d 566
5
In his initial questioning of Beckmann, defense counsel mistakenly asked about the period of
April 2008 to April 2009 rather than the period of April 2009 to April 2010, but defense counsel
noted his mistake later in the deposition, and Beckmann then confirmed that all of her answers to
the questions concerning how she spent her professional time during the period of April 2008 to
April 2009 would be identical for the period of April 2009 to April 2010.
6
In an affidavit appended to plaintiff’s response to defendants’ motion for summary disposition,
Beckmann asserted in conclusory terms that she devoted more than 50% of her time in the year
preceding April 26, 2010, to the instruction of students in the health profession of nursing.
“However, a witness is bound by his or her deposition testimony, and that testimony cannot be
contradicted by affidavit in an attempt to defeat a motion for summary disposition.” Casey v
Auto Owners Ins Co, 273 Mich. App. 388, 396; 729 NW2d 277 (2006). As discussed,
Beckmann’s deposition testimony established that she spent a majority of her professional time
during the relevant time period practicing or instructing as a nurse practitioner, and as explained
below, the health profession of nursing is different from the health profession of a nurse
practitioner. Therefore, despite the conclusory assertions in Beckmann’s affidavit, this Court is
required to accept as binding Beckmann’s deposition testimony. Id.
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(2007). MCL 333.16105(2) defines a “health profession” as “a vocation, calling, occupation, or
employment performed by an individual acting pursuant to a license or registration issued under
this article.” (Emphasis added.) The PHC defines a “registration” as “an authorization only for
the use of a designated title which use would otherwise be prohibited under this article.
Registration includes specialty certification of a licensee and a health profession specialty field
license.” MCL 333.16108(2) (emphasis added). Thus, the statutory definition of “health
profession” indicates that a health profession may be determined by reference to a license or a
registration, and a registration includes a specialty certification.
The PHC defines a “registered professional nurse” or “r.n.” as “an individual who is
licensed under this part to engage in the practice of nursing which scope of practice includes the
teaching, direction, and supervision of less skilled personnel in the performance of delegated
nursing activities.” MCL 333.17201(e). The “practice of nursing” is defined as
the systematic application of substantial specialized knowledge and skill, derived
from the biological, physical, and behavioral sciences, to the care, treatment,
counsel, and health teaching of individuals who are experiencing changes in the
normal health processes or who require assistance in the maintenance of health
and the prevention or management of illness, injury, or disability. [MCL
333.17201(c).]
A “certified nurse practitioner” is “an individual who is licensed as a registered professional
nurse under part 172 who has been granted a specialty certification as a nurse practitioner by the
Michigan board of nursing under section 17210.” MCL 333.2701(c). See also Cox, 467 Mich. at
10 n 10 (noting that a “nurse practitioner” “is a specialized term used in nursing that refers to a
registered nurse who receives advanced training and is qualified to undertake some of the duties
and responsibilities formerly assumed only by a physician.”). MCL 333.17210(1) provides:
(1) The Michigan board of nursing may grant a specialty certification to a
registered professional nurse who has advanced training beyond that required for
initial licensure, who has demonstrated competency through examination or other
evaluative processes, and who practices in 1 of the following health profession
specialty fields:
(a) Nurse midwifery.
(b) Nurse anesthetist.
(c) Nurse practitioner.
(d) Subject to subsection (2) [not relevant here], clinical nurse specialist.
[Emphasis added.]
At the time of the alleged malpractice, McGregor was practicing the health profession of
nursing pursuant to her license as a registered nurse. In the year immediately preceding the
alleged malpractice, Beckmann devoted the majority of her professional time to instructing or
practicing in the health profession of a nurse practitioner pursuant to her registration or specialty
certification as a nurse practitioner. The health profession of nursing and the health profession of
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a nurse practitioner are different, as reflected in the fact that the former is practiced pursuant to a
license while the latter is practiced pursuant to a registration or specialty certification. Because
Beckmann did not spend the majority of her professional time in the year preceding the alleged
malpractice practicing or teaching the health profession of nursing, as opposed to the health
profession of a nurse practitioner, she did not satisfy the statutory criteria to testify concerning
the standard of care applicable to McGregor, a registered nurse. Beckmann’s testimony was thus
properly excluded.
We find support for the above reasoning in Woodard. In Hamilton v Kulgowski, which
was a companion case to Woodard, the defendant physician was board certified in general
internal medicine and specialized in general internal medicine. Woodard, 476 Mich. at 556. The
plaintiff’s proposed expert witness was board certified in general internal medicine but devoted a
majority of his professional time to the treatment of infectious diseases, which is a subspecialty
of internal medicine. Id. The trial court granted a directed verdict in favor of the defendant
physician, reasoning that the plaintiff’s proposed expert witness was not qualified given that he
specialized in infectious diseases and did not devote a majority of his professional time to
practicing or teaching general internal medicine. Id. Our Supreme Court held that the trial court
had properly granted a directed verdict to the defendant physician. Id. at 579. Our Supreme
Court explained:
The defendant physician specializes in general internal medicine and was
practicing general internal medicine at the time of the alleged malpractice.
During the year immediately preceding the alleged malpractice, plaintiff’s
proposed expert witness did not devote a majority of his time to practicing or
teaching general internal medicine. Instead, he devoted a majority of his
professional time to treating infectious diseases. As he himself acknowledged, he
is “not sure what the average internist sees day in and day out.” Therefore,
plaintiff’s proposed expert witness does not satisfy the same practice/instruction
requirement of § 2169(1)(b).
For this reason, the trial court did not abuse its discretion in concluding
that plaintiff’s proposed expert witness is not qualified to testify regarding the
appropriate standard of practice or care under § 2169(1). Because plaintiff failed
to present an expert qualified under § 2169(1) to testify with regard to the
appropriate standard of practice or care, the trial court properly granted a directed
verdict in favor of defendant. [Id. at 578.]
We find this reasoning in Woodard applicable in the analogous context of nursing and supportive
of our analysis. Given that Beckmann did not spend a majority of her professional time in the
relevant time period practicing or teaching the health profession of nursing, she was not qualified
to testify regarding the appropriate standard of care under MCL 600.2169(1)(b).
“On a motion for summary disposition, the existence of a disputed fact may only be
established by admissible evidence.” McElhaney, 269 Mich. App. at 497. Beckmann’s testimony
was not admissible to establish the standard of care applicable to McGregor, plaintiff presented
no other expert witnesses concerning the standard of care applicable to McGregor, and plaintiff
thus failed to establish a genuine issue of material fact regarding the applicable standard of care
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and the breach of that standard. Accordingly, the trial court properly granted summary
disposition to defendants. See id. at 497-498 (where the testimony of the plaintiff’s proposed
expert witness was not admissible under MCL 600.2169(1)(b) to establish the standard of care,
the defendant was entitled to summary disposition because the plaintiff failed to establish a
genuine issue of material fact regarding the standard of care and the breach of that standard).
Plaintiff argues that, in its opinion and order granting summary disposition to defendants,
the trial court violated MCR 7.215(C)(1) by citing and relying on an unpublished opinion for a
proposition of law for which there was published authority, i.e., Sturgis and McElhaney. We
disagree. MCR 7.215(C)(1) provides:
An unpublished opinion is not precedentially binding under the rule of
stare decisis. Unpublished opinions should not be cited for propositions of law
for which there is published authority. If a party cites an unpublished opinion, the
party shall explain the reason for citing it and how it is relevant to the issues
presented. A party who cites an unpublished opinion must provide a copy of the
opinion to the court and to opposing parties with the brief or other paper in which
the citation appears.
Although MCR 7.215(C)(1) provides that unpublished opinions are not binding under the rule of
stare decisis, a court may nonetheless consider such opinions for their instructive or persuasive
value. Paris Meadows, LLC v City of Kentwood, 287 Mich. App. 136, 145 n 3; 783 NW2d 133
(2010). MCR 7.215(C)(1) requires a party to explain the reason for citing an unpublished
opinion and how it is relevant to the issues presented, but the court rule does not impose this
requirement on a trial court. In any event, the trial court more than adequately explained why it
was citing an unpublished opinion. The trial court stated: “Although unpublished, because of the
nearly identical factual situation; the straightforward, logical analysis that takes every word of
MCL 600.2169(1)(b) into account; and the reliance on a rational interpretation of binding
precedent, this Court finds the analysis, reasoning, and holding in [the unpublished opinion cited
by the trial court] to be extremely persuasive.”
Moreover, contrary to plaintiff’s argument, there is no published authority addressing the
precise issue presented in this case. Plaintiff’s reliance on Sturgis and McElhaney is misplaced.
In Sturgis, 268 Mich. App. at 486-487, the plaintiff sued the defendant-hospital for the
alleged negligence of its nursing staff. Pursuant to MCL 600.2912d(1), the plaintiff attached to
its complaint affidavits of merit from a registered nurse and a nurse practitioner. Id. at 487. The
defendant agreed that the nurse and the nurse practitioner who signed the affidavits of merit were
employed in the same health profession as the nurses who allegedly committed the malpractice
but argued that the proposed experts were not qualified to aver with respect to the proximate
cause of the injury. Id. This Court held that the affidavits were sufficient. Id. at 489. This
Court stated that MCL 600.2169(1) “only requires that the affiants, the nurse and the nurse
practitioner, practice or teach in the same health profession as those who committed the alleged
malpractice, i.e., defendant’s nurses. Either the nurse’s affidavit or the nurse practitioner’s
affidavit sufficed.” Id. at 492. This Court found support for its decision in Grossman v Brown,
470 Mich. 593; 685 NW2d 198 (2004), in which “our Supreme Court noted the need for a
plaintiff in a medical malpractice action to obtain a medical expert at two different stages of the
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litigation, i.e., at the time the complaint is filed and at the time of trial [and] recognized the
differing features of [MCL 600.2912d(1) (governing affidavits of merit)] and [MCL 600.2169
(governing testimony at trial).]” Sturgis, 268 Mich. App. at 493-494. At the affidavit of merit
stage, the plaintiff’s attorney needs only to hold a reasonable belief that the expert signing the
affidavit of merit satisfies the requirements for an expert witness under MCL 600.2169. See
Sturgis, 268 Mich. App. at 490-491, citing MCL 600.2912d(1). The Sturgis Court quoted the
following language from Grossman:
The Legislature’s rationale for this disparity is, without doubt, traceable to
the fact that until a civil action is underway, no discovery is available. See MCR
2.302(A)(1). Thus, the Legislature apparently chose to recognize that at the first
stage, in which the lawsuit is about to be filed, the plaintiff’s attorney only has
available publicly accessible resources to determine the defendant’s board
certifications and specialization. At this stage, the plaintiff’s attorney need only
have a reasonable belief that the expert satisfies the requirements of MCL
600.2169. See MCL 600.2912d(1). However, by the time the plaintiff’s expert
witness testifies at trial, the plaintiff’s attorney has had the benefit of discovery to
better ascertain the qualifications of the defendant’s physician, and, thus, the
plaintiff’s attorney’s reasonable belief regarding the requirements of MCL
600.2169 does not control whether the expert may testify. [Sturgis, 268 Mich
App at 494, quoting Grossman, 470 Mich. at 599.]
The Sturgis Court also quoted language from Grossman noting that what satisfies the statutory
standard at the affidavit of merit stage might not satisfy the requirements for admission of expert
testimony at trial. Sturgis, 268 Mich. App. at 494, citing Grossman, 470 Mich. at 600. See also
Jones v Botsford Continuing Care Corp, 310 Mich. App. 192, 199-201; 871 NW2d 15 (2015)
(discussing the differing statutory standards governing, respectively, the admission of an expert’s
standard of care testimony at trial and the adequacy of an expert’s affidavit of merit).
Sturgis is therefore distinguishable from the present case in numerous respects. The
dispute in Sturgis concerned whether the proposed experts were qualified at the affidavit of merit
stage to aver with respect to proximate cause, whereas the present case concerns the
admissibility of the proposed expert’s testimony at trial concerning the standard of care. As
explained above, the standard at the affidavit of merit stage is more lenient than the standard for
admissibility of expert testimony at trial. Further, the defendant in Sturgis conceded that the
nurse and the nurse practitioner who signed the affidavits of merit were employed in the same
health profession as the nurses who allegedly committed the malpractice, and this Court had no
occasion to examine the validity of that concession. Most importantly, plaintiff fails to recognize
that it is not the mere fact that Beckmann is a nurse practitioner that precludes her testimony in
this case; it is the fact that she did not devote a majority of her professional time to the practice
or instruction of the health profession of nursing that renders her unqualified. Given that a nurse
practitioner is licensed as a registered nurse but possesses an additional specialty certification as
a nurse practitioner, it is possible that a nurse practitioner could qualify to testify regarding the
standard of care against a registered nurse if the nurse practitioner devoted a majority of her
professional time to instructing or practicing in the health profession of nursing during the
relevant time period. Therefore, plaintiff’s argument that Sturgis controls this case is unavailing.
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Plaintiff’s reliance on McElhaney is likewise misplaced. In McElhaney, 269 Mich. App. at
496, this Court held that the plaintiff’s proposed expert witnesses, who were obstetricians and
gynecologists, were not qualified under MCL 600.2169(1)(b) to testify regarding the standard of
care applicable to a nurse midwife. This Court concluded that “because nurse midwives are
separately licensed professionals who practice nursing with specialty certification in the practice
of nurse midwifery, obstetricians/gynecologists may not testify about their standard of practice
or care.” Id. at 497. We find nothing in McElhaney that addresses the precise issue presented
here, i.e., whether a nurse practitioner who spends the majority of her time practicing or teaching
pursuant to her specialty certification as a nurse practitioner is engaged in the same health
profession as a registered nurse who practices pursuant to her license as a registered nurse.
Further, plaintiff’s citation of a Georgia case, Dempsey v Gwinnett Hosp Sys, Inc, 330 Ga
App 469; 765 SE2d 525 (2014), is unavailing. This Court is not bound by the decisions of the
courts of other states, although such decisions may be considered as persuasive. K & K Constr,
Inc v Dep’t of Environmental Quality, 267 Mich. App. 523, 559 n 38; 705 NW2d 365 (2005). In
Dempsey, a Georgia appellate court determined that a nurse midwife was qualified under
Georgia statutes to testify as an expert against registered nurses because the nurse midwife was a
member of the same profession as the registered nurses. Dempsey, 330 Ga App at 469-474.
Because the present case turns on the interpretation of Michigan statutes rather than the Georgia
statutes at issue in Dempsey, we do not find Dempsey to be persuasive.
We also note that in Jones, 310 Mich. App. at 203-204, this Court stated that the plaintiff’s
counsel could have reasonably believed at the affidavit of merit stage that a registered nurse was
qualified to offer standard of care testimony against a licensed practical nurse, which this Court
noted is a health profession subfield of the practice of nursing. This Court declined to decide,
however, whether a registered nurse could ultimately offer standard of care testimony against a
licensed practical nurse at trial. Id. at 203. Moreover, this Court emphasized that neither a
registered nurse nor a licensed practical nurse has any specialty training. Id. at 205. This Court
explained: “Unlike a nurse midwife or a nurse practitioner, neither [a registered nurse] nor [a
licensed practical nurse] is within a ‘health profession specialty field.’ MCL 333.16105(3).” Id.
at 205 n 5. Hence, the reasoning in Jones is not inconsistent with our analysis.
Plaintiff next argues that the trial court abused its discretion in denying plaintiff’s motion
to add an expert witness. We disagree.
This Court reviews for an abuse of discretion a trial court’s decision whether to allow a
party to add an expert witness. Tisbury v Armstrong, 194 Mich. App. 19, 20; 486 NW2d 51
(1992). An abuse of discretion occurs when the trial court’s decision falls outside the range of
principled outcomes. Woodard, 476 Mich. at 557.
Plaintiff contends that the trial court erred in concluding that plaintiff’s motion to add an
expert witness was untimely. We disagree. Plaintiff did not move to add a new expert until June
10, 2016, which was four days after the trial court had entered its June 6, 2016 order granting
summary disposition in favor of defendants. In an analogous context, this Court has held that a
motion to amend a complaint was untimely where the motion was filed after summary
disposition had already been granted to the defendant. See Wormsbacher v Phillip R Seaver Title
Co, Inc, 284 Mich. App. 1, 9-10; 772 NW2d 827 (2009), citing Amburgey v Sauder, 238 Mich
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App 228, 247-248; 605 NW2d 84 (1999). In this case, plaintiff could have sought to add a new
expert witness much earlier because plaintiff was on notice that there was at least a question
concerning Beckmann’s qualification to testify. At Beckmann’s deposition in August 2015, it
became clear that Beckmann devoted a majority of her professional time in the year preceding
the alleged malpractice to instruction or practice as a nurse practitioner rather than a registered
nurse. In November 2015, defendants moved for summary disposition on the basis of
Beckmann’s lack of qualification to testify; by this point, plaintiff was plainly on notice that
Beckmann’s qualification as an expert witness was in question. Although the trial court initially
ruled in plaintiff’s favor on the summary disposition issue on February 2, 2016, the trial court
granted reconsideration of its decision on March 31, 2016, allowing the parties to file
supplemental briefs on the issue. Hence, plaintiff’s suggestion that she could not have known
that she needed to obtain an expert other than Beckmann until the trial court actually granted
summary disposition on June 6, 2016, lacks merit. In opposing defendant’s motion for summary
disposition, plaintiff chose to rely entirely on Beckmann as an expert rather than seek to add
another expert at that time; this was plaintiff’s choice. The trial court then granted summary
disposition to defendants because Beckmann was unqualified and plaintiff had presented no
other expert to testify concerning the standard of care. The trial court did not err in concluding
that plaintiff’s motion was untimely.
Plaintiff argues that MCR 2.604(A) granted the trial court authority to revise the order
granting summary disposition because a final judgment had not yet been entered (given that
plaintiff still had claims pending against Dr. Hartman and Blue Water). MCR 2.604(A) states:
Except as provided in subrule (B) [not applicable here], an order or other
form of decision adjudicating fewer than all the claims, or the rights and liabilities
of fewer than all the parties, does not terminate the action as to any of the claims
or parties, and the order is subject to revision before entry of final judgment
adjudicating all the claims and the rights and liabilities of all the parties. . . .
Plaintiff’s argument lacks merit. The trial court did not state that it lacked authority to revise the
order granting summary disposition to defendants. Instead, the trial court ruled that plaintiff’s
motion to add a new expert witness was untimely. To the extent that plaintiff fails to address the
basis of the trial court’s decision, plaintiff has abandoned her argument on this issue. See AK
Steel Holding Corp v Dep’t of Treasury, 314 Mich. App. 453, 474 n 10; 887 NW2d 209 (2016).
MCR 2.604(A) does not require a trial court to consider an untimely motion. Also, plaintiff’s
motion sought to add a new expert witness, not to revise an order (although plaintiff presumably
would have sought to set aside the order granting summary disposition if her motion to add a
new expert witness had been granted). Plaintiff’s reliance on MCR 2.604(A) is thus misplaced.
In any event, the trial court’s decision was not premised solely on the untimeliness of the
motion. After concluding that the motion was untimely, the trial court went on to state that even
if the motion was properly before the court, the court would deny the motion given the prejudice
to defendants. The trial court’s decision fell within the range of principled outcomes. MCR
2.401(I)(1) provides that parties must file and serve witness lists no later than the time directed
by the trial court. “The court may order that any witness not listed in accordance with this rule
will be prohibited from testifying at trial except upon good cause shown.” MCR 2.401(I)(2).
The trial court’s scheduling order required plaintiff to file and serve her witness lists by March 6,
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2015. Hence, plaintiff’s June 10, 2016 motion to add a new expert witness was filed more than
one year and three months after the due date for filing and serving witness lists. It was thus
plaintiff’s burden to demonstrate good cause for the late addition of a new expert witness. The
denial of a late motion to add a witness “is proper where the movant fails to provide an adequate
explanation and show that diligent efforts were made to secure the presence of the witness.”
Tisbury, 194 Mich. App. at 20. A court should consider whether prejudice would result from
granting a motion to add an expert witness. Id. at 21; Levinson v Sklar, 181 Mich. App. 693, 698-
699; 449 NW2d 682 (1989).
As the trial court noted, plaintiff did not act diligently in pursing this case. At one point
in the case, the trial court had to enter an order requiring plaintiff’s counsel to specify in writing
whether plaintiff would utilize various listed experts, including Beckmann, and compelling
plaintiff’s counsel to cooperate in scheduling the depositions of expert witnesses. Plaintiff notes
that she did not file a written response opposing defendants’ motion to compel, that Beckmann’s
deposition was scheduled by the parties before the court entered its order on the motion to
compel, and that the order granting the motion to compel resulted from an agreement of the
parties, but it appears this agreement was reached only after the parties’ attorneys came to court
for the hearing on the motion to compel.
Further, as discussed earlier, plaintiff’s motion to add an expert witness was not filed
until after the trial court had already granted summary disposition to defendants, even though
plaintiff’s counsel was on notice much earlier that Beckmann’s qualification as an expert witness
was at the very least in dispute. Even on the date of the hearing on plaintiff’s motion to add a
new expert witness, plaintiff’s counsel still had not retained a new expert witness and had not
provided any notice of the identity of any new expert witness to defendants, despite the fact that
trial was scheduled to occur on September 7, 2016, which was less than three months away at the
time of the motion hearing. The case had been pending for one year and 10 months by the time
plaintiff filed the motion to add a new expert witness. Given the lateness of plaintiff’s motion,
the trial court reasonably concluded that defendants would be prejudiced in preparing for trial if
the motion was granted. Overall, the trial court’s denial of plaintiff’s motion to add a new expert
witness fell within the range of principled outcomes.
Plaintiff also contends that she should be permitted to file an “amended” affidavit of
merit signed by a new expert witness pursuant to MCR 2.112(L)(2)(b), which provides:
[A]ll challenges to an affidavit of merit or affidavit of meritorious defense,
including challenges to the qualifications of the signer, must be made by motion,
filed pursuant to MCR 2.119, 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.
Plaintiff fails to explain how an affidavit of merit signed by a new expert witness, i.e., a different
affiant than Beckmann, who had signed the prior affidavit of merit, would constitute an
“amended” affidavit of merit under MCR 2.112(L)(2)(b). See Jones, 310 Mich. App. at 224
(DONOFRIO, J., concurring in part and dissenting in part) (questioning “whether plaintiff’s current
desire to substitute the prior affidavits of merit with entirely new ones signed by different
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affiants qualifies as amending the prior affidavits.”). In any event, summary disposition was not
granted to defendants on the basis of any deficiencies in the affidavit of merit; instead, summary
disposition was granted because plaintiff failed to present a standard of care expert who was
qualified to testify at trial. Therefore, amendment of the affidavit of merit would not affect or
undermine the rationale or basis on which summary disposition was granted to defendants, nor
would it alter the fact that, for the reasons explained above, the trial court’s denial of plaintiff’s
motion to add a new expert witness to testify at trial fell within the range of principled outcomes.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
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