Decker v. Flood

638 N.W.2d 163, 248 Mich. App. 75
CourtMichigan Court of Appeals
DecidedJanuary 10, 2002
DocketDocket 224482
StatusPublished
Cited by27 cases

This text of 638 N.W.2d 163 (Decker v. Flood) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Decker v. Flood, 638 N.W.2d 163, 248 Mich. App. 75 (Mich. Ct. App. 2002).

Opinions

Per Curiam.

Plaintiffs appeal as of right the trial court’s decision to grant defendants’ motion for summary disposition and to dismiss without prejudice plaintiffs’ complaint alleging dental malpractice. We affirm.

On January 13, 1997, defendant Kevin Flood1 examined plaintiff Erik Decker,2 who was complaining of pain, determined that plaintiff needed a [78]*78root 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 plaintiffs’ complaint, after defendant administered three successive injections of Novocaine, plaintiff became cold, began to shake, and eventually stopped breathing. Plaintiffs further alleged that defendant administered cardiopulmonary resuscitation. Plaintiff was taken by ambulance to a hospital and released the following day. Plaintiffs also claimed that another dentist referred plaintiff to an endodontist3 who repaired and completed the root canal begun by defendant.

Plaintiffs filed their complaint on June 18, 1999. Attached to the complaint was an affidavit of merit signed by Michael J. Gallagher, D.D.S. According to the affidavit, Dr. Gallagher is a “doctor of dental surgery” and a member of the American Association of Endodontists. 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 that he, Dr. Gallagher, “had to perform a root canal retreatment” on plaintiff’s teeth to address plaintiff’s pain.

[79]*79On September 11, 1999, defendants answered plaintiffs’ complaint. On September 28, 1999, defendants filed a motion for summary disposition under MCR 2.116(C)(8) and (C)(10). In their motion, defendants argued that defendant Dr. Flood was a dentist in general practice in January 1997 and MCL 600.2912d required plaintiffs to file with their complaint an affidavit of merit signed by a health professional who plaintiffs’ attorney reasonably believed met the requirements of MCL 600.2169. According to defendants, Dr. Gallagher specialized in endodontics and, therefore, plaintiffs failed to file an affidavit of merit that met the requirements of MCL 600.2912d and MCL 600.2169, and plaintiffs’ complaint should be dismissed.

In response to defendants’ motion, plaintiffs argued that both defendant and Dr. Gallagher are general practitioners who perform root canals, with the only 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 concerning 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 concerning the standard of practice required for a general practitioner. The court further noted that the Supreme [80]*80Court affirmed the Legislature’s right to set standards for experts in medical malpractice cases and that, regardless of whether the statute creates an unfair standard, the court was unable to “square the wording of the statute to the facts here.” The court granted defendants’ motion and dismissed plaintiffs’ complaint without prejudice, noting that there may be a statute of limitations problem.

On appeal, plaintiffs argue that the trial court erred in finding that their affidavit of merit did not comply with MCL 600.2912d and in granting defendants’ motion for summary disposition. We review de novo a trial court’s decision on a motion for summary disposition. Holmes v Michigan Capital Medical Center, 242 Mich App 703, 706; 620 NW2d 319 (2000).

In this case, defendants moved for summary disposition under MCR 2.116(C)(8) and (C)(10). It is not apparent from the trial court’s statements on the record or the order entered by the court whether it granted the motion under subsection C(8) or subsection C(10). However, because it is clear that the court relied on evidence outside the pleadings in order to make its determination that Dr. Gallagher did not qualify as an expert under MCL 600.2169, we review this motion under the standard for MCR 2.116(C)(10).4 MCR 2.116(G)(5); Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999).

[81]*81A motion for summary disposition under MCR 2.116(C)(10) tests the factual support of a claim. Smith, supra at 454. The reviewing court considers affidavits, pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties in the fight most favorable to the non-moving party. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996). The court should grant the motion only if the affidavits or other documentary evidence show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

The issue before us in this case involves the requirements for the expert who signs the affidavit of merit that a medical malpractice plaintiff must file with the complaint pursuant to MCL 600.2912d. The statute 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 [MCL 600.2169].” MCL 600.2912d(l). MCL 600.2169(1) states:

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:
* * *
(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 [82]*82a 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 determination of this issue requires us to interpret the language of two statutes.

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Bluebook (online)
638 N.W.2d 163, 248 Mich. App. 75, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decker-v-flood-michctapp-2002.