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Massenberg v. Henry Ford Health System9/25/2003
UNPUBLISHED
Plaintiff commenced this wrongful death action alleging medical malpractice after plaintiff's decedent, Mattie Lu Jones (hereinafter "the decedent"), died during emergency surgery at defendant hospital. Plaintiff 's theory was that defendant's doctors, who regularly treated the decedent, failed to earlier diagnose liver abscesses, which ultimately caused the decedent's death. Following a jury trial, plaintiff was awarded past economic damages of $6,000 and past non-economic damages of $186,000. After the trial court added attorney fees, costs, and interest, plaintiff was awarded a total judgment of $245,048. Defendant now appeals as of right. We affirm.
I.
Defendant argues that the trial court erred in determining that plaintiff 's expert, Dr. Edward Goldberg, was qualified to provide expert testimony under MCL 600.2169. We disagree.
The decedent's treating physician, Dr. Vanessa Robinson, was board-certified in internal medicine and geriatrics. Dr. Goldberg was board-certified in internal medicine and gastroenterology. Defendant argued that Dr. Goldberg's professional qualifications did not satisfy MCL 600.2169(1)(b) because he equally divided his practice between internal medicine and gastroenterology.
MCL 600.2169(1)(b) requires that an expert witness must devote "a majority of his or her professional time" to the active clinical practice of the same specialty as the treating physician. We believe that the trial court properly admitted Dr. Goldberg's testimony under MCL 600.2169. Although Dr. Goldberg practiced both internal medicine and gastroenterology, as the trial court observed, the record discloses that gastroenterology is a subspecialty of internal medicine. Defendant's own witnesses recognized and acknowledged that Dr. Goldberg's certification in gastroenterology reflected greater expertise and more detailed knowledge with respect to the functioning of the liver. Thus, the trial court correctly held that a majority of Dr. Goldberg's practice was devoted to internal medicine even though a portion of that time was devoted to the subspeciality of gastroenterology. We do not believe that MCL 600.2169 should be read so narrowly that an expert with Dr. Goldberg's credentials would be barred from testifying as an expert witness on internal medicine. See Tate v Detroit Receiving Hosp, 249 Mich App 212, 215, 218-221; 642 NW2d 346 (2002).
II.
Next, defendant argues that there was insufficient evidence to support plaintiff 's theory that the decedent's liver abscesses existed on July 15, 1996, and, therefore, Dr. Robinson could not have committed malpractice for failing to diagnose an abscess at that time.
Defendant moved for judgment notwithstanding the verdict (JNOV) or a new trial on this issue. A trial court's decision on a motion for JNOV is reviewed by this Court de novo. Bouverette v Westinghouse Electric Corp, 245 Mich App 391, 395; 628 NW2d 86 (2001). This Court must review the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Orzel v Scott Drug Co , 449 Mich 550, 557-558; 537 NW2d 208 (1995). A motion for JNOV should only be granted where the evidence, when viewed in the light most favorable to the nonmoving party, fails to establish a claim as a matter of law. Id. at 558. If reasonable jurors honestly could have reached different conclusions based upon the evidence, neither the trial court nor this Court may substitute its judgment for that of the jury. Hamann v Ridge Tool Co , 213 Mich App 252, 254; 539 NW2d 753 (1995).
In the alternative, defendant argues that the jury's verdict was against the great weight of the evidence and th
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