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Giusti v. Mt. Clemens General Hospital12/2/2003
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Q: I don't blame you. So after 1987, at least from a clinical standpoint, after leaving the University of Chicago , you have been half-time in ER medicine, correct, from a clinical standpoint?
A: Yes.
Dr. Baker's testimony was clear and unequivocal -- he did not devote a majority of his professional time to the active clinical practice of emergency medicine for about the ten years preceding the date of the occurrence that gave rise to this action. Although he testified that he averaged 20 to 24 hours a week, he also testified that he considered himself to be half-time clinical because he spent one day a week reviewing cases as an expert witness, "another day a week doing medical education-related things, mostly related to my own CME" and he spent "a significant amount of time working on overseas programs, mostly in Russia and the former Soviet Union." In our opinion, Dr. Baker's own interpretation as to his employment status, i.e., that he did not devote a majority of his professional time to active clinical practice, is the most reliable and must prevail over any nullifying interpretation, including his submission of a later, contrary affidavit. See Dykes v William Beaumont Hosp , 246 Mich App 471, 479-480; 633 NW2d 440 (2001). And, in light of the facts, his interpretation appears accurate. Further, Dr. Baker did not formally instruct students in emergency medicine. Practicing medicine in a teaching hospital does not fulfill the requirements of MCL 600.2169(1)(b)(ii). Accordingly, we do not agree with the dissenting opinion that the trial court abused its discretion in disqualifying Dr. Baker as an expert witness under MCL 600.2169. Considering the facts on which the trial court acted, we cannot say that its decision was without justification or excuse, Ellsworth v Hotel Corp of America , 236 Mich App 185, 188; 600 NW2d 129 (1999), or was "so palpably and grossly violative of fact and logic that it evidences perversity of will, a defiance of judgment, or the exercise of passion or bias," Barrett v Kirtland Community College , 245 Mich App 306, 325; 628 NW2d 63 (2001).
Next, plaintiff argues that the trial court abused its discretion in prohibiting Dr. Mauskop from testifying on the issue of causation. We disagree. After the trial court noted that plaintiff's only remaining claims were against MCGH and were related to emergency room visits, it held that Dr. Mauskop, a neurologist, was not qualified under MCL 600.2169 to offer expert testimony regarding treatment rendered to plaintiff by emergency room physicians. In his appeal brief, plaintiff does not address this finding, but merely argues that Dr. Mauskop was qualified to testify as to the issue of causation. However, even if Dr. Mauskop was qualified to testify as to the issue of causation, he was not qualified to testify as to the standard of care and breach of the standard of care related to the treatment rendered by emergency room physicians during the emergency room visits. Therefore, this is not a ground on which to reverse the trial court's grant of summary dismissal.
Finally, plaintiff argues that he should be able to elicit the necessary causation testimony from the former defendants, Drs. Larkin and Kaner, to establish his prima facie case. We disagree. As noted by the trial court, the record did not establish that either physician was qualified under MCL 600.2169 to render such expert testimony. Contrary to plaintiff's argument on appeal that "the qualifications of these doctors to testify as experts cannot be seriously disputed," both physicians could actually devote only half of their professional time to the practice of neurology and emergency room medicine. Accordingly, plaintiff failed
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