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Wise v. Shink6/24/2003
e to be held to the standard of practice as an orthopedic surgeon rather than as podiatrists because they exceeded the scope of their medical licensure. In support of this argument, plaintiff relies on the decision in DeHart v State Bd of Registration in Podiatry, 97 Mich App 307; 293 NW2d 806 (1980) that provided that " he standard of care, whether the action is against an impostor or a true member of the profession, is the same; both are required to conform to the standard of care of a member of the profession." Id. at 315, citing Simpson v Hubert, 35 Mich App 523, 528; 193 NW2d 68 (1971). We disagree. As Shink and Ambroziak point out on appeal, DeHart was decided before the 1986 tort reform legislation was enacted.
"Where the language of the statute is unambiguous, the plain meaning reflects the Legislature's intent and the statute must be applied as written." Dance Corp v City of Madison Heights, 466 Mich 175, 182; 644 NW2d 721 (2002). Judicial construction under such circumstances is not permitted. Id. Here, the plain and unambiguous language of MCL 600.2169(1)(c) requires a general practitioner to testify as an expert witness against a defendant who is a general practitioner. There is nothing in the language of the statute that would make the exception that plaintiff offers. Thus, plaintiff's argument fails.
Finally, plaintiff argues that the trial court erred when it sua sponte dismissed her claims against Laughner and Cohen. Specifically, plaintiff claims that she was not afforded the opportunity to properly file a response to Cohen's motion for summary disposition or present the issue in oral argument. We disagree. The lower court record indicates that the hearing on Cohen's and Laughner's motion for summary disposition was rescheduled to a date three weeks after the initial hearing date and then adjourned for another week upon plaintiff's request. Contrary to her assertion on appeal, plaintiff had filed her response to the motion. Further, MCR 2.119(E)(3) specifically authorizes the trial court, in its discretion, to dispense with or limit oral arguments with regard to motions. American Transmission, Inc v Channel 7 of Detroit, Inc, 239 Mich App 695, 709; 609 NW2d 607 (2000). We review such a decision for an abuse of discretion. Id. In this case, the trial court dismissed the claims against Laughner and Cohen when it determined that the claims were barred by the statute of limitations. On appeal, plaintiff does not dispute the statute of limitations determination. Accordingly, the trial court properly dismissed the claims.
Affirmed.
Michael J. Talbot
David H. Sawyer
Peter D. O'Connell
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