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Nippa v. Botsford General Hospital6/21/2002
FOR PUBLICATION
In this medical malpractice action, plaintiff appeals as of right from the trial court's June 6, 2000, order of involuntary dismissal. We affirm.
Plaintiff initially filed the present action in Oakland Circuit Court on July 12, 1999, against "Botsford General Hospital Group" alleging that defendant was negligent in its treatment of plaintiff's decedent, Robert Nippa, following a colonoscopy in April 1998. As required by MCL 600.2912d(1), plaintiff filed with the complaint the affidavit of merit of Arnold Markowitz, M.D. On August 17, 1999, plaintiff filed a first amended complaint against "Botsford General Hospital" that included the same allegations as the initial complaint. On August 26, 1999, defendant filed a motion for more definite statement, arguing that the first amended complaint was "vague, non-specific," and did not give defendant reasonable indication of the nature of the case it was called on to defend. Following a hearing, the trial court granted defendant's motion in an order entered October 7, 1999.
As a result of the trial court's order, plaintiff filed the second amended complaint on October 13, 1999. In the second amended complaint plaintiff alleged that defendant was liable for Dr. Wiley Fan, Dr. Gerald Blackburn and Dr. Harris Mainster's negligent treatment of the decedent. Defendant moved for involuntary dismissal of the second amended complaint on April 5, 2000, pursuant to MCL 2.112(L), arguing that dismissal was warranted on the basis of plaintiff's deficient affidavit of merit. Specifically, defendant contended that the affidavit of merit filed with the original complaint did not comply with MCL 600.2169(1) because Dr. Markowitz was not board-certified in either general surgery or infectious disease. According to the record, both Dr. Fan and Dr. Blackburn are board-certified in infectious disease, and Dr. Mainster is board-certified in general surgery. Although Dr. Markowitz specializes in infectious disease, he is not board-certified in this area of medicine.
In response to defendant's motion, plaintiff argued that pursuant to the plain language of MCL 600.2169(1)(a), Dr. Markowitz was competent to testify against defendant although he was not board-certified in infectious disease because Dr. Fan, Dr. Blackburn and Dr. Mainster were not "parties" to the action as set forth in the statute. In other words, plaintiff maintained that because the hospital, the only named defendant to the action, was not board-certified in infectious disease, plaintiff was not required to produce an expert witness with like qualifications. The court conducted a hearing on defendant's motion on May 17, 2000. At the conclusion of the hearing the trial court granted defendant's motion without articulating in detail its reasoning. Plaintiff now appeals as of right.
We review for an abuse of discretion a trial court's decision to dismiss an action. Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 506; 536 NW2d 280 (1995); Zantop Int'l Airlines, Inc v Eastern Airlines, 200 Mich App 344, 359; 503 NW2d 915 (1993). However, the present appeal also requires us to interpret a statutory provision, a question we review de novo. Donajkowski v Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574 (1999).
The rules of statutory construction are well established. The foremost rule, and [this Court's] primary task in construing a statute, is to discern and give effect to the intent of the Legislature. Murphy v Michigan Bell Telephone Co, 447 Mich 93, 98; 523 NW2d 310 (1994). See also Nation v W D E Electric Co, 454 Mich 489, 494; 563 NW2d 233 (1997). This task begins by examining the language of the statute itself. The words of a statut
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