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Nippa v. Botsford General Hospital6/21/2002
ke the law less "illogical;" and that we do not amend the statute by reading words out of (or, by logical extension, into) the law in order to impose different policy choices than those the Legislature selected. In my view, the majority in this case ignores, or departs from, each of these rather sensible directives.
V. Interpreting Clear And Unambiguous Language
The critical word at issue in this case is "party" in MCL 600.2169(1)(a). The majority states, accurately, that Nippa contends that this word refers only to those litigants actually a party to the record. The majority goes on to say that we should not interpret the word " 'party' narrowly to denote solely a party to the record proceeding." The majority concedes, however, that the word " 'party' is a legal term of art that has acquired a particular meaning in the law." The majority then quotes Black's Law Dictionary (6th ed), p 1112, for the proposition that
arty is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a suit is brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may be affected by the suit, indirectly or consequently, are persons interested but not parties."
In this case, the "party defendant" is undeniably Botsford. Drs. Fan, Blackburn, and Mainster may be interested persons. They may be Botsford's agents. But they are not parties. Therefore, under the clear and unambiguous words of the statute, Nippa did not need to file an affidavit of merit from a board-certified physician (or physicians) with specialties matching the specialties of these three physicians. Further, by definition, Botsford cannot be board-certified in any specialty because it is an institution. The plain language of MCL 600.2169(1)(a) requires an affidavit of merit only "if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified[.]" Nippa, while required to file an affidavit of merit signed by a physician, was therefore not required, when it sued only Botsford, to file such an affidavit signed by a board-certified specialist. To require anything else is to enforce another (as yet unwritten) statute, not the one that the Legislature wrote.
VI. Giving Effect To Every Clause And Sentence
The majority concludes, however, that accepting this plain meaning interpretation of the statute would "effectively repeal" MCL 600.2169, "rendering it nugatory and meaningless." Presumably, the majority concludes that interpreting the word "party" to mean . . . well . . . a party would, in the instance of a hospital who is the sole defendant, eliminate the requirement for an affidavit of merit signed by a board-certified specialist. My first response is that, while this is obviously so, the language of the statute is not absolute but conditional, recognizing that board- certification may not be germane in every instance. It is difficult for me to see how recognizing the conditional requirement of the statute is to "effectively repeal" it, or to render it "nugatory and meaningless."
Secondly, the majority simply ignores the balance of the statute. MCL 600.2169(2) sets out extensive standards by which trial courts are to evaluate the qualifications of an expert witness in an action alleging medical malpractice. Thus, under the statutory scheme that the Legislature actually enacted - and not the one the majority wishes it had enacted - a plaintiff who sues only a hospital does not avoid the requirement of an affidavit of merit. Rather, that plaintiff must show that the physician signing the af
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