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Nippa v. Botsford General Hospital6/21/2002
fidavit of merit, while not necessarily board- certified, meets all the standards in MCL 600.2169(2). The majority's approach here quite clearly fails to give any effect to the standards in MCL 600.2169(2). It is difficult for me to see, therefore, how the majority's interpretation of the statute gives meaning to every clause and sentence. Indeed, under the majority's approach, it appears that MCL 600.2169(2) does not even exist. It is, under this interpretation, MCL 600.2169(2) that is rendered "nugatory," "meaningless," and "surplusage."
If, however, the provisions of MCL 600.2169(2) were to be taken into account, the result would be eminently sensible and the furthest thing from absurd: a plaintiff suing a hospital, and only a hospital, would be required to show that the physician signing the affidavit of merit, while not necessarily board-certified, meets all the standards in MCL 600.2169(2). Such a result would, in my view, comport with the law that the Legislature passed and the Governor signed, preserving in the process the compromises and negotiations that may have preceded the inclusion of these words into the law.
VII. Substituting Policy Preferences
The majority cites Dorris v Detroit Osteopathic Hosp Corp for the proposition that the Supreme Court has expressed its dissatisfaction with "gamesmanship." The gamesmanship to which the majority refers here is that "plaintiffs in medical malpractice actions could routinely avoid the requirements of ยง 2169 by declining to name individual physicians as defendants." I find it interesting that the majority reaches the conclusion that complying with the plain words of the statute that the Legislature actually wrote - and, again, not the one that the majority wishes it had written - is "gamesmanship." The majority's policy preference, clearly, is that a plaintiff should be required to file affidavits of merit signed by board-certified physicians whose specialties match those of the individual physicians who are not parties but for whose alleged negligence the plaintiff seeks to hold a party defendant hospital accountable under a theory of derivative liability. Candidly, that would be my policy preference as well. Such an approach would appear to be logical, fair, and, on the surface at least, workable. The problem, of course, is that this is not the policy preference that the Legislature expressed in the clear and unambiguous words of the statute.
VIII. Amending The Statute
The majority states that "if the Legislature had intended to strictly limit the definition of the word 'party' to parties of record as that word is generally defined in the law, it may have so stated." Here, the majority simply presumes that the Legislature was ignorant of the fact that the word "party" is a legal term of art that has acquired a particular meaning in the law and that the Legislature just inadvertently made use of that word, instead of another, broader (or narrower) one. Acting on this presumption of ignorance, the majority then amends the statute to comport with its policy preferences: that the term "party" should also refer to the individuals who are claimed to have actually committed the alleged medical malpractice. Accordingly, the statute, as the majority amends it, now reads: "However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, OR WHEN VICARIOUS LIABILITY IS ALLEGED AND THE INDIVIDUAL CLAIMED TO HAVE COMMITTED THE ACTUAL ACT OF MEDICAL MALPRACTICE IS A SPECIALIST WHO IS BOARD CERTIFIED, the expert witness must be a specialist who is board certified in that specialty."
As I noted above, such an amended statute would be logical, fair,
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