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Nippa v. Botsford General Hospital6/21/2002
imitations apply to discovery conducted by opposing counsel to determine whether or not an expert witness is qualified:
(a) Tax returns of the expert witness are not discoverable.
(b) Family members of the expert witness shall not be deposed concerning the amount of time the expert witness spends engaged in the practice of his or her health profession.
(c) A personal diary or calendar belonging to the expert witness is not discoverable. As used in this subdivision, "personal diary or calendar" means a diary or calendar that does not include listings or records of professional activities. [Emphasis supplied.]
On appeal, plaintiff raises a novel, yet ultimately unsuccessful, legal argument concerning the proper interpretation of the word "party" in § 2169. Put rather simply, the thrust of plaintiff's argument is that the word "party" refers only to those litigants actually a party to the record. Therefore, according to plaintiff, because the board-certified physicians that treated plaintiff's decedent are not named in the action, plaintiff, by virtue of her artful drafting of the second amended complaint, is absolved from complying with the requirements of § 2169. On the other hand, defendant asserts that plaintiff's argument is merely an attempt to circumvent MCL 600.2169. Defendant further contends that to interpret the statute in the manner plaintiff suggests would render an absurd result. Moreover, defendant asserts that the purpose underlying the enactment of § 2169, to ensure that expert witnesses testifying against physicians who are board-certified in a particular specialty also are board-certified, would be thwarted if this Court were to accept plaintiff's argument.
In Tate v Detroit Receiving Hosp, 249 Mich App 212, 218-219; 642 NW2d 346 (2002), this Court, quoting our Supreme Court's decision in McDougall v Schanz, 461 Mich 15, 25; 597 NW2d 148 (1999) (McDougall II), recently articulated the purpose underlying the Legislature's enactment of § 2169.
The Legislature enacted § 2169 to "make sure that expert witnesses actually practice or teach medicine. In other words, to make sure that experts will have firsthand practical expertise in the subject matter about which they are testifying. In particular, with the malpractice crisis facing high-risk specialists, such as neurosurgeons, orthopedic surgeons and ob/gyns, this reform is necessary to insure that in malpractice suits against specialists the expert witnesses actually practice in the same specialty. This will protect the integrity of our judicial system by requiring real experts instead of 'hired guns.'" [Quoting McDougall v Eliuk, 218 Mich App 501, 509; 554 NW2d 56 (1996) (McDougall I) (Taylor, P.J., dissenting), rev'd 461 Mich 15 (1999).]
The Tate Court also observed that by its plain terms, "§ 2169 requires an expert witness to possess the same specialty as that engaged in by the defendant physician during the course of the alleged malpractice." Tate, supra at 220. See also Vandenburg v Vandenburg, 231 Mich App 497, 502; 586 NW2d 570 (1998) (observing that § 2912d, requiring filing of affidavit of merit with complaint to commence medical malpractice suit, was designed to "deter frivolous medical malpractice claims.").
MCL 600.2169 does not define the word "party." However, we are not persuaded by plaintiff's argument that we should interpret the word "party" narrowly to denote solely a party to the record proceeding. Indeed, it is well settled that we are to liberally and broadly construe the provisions of the RJA to effectuate its remedial purposes. MCL 600.102; H J Tucker & Associates, Inc v Allied Chucker & Engineering Co, 234 Mich App 5
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