Nippa v. Botsford General Hospital6/21/2002
50, 560; 595 NW2d 176 (1999). "In its broadest meaning the word 'party' includes one concerned with, conducting, or taking part in any matter or proceeding, whether he is named or participates as a formal party or not." Fong Sik Leung v Dulles, 226 F2d 74, 81 (CA 9, 1955) (Bolt, D.J., concurring).
However, we would be remiss if we did not acknowledge, as plaintiff points out in her brief on appeal, that the word "party" is a legal term of art that has acquired a particular meaning in the law. Specifically, Black's Law Dictionary (6th ed), p 1122, defines party in the following manner:
A person concerned or having or taking part in any affair, matter, transaction, or proceeding, considered individually. A party to an action is a person whose name is designated on record as plaintiff or defendant. Term, in general, means one having right to control proceedings, to make defense, to adduce and cross-examine witnesses, and to appeal from judgment.
Party is a technical word having a precise meaning in legal parlance; it refers to those by or against whom a legal 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. [Emphasis supplied; citations and internal quotation marks omitted.] See Dearborn Heights School Dist No 7 v Wayne Co MEA/NEA, 233 Mich App 120, 127; 592 NW2d 408 (1998) ("A party is one who was directly interested in the subject matter, and who had a right to defend in, or control, the proceedings, and who had a right to appeal from the judgment"); In re Lafayette Towers, 200 Mich App 269, 272-275; 503 NW2d 740 (1993) (construing "party" in §8408 of the RJA to include named party's attorney).
In spite of the unique meaning the word "party" has acquired in the law, we do not agree with plaintiff that by referring to "party," the Legislature evinced its intention that the requirement that an expert witness share the same board certification as one he intends to testify against extend only to named parties to the record. In the instant case, a careful review of the second amended complaint reflects that plaintiff is alleging liability on the part of defendant under a theory of vicarious liability. As our Supreme Court observed in Theophelis v Lansing General Hosp, 430 Mich 473, 483; 424 NW2d 478 (1988) (Griffin, J.), " icarious liability is indirect responsibility imposed by operation of law." Further, a master may not be held liable under a vicarious liability theory where the servant is not liable. Rogers v J B Hunt Transport, Inc, 244 Mich App 600, 608; 624 NW2d 532, lv gtd 465 Mich 902 (2001). This is because the principal has not committed a tortious act, and is therefore not a "tortfeasor." Theophelis, supra at 483.
In our view, an acceptance of plaintiff's interpretation of the statute would "effectively repeal" § 2169, rendering it nugatory and meaningless, an interpretation that this Court must avoid. Scarsella v Pollak, 461 Mich 547, 550; 607 NW2d 711 (2000). Similarly, if we were to accept plaintiff's argument, plaintiffs in medical malpractice actions could routinely avoid the requirements of § 2169 by declining to name individual physicians as defendants. In a different context, our Supreme Court has expressed its dissatisfaction with such gamesmanship, specifically where parties draft pleadings to avoid the procedural medical malpractice requirements. Dorris v Detroit Osteopathic Hosp, 460 Mich 26, 43-47; 594 NW2d 455 (1999); see also Stover v Garfield, 247 Mich App 456, 467-469; 637 NW2d 221 (2001) (O'Connell J., dissenting
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