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Greathouse v. Rhodes8/18/2000
FOR PUBLICATION
9:00 a.m.
Updated Copy October 13, 2000
In this medical malpractice action, plaintiff appeals as of right from the jury's verdict of no cause of action. Plaintiff challenges the trial court's rulings (1) denying her motion to strike defendant Dr. Charles Rhodes' expert witnesses on the ground that they were not qualified under MCL 600.2169(1)(a); MSA 27A.2169(1)(a) to testify regarding the standard of care, and (2) denying her request to use learned treatises to question her expert witnesses on direct-examination in order to establish that their opinions were supported by "peer review publications" and met other requirements of MCL 600.2955(1); MSA 27A.2955(1). We affirm.
I.
In December 1994, decedent Robert Greathouse began to experience episodes of severe chest pain. Decedent sought treatment from his regular physician, Dr. Charles Rhodes, whom decedent had seen regularly for the last five years. Dr. Rhodes prescribed medication and referred decedent for a cardiac stress test. Another doctor conducted the stress test and, after reviewing the results and decedent's symptoms, instructed decedent to immediately consult a cardiologist. Dr. Rhodes referred decedent to cardiologist Dr. John Duge, who prescribed a different type of medication and scheduled an angiogram. Decedent, however, suffered a fatal heart attack six days before the scheduled procedure.
On May 13, 1996, plaintiff filed an amended complaint against Drs. Rhodes and Duge, alleging that their failure to properly diagnose and treat decedent's unstable angina caused his death. In compliance with MCL 600.2912d(1); MSA 27A.2912(4)(1), plaintiff filed with the complaint an affidavit of merit signed by Dr. Wendy Marshall, which specified that she was a board-certified surgeon. In response, Dr. Rhodes filed an affidavit of meritorious defense signed by Dr. Clinton Wilson in compliance with MCL 600.2912e(1); MSA 27A.2912(5)(1). The affidavit of meritorious defense did not indicate Dr. Wilson's practice area or background.
Plaintiff deposed Dr. Rhodes on July 9, 1997. Sometime before trial, Dr. Rhodes named three standard of care witnesses to testify on his behalf. Two of the proposed witnesses were board-certified family practitioners and the third specialized in internal medicine. On July 6, 1998, less than a month before trial, plaintiff filed a motion to strike Dr. Rhodes' experts pursuant to MCL 600.2169(1)(a); MSA 27A.2169(1)(a) on the ground that they were not qualified to testify regarding the appropriate standard of care. Plaintiff argued that because Dr. Rhodes was a board-certified general surgeon, subsection 2169(1)(a) required that his expert witnesses be board-certified surgeons as well. While conceding that this Court held the predecessor statute to ยง 2169 unconstitutional in McDougall v Eliuk, 218 Mich App 501; 554 NW2d 56 (1996), plaintiff stated that she wanted to preserve the issue in the expectation that the Supreme Court would reverse McDougall. Defendant argued in response that even if subsection 2169(1)(a) were deemed constitutional, it did not apply to him or his expert witnesses because he did not actually practice as a general surgeon and did not treat decedent in that capacity. Following a hearing held on August 3, 1998, the day before trial, the trial court accepted plaintiff's interpretation of subsection 2169(1)(a) and granted the motion to strike.
On August 4, 1998, the first day of trial, the trial court heard arguments on Dr. Rhodes' motion for reconsideration and his alternative motion to adjourn trial. Stating that it did not believe that its interpretation of subsection 2169(1)(a) constituted palpable e
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