4.4Medical Malpractice—Expert Testimony¹

A.Requirements

“In a medical malpractice action, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard of care by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury.” Stokes v Swofford, ___ Mich ___, ___ (2024) (quotation marks and citation omitted). Generally, a plaintiff in a medical malpractice action “must produce expert testimony to support their position as to the standard of care in their case and that the standard was breached.” Danhoff v Fahim, ___ Mich ___, ___ (2024). “The proponent of expert testimony in a medical malpractice case must satisfy the court that the expert is qualified under MRE 702, MCL 600.2955, and MCL 600.2169.” Danhoff, ___ Mich at ___ (quotation marks and citation omitted).

MRE 702 “guides the admissibility of the testimony of medical experts in medical malpractice litigation who aver in affidavits of merit as to the applicable medical standard of care and whether that standard of care was breached.” Danhoff, ___ Mich at ___ (noting that “it is generally not sufficient to simply point to an expert’s experience and background to argue that the expert’s opinion is reliable and, therefore, admissible”). MRE 702 provides:

“A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” MRE 702.

“Further guidance as to the reliability of medical expert testimony comes from MCL 600.2955[, which] expresses that the keys to admissibility are relevance and reliability.” Danhoff, ___ Mich at ___. “MCL 600.2955 presents a nonexhaustive list of seven factors that a trial court shall consider when it determines whether an expert’s opinions are reliable.” Danhoff, ___ Mich at ___. Specifically, the seven factors are:

“(a) Whether the opinion and its basis have been subjected to scientific testing and replication.

(b) Whether the opinion and its basis have been subjected to peer review publication.

(c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.

(d) The known or potential error rate of the opinion and its basis.

(e) The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, “relevant expert community” means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.

(f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.

(g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation.” MCL 600.2955(1).

“Neither MRE 702 nor MCL 600.2955 requires a trial court to exclude the testimony of a plaintiff’s expert on the basis of the plaintiff’s failure to support their expert’s claims with published literature.” Danhoff, ___ Mich at ___. “Expert testimony is inadmissible when it does not meet the reliability requirements of MRE 702, MCL 600.2955, and MCL 600.2169—not because the expert’s testimony was not or could not be supported by peer-reviewed literature.”Danhoff, ___ Mich at ___.

“MCL 600.2912d(1) mandates that the plaintiff in a medical malpractice action ‘file with the complaint an affidavit of merit signed by a health professional who the plaintiff’s attorney reasonably believes meets the requirements for an expert witness under MCL 600.2169.’” Stokes v Swofford, ___ Mich ___, ___ (2024). MCL 600.2169 sets forth the qualifications necessary for an expert witness to testify regarding the standard of care in medical malpractice cases. “The ‘matching’ required by MCL 600.2169(1) is limited to general board specialties and does not require precise matching of subspecialties.” Stokes, ___ Mich at ___ (“emphasiz[ing] that a trial court must ensure that experts with matching specialties under MCL 600.2169(1) meet other criteria set forth in MCL 600.2169(2) and that MCL 600.2169(3) provides trial courts with broad discretion in assessing experts”).

“Admission of expert testimony . . . does not depend on an expert’s being exactly as knowledgeable as a defendant in a medical malpractice action.” Albro v Drayer, 303 Mich App 758, 763 (2014) (holding that the defendant’s experts satisfied MCL 600.2169(1)). There is “no rule, statute, or binding authority requiring identical experience and expertise between a party and an expert[.]” Id. In Albro, the plaintiff argued that the defendant’s experts were “unqualified to render an opinion regarding defendant’s compliance with the standard of care because they ha[d] little or no, or at least no recent, personal experience actually performing the specific surgical procedure defendant performed.” Id. at 761-762. Although “none of defendant’s experts were as familiar with the [specific] procedure as was defendant, . . . all of them were familiar with the [specific] procedure.” Id. at 762-763. Accordingly, “[t]he trial court did not abuse its discretion by finding that defendant’s experts were, at a minimum, sufficiently knowledgeable, trained, or educated to form an expert opinion under MRE 702 . . . [and] none of the considerations under MCL 600.2169(2) demand[ed] that the experts be excluded.” Albro, 303 Mich App at 763.

 MCL 600.2169 “does not impermissibly infringe on [the Supreme Court’s] constitutional rule-making authority over ‘practice and procedure.’” McDougall v Schanz, 461 Mich 15, 37 (1999).

“A party must move to strike an expert within a reasonable time after learning the expert’s [sic: identity] and basic qualifications. The failure to timely do so results in forfeiture of the issue.” Cox v Flint Bd of Hosp Mgrs (On Remand), 243 Mich App 72, 80 (2000), rev’d on other grounds 467 Mich 1 (2002) (citation omitted).²

B.Standard of Care

1.Generally

“Generally, expert testimony is required in a malpractice case in order to establish the applicable standard of care and to demonstrate that the professional breached that standard.” Elher v Misra, 499 Mich 11, 21 (2016) (quotation marks and citations omitted). “The proponent of the evidence has the burden of establishing its relevance and admissibility.” Id. at 22. “The standard of care is controlled by how other physicians in a field of medicine would act when providing the same treatment.” Stokes v Swofford, ___ Mich ___, ___ (2024). “The standard of care for general practitioners is subject to the locality rule, which holds that the relevant standard of care is that which applies ‘in the community in which the defendant practices or in a similar community[.]’” Id. at ___ n 1, quoting MCL 600.2912a(1)(a). “On the other hand, physician specialists and experts are held to a fieldwide standard of care.” Stokes, ___ Mich at ___ n 1 (explaining that specialists are measured by a national standard because the public’s reliance “upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices”) (cleaned up). Put simply, general practitioners are held to a local or similar community standard of care; specialists are held to a nationwide standard of care. Cudnik v William Beaumont Hosp, 207 Mich App 378, 383 (1994).

Nurses are not engaged in the practice of medicine and are, therefore, not held to the same standard of care as general practitioners or specialists. Decker v Rochowiak, 287 Mich App 666, 686 (2010). “Rather, the common-law standard of care applies to malpractice actions against nurses. The applicable standard of care is the skill and care ordinarily possessed and exercised by practitioners of the profession in the same or similar localities. The standard of care required of a nurse must be established by expert testimony.” Id. (quotation marks, alteration, and citations omitted). In Decker, the defendant appealed because the “plaintiff’s expert reviewed the case ‘in light of a “national” standard of care’” as opposed to a local one. Id. at 685. The Court of Appeals concluded that, although the expert stated she was applying a national standard of care to her testimony, “the actual substance of [her] lengthy testimony was that the procedures at issue [in Decker were] so commonplace that the same standard of care applied locally and nationally. . . . Thus, plaintiff’s expert applied the proper standard of care, which happened to be the same locally as well as nationally.” Id. at 686-687.

MCL 600.2169(1)(b) “states that the expert must have spent the majority of his or her time the year preceding the alleged malpractice practicing or teaching the specialty the defendant physician was practicing at the time of the alleged malpractice.” Kiefer v Markley, 283 Mich App 555, 559 (2009). Accordingly, the Court concluded that the proposed expert physician must “spend greater than 50 percent of his or her professional time practicing the relevant specialty the year before the alleged malpractice.” Id.

The requirement in MCL 600.2169(1)(b)(i) that the expert be engaged in “active clinical practice” does not “require that the professional physically interact with patients. Rather, the word ‘active’ must be understood to mean that, as part of his or her normal professional practice at the relevant time, the professional was involved—directly or indirectly—in the care of patients in a clinical setting.” Gay v Select Specialty Hosp, 295 Mich App 284, 297 (2012). Likewise, “[t]he Legislature’s statement [in MCL 600.2169(1)(b)(ii)] that the professional may meet the time requirement by devoting the majority of his or her time to the instruction of students [does not mean] that the professional must actually spend a majority of his or her time instructing students.” Gay, 295 Mich App at 300. “It is commonly understood that a person who teaches—and especially with regard to persons who teach a profession—must spend significant time preparing for class, maintaining familiarity with new and evolving professional techniques, and participating in meetings designed to further the educational process.” Id.

“Neither MRE 702 nor MCL 600.2955 requires a trial court to exclude the testimony of a plaintiff’s expert on the basis of the plaintiff’s failure to support their expert’s claims with published literature.” Danhoff v Fahim, ___ Mich ___, ___ (2024) (“Although published literature may be an important factor in determining reliability, it is not a dispositive factor . . . .”). In Danhoff, the plaintiff’s expert “opined that because a bowel perforation like plaintiff experienced is so rare and so likely to have been caused by a medical instrument in an area it should not have been that it constitutes a breach of the standard of care.” Id. at ___. “The trial court determined that [plaintiff’s expert’s] opinion was unreliable almost exclusively because he did not cite supportive literature without considering whether (1) [plaintiff’s expert] could have produced such supportive literature, (2) defendant produced any literature or other evidence to contradict [plaintiff’s expert’s] opinion, and (3) [plaintiff’s expert’s] opinion was otherwise sufficiently reliable under the factors provided by statute and MRE 702.” Danhoff, ___ Mich at ___.

The Danhoff Court held that “scientific literature is not always required to support an expert’s standard-of-care opinion, but that scientific literature is one of the factors that a trial court should consider when determining whether the opinion is reliable.” Danhoff, ___ Mich at ___ (stating that “peer-reviewed, published literature is not always a necessary or sufficient method of meeting the requirements of MRE 702, thus establishing reliability”) (quotation marks and citation omitted). “[A]n expert in a medical malpractice lawsuit [may be able to] reliably support their opinion on the standard of care [even] if the adverse event is so rare that published, peer-reviewed medical literature on the subject may not exist.” Id. at ___. “[E]ach case will present unique circumstances for a trial court to determine whether the expert’s opinion is reliable.” Id. at ___. “In some cases, a lack of supportive literature may be fatal to a plaintiff’s expert’s reliability.” Id. at ___. “In others, a plaintiff’s expert may demonstrate reliability without supportive literature, especially where a complication is rare and there is a dearth of supportive literature available to support the opinion.” Id. at ___ (holding that “the guidepost for admissibility is reliability, and trial courts must consider MRE 702 as well as the statutory reliability factors presented in MCL 600.2955 when determining if an expert is reliable”).

“Treating a lack of supportive medical literature as dispositive that the expert’s opinions are unreliable and, therefore, inadmissible, creates a conundrum.” Danhoff, ___ Mich at ___. “If the failure to produce medical literature means that a plaintiff’s otherwise reliable expert opinions are inadmissible, patients who experience complications so rare that they are not studied by the academic community or discussed in peer-reviewed publications would not be able to offer admissible expert testimony when seeking legal recourse for their injuries.” Id. at ___. “The avoidance of such a result is why MCL 600.2955 has several factors and does not merely specify that reliability is a product of peer-reviewed medical literature.” Danhoff, ___ Mich at ___ (“It is also why we have consistently noted that peer-reviewed medical literature is not always necessary or sufficient to meet reliability requirements.”) (quotation marks and citations omitted). Ultimately, in Danhoff, the Michigan Supreme Court held that “[t]he lower courts erred by concluding that [plaintiff’s expert’s] opinions were unreliable because they were unsupported by medical literature.” Id. at ___ (“The trial court abused its discretion by inadequately assessing [plaintiff’s expert’s] reliability as a standard-of-care expert without appropriately analyzing MRE 702 or the statutory reliability factors of MCL 600.2955.”).

The number of medical professionals “who use any particular procedure is not determinative of the standard of care.” Albro v Drayer, 303 Mich App 758, 765 (2014) (finding an expert’s testimony that a “third” of foot and ankle doctors use a particular procedure inappropriate because it lacked foundation in the record and was not determinative of the standard of care).

Timing of establishing the applicable standard of care. Although a trial court errs by waiting to establish the applicable standard of care until after the proofs have closed, such an error does not always require reversal. Jilek v Stockson, 490 Mich 961, 961-962 (2011). In Jilek, the trial court allowed the parties to argue at trial which standard of care applied, ultimately deciding the issue in the defendants’ favor after the close of proofs. Id. at 961. However, because the trial court had been misled by the plaintiff’s own arguments, and it did not preclude the plaintiff from presenting standard-of-care testimony for both specialties, upholding the jury’s verdict in favor of the defendants was not “‘inconsistent with substantial justice,’ [under] MCR 2.613(A).” Jilek, 490 Mich at 962.

Nurse midwives. Obstetricians/gynecologists are not qualified to testify regarding the standard of care applicable to nurse midwives because they do not practice in “the same health profession” as a nurse midwife. McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 496-497 (2006). The Court stated:

“Though it may appear reasonable that a physician with substantial educational and professional credentials should be able to testify about the standard of care of a nurse who works in a closely related field, we are constrained by the plain words of the statute [(MCL 600.2169(1)(b)] that the expert witness must practice in the ‘same health profession.’ Consequently, we conclude that because nurse midwives are separately licensed professionals who practice nursing with specialty certification in the practice of nurse midwifery, obstetricians/gynecologists may not testify about their standard of practice or care.” McElhaney, 269 Mich App at 497.

Physician’s assistant. Where a party seeks to admit expert testimony regarding the appropriate standard of care for a physician assistant, MCL 600.2169(1)(b) applies because MCL 600.2169(1)(a) and MCL 600.2169(1)(c) apply only to physicians, and MCL 600.2169(1)(b) applies both to physicians and other health professionals, which includes physician assistants. Wolford v Duncan, 279 Mich App 631, 635-637 (2008). Similarly, MCL 600.2169(1)(b) applies to expert witnesses testifying as to the standard of care for nurses. Gay, 295 Mich App at 294.

2.Specialists

A specialist is “a physician whose practice is limited to a particular branch of medicine or surgery, especially one who, by virtue of advanced training, is certified by a specialty board as being qualified to so limit his practice.” Stokes v Swofford, ___ Mich ___, ___ (2024) (quotation marks and citation omitted) (noting that “a physician can be a specialist who is not board certified—and that a specialist is somebody who can potentially become board certified”).

MCL 600.2169(1) requires a proposed expert to meet certain criteria when a defendant is a specialist. The statute states, in relevant part:

“(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:

(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.

(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:

(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.

(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.”

“MCL 600.2169(1)(a) says that if the defendant physician is a specialist, then the expert must practice or teach in the ‘same specialty.’” Stokes v Swofford, ___ Mich ___, ___ (2024). “Similarly, the statute states that if the defendant physician ‘is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.’” Id. at ___, quoting MCL 600.2169(1)(a). “[T]he words ‘specialist’ and ‘specialties’ as used in MCL 600.2169(1) are defined as the specialties recognized by the American Board of Medical Specialties (ABMS), the American Osteopathic Association (AOA), the American Board of Physician Specialties (ABPS), or other similar nationally recognized umbrella-based physician certifying entities.” Stokes, ___ Mich at ___. “[T]he ‘matching’ requirement under MCL 600.2169 follows the listed general board certifications, which are the baseline ‘specialties’ recognized by such entities for certification purposes.” Stokes, ___ Mich at ___.

“The statute does not require matching of subspecialties.” Id. at ___ (“A medical subspecialty is a concentrated area of knowledge and skills existing ‘within a specialty’ requiring additional training and education.”). “Nowhere in the language of MCL 600.2169 is there a reference to ‘subspecialties.’” Stokes, ___ Mich at ___, overruling in part Woodard v Custer, 476 Mich 545 (2006).³ According to the Stokes Court, “Woodard incorrectly conflated the terms ‘specialty’ and ‘subspecialty’ in a manner that is inconsistent with the plain language of the statute, and it essentially negated MCL 600.2169(2) and (3), which provide significant discretion to trial courts to exclude experts even when such experts qualify under [MCL 600.2169(2)].” Stokes, ___ Mich at ___.

Level of certification/matching of credentials. “Board certified” is defined as a “certification from an official group of persons who direct or supervise the practice of medicine that provides evidence of one’s medical qualifications.” Stokes, ___ Mich at ___ n 14 (citation omitted). However, a “‘board certification’ that requires prerequisites set forth by a more general umbrella certification applies in the same way to both a ‘specialty’ and ‘subspecialty.’” Id. (“recogniz[ing] that a subspecialty is different from a specialty”). “While both may require ‘board certifications’ from a professional organization, a certification that requires as a prerequisite the possession of another more general board certification (a ‘specialty’) from an umbrella-certifying entity before seeking further certification is a subspecialty for purposes of MCL 600.2169.” Stokes, ___ Mich at ___ n 14. “The “matching” required by MCL 600.2169(1) is limited to general board specialties and does not require precise matching of subspecialties.” Stokes, ___ Mich at ___.

Timing of board certification. “[A] proposed expert’s board-certification qualification [under MCL 600.2169(1)(a)] is based on the expert’s board-certification status at the time of the alleged malpractice rather than at the time of the testimony.” Rock v Crocker, 499 Mich 247, 251 (2016). “On the basis of the plain language of [MCL 600.2169] and contextual clues from the surrounding provisions, . . . both the specialty and board-certification requirements [of MCL 600.2169(1)(a)] apply at the time of the occurrence that is the basis for the claim or action.” Rock, 499 Mich at 261-262 (additionally noting, however, that “[w]ith respect to the licensure requirement[ of MCL 600.2169(1)], the parties [did] not dispute that the expert must be licensed at the time of the testimony”) (emphasis added).

Internal medicine. “Internal medicine is recognized as a specialty” with “more than 20 subspecialties that often have little to do with one another.” Stokes, ___ Mich at ___. “For instance, a pulmonologist and a cardiologist are both subspecialists under the specialty of internal medicine.” Id. at ___. “A pulmonologist is an internal medicine physician who specializes in the respiratory system.” Id. at ___ n 17. “A cardiologist is an internal medicine physician who specializes in the heart.” Id. at ___ n 18. “Concerns have been raised that doing away with consideration of subspecialties for purposes of the matching requirement would mean that a pulmonologist would then be qualified to testify against a cardiologist since both share the same specialty.” Id. at ___. “However, this argument ignores MCL 600.2169(2) and (3).” Stokes, ___ Mich at ___. “Even if expert specialties ‘match’ under MCL 600.2169(1), the trial court still has discretion on whether to accept the expert as qualified to provide testimony in a particular case.” Stokes, ___ Mich at ___.

Radiology specialties. “Neuroradiology is a subspecialty of diagnostic radiology; within both disciplines, a physician is trained in interpreting bodily images, although neuroradiologists specialize in interpreting images of the brain, spine, head, and neck.” Stokes, ___ Mich at ___. In Stokes, diagnostic radiology was “the one most relevant specialty . . . because it was the only specialty that defendant held and practiced.” Id. at ___. “Therefore, the proposed expert would need to be a specialist in diagnostic radiology, which he was.” Id. at ___. “[P]laintiff’s proposed expert . . . practices] diagnostic radiology whenever he reads a neuroimaging scan.” Id. at ___. In other words, plaintiff’s expert “spen[t] 100% of his time practicing the ‘one relevant specialty’—diagnostic radiology—and thus he satisfie[d] the requirements under MCL 600.2169(1) to testify as an expert in the case against [the defendant].” Stokes, ___ Mich at ___ (holding that plaintiff’s proposed expert “was qualified because his subspecialty of neuroradiology was subsumed within the broader specialty of diagnostic radiology”).

Osteopathic/allopathic physician. The fact that defendant-doctor was a licensed osteopathic physician (D.O.) and the doctor who executed an affidavit of merit on plaintiff’s behalf was a licensed allopathic physician (M.D.) was “not pertinent in analyzing MCL 600.2169(1)(b)(i) . . . because the specialty of obstetrics-gynecology govern[ed] the standard of practice of care under MCL 600.2169(1)(a)” and plaintiff’s expert had “devoted a majority of his professional time to the active clinical practice of obstetrics-gynecology” “during the year immediately preceding the alleged act of malpractice[.]” Crego v Edward W Sparrow Hosp Ass’n, 327 Mich App 525, 530 (2019). “[T]he requirements of [MCL 600.2169(1)(a)] were satisfied because both doctors [were] board-certified OB-GYNs,” and MCL 600.2169(1)(b) “does not require re-evaluation of whether there are matching credentials. Whether a defendant and a plaintiff’s expert practiced in the ‘same health profession’ . . . need only be resolved when a specialty, board-certified or otherwise, is not implicated[.]” Crego, 327 Mich App at 533, 535.

Nurses. Where the plaintiff’s proposed nursing expert, a certified nurse practitioner, “did not spend the majority of her professional time in the year preceding the alleged malpractice practicing or teaching the health profession of a nurse, as opposed to the health profession of a nurse practitioner, she did not satisfy the statutory criteria [under MCL 600.2169(1)(b)] to testify concerning the standard of care applicable to [the defendant], a registered nurse[, and the proposed expert witness’s] testimony was therefore properly excluded.” Cox v Hartman, 322 Mich App 292, 305 (2017) (concluding that “[t]he health profession of a nurse and the health profession of a nurse practitioner are different, as reflected in the fact that the former is practiced pursuant to a license while the latter is practiced pursuant to a registration or specialty certification”).

C.Trial Court Discretion in §600.2169(2) and §600.2169(3)

“Even if expert specialties ‘match’ under MCL 600.2169(1), the trial court still has discretion on whether to accept the expert as qualified to provide testimony in a particular case.” Stokes v Swofford, ___ Mich ___, ___ (2024) (holding “that a trial court must ensure that experts with matching specialties under MCL 600.2169(1) meet other criteria set forth in MCL 600.2169(2) and that MCL 600.2169(3) provides trial courts with broad discretion in assessing experts”). “MCL 600.2169(2) mandates that the trial court evaluate all the following factors:

‘(a) The educational and professional training of the expert witness.

(b) The area of specialization of the expert witness.

(c) The length of time the expert witness has been engaged in theactive clinical practice or instruction of the health profession or the specialty.

(d) The relevancy of the expert witness’s testimony.’” Stokes, ___ Mich at ___.

Additionally, “[MCL 600.2169(3)] does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in [MCL 600.2169].” In Stokes, the Michigan Supreme Court “clarif[ied] the standard of care requirements for expert medical witnesses under MCL 600.2169, as interpreted in Woodard v Custer.”⁴ Stokes, ___ Mich at ___ (overruling Woodard “in part because the test adopted by the Woodard Court regarding the evaluation of specialists in medical malpractice actions [was] inconsistent with the statutory language in MCL 600.2169”). “Specifically, Woodard incorrectly conflated the terms ‘specialty’ and ‘subspecialty’ in a manner that [was] inconsistent with the plain language of the statute” and “essentially negated MCL 600.2169(2) and (3), which provide significant discretion to trial courts to exclude experts even when such experts qualify under [MCL 600.2169(1)].” Stokes, ___ Mich at ___.

Internal medicine. “Internal medicine is recognized as a specialty” with “more than 20 subspecialties that often have little to do with one another.” Stokes, ___ Mich at ___. “For instance, a pulmonologist and a cardiologist are both subspecialists under the specialty of internal medicine.” Id. at ___. “A pulmonologist is an internal medicine physician who specializes in the respiratory system.” Id. at ___ n 17. “A cardiologist is an internal medicine physician who specializes in the heart.” Id. at ___ n 18. “Concerns have been raised that doing away with consideration of subspecialties for purposes of the matching requirement would mean that a pulmonologist would then be qualified to testify against a cardiologist since both share the same specialty.” Id. at ___. “However, this argument ignores MCL 600.2169(2) and (3).” Stokes, ___ Mich at ___. Indeed, “the trial court would easily exclude a pulmonologist’s testimony [under MCL 600.2169(2)] because the relevancy of that testimony would prove futile to ascertaining the cardiologist’s performance.” Id. at ___. “Moreover, a trial court could go further under MCL 600.2169(3),” which “allows disqualifications by the trial court for other reasons, meaning an internist who exclusively treats medical conditions associated with the lungs could be deemed unqualified to testify as an expert for an internist who exclusively treats medical conditions associated with the heart if the alleged malpractice involved an alleged error that is specific to the heart.” Stokes, ___ Mich at ___.

D.Exception to Requirement of Expert Testimony

Generally, an expert must testify in a medical malpractice action. However, “[a]n exception exists when the professional’s breach of the standard or care is so obvious that it is within the common knowledge and experience of an ordinary layperson.” Elher v Misra, 499 Mich 11, 21-22 (2016).

E.Hospital Regulations, Reports, and Peer Review Records

“[V]iolation of a regulation promulgated pursuant to statutory authority is admissible in a medical malpractice action,” but hospital policies do not establish the standard of care or its violation. Gallagher v Detroit-Macomb Hosp Ass’n, 171 Mich App 766 (1988) (“[i]n general, the standard required of physicians and nurses . . . is not established by internal, administrative rules”). However, “internal rules and regulations are not categorically inadmissible as irrelevant.” Meyers v Rieck, 509 Mich 460, 482 (2022). “[W]hile hospital rules and regulations [cannot] establish the standard of care, they ‘[can] be admissible as reflecting the community’s standard where they were adopted by the relevant medical staff and where there is a causal relationship between the violation of the rule and the injury.’” Id. at 478, quoting Gallagher, 171 Mich App at 767.   “[A] medical provider’s rules and regulations can be used as evidence to help determine the standard of care, but they cannot be used as the standard itself without additional evidence.” Id. at 480. “[C]ourts must be cautious in admitting this evidence” and “any jury receiving such evidence must be instructed as to its proper use.” Id. at 481. “[A] medical provider’s internal rules and regulations . . . must meet general evidentiary standards, including that the evidence be relevant . . . and its probative value must not be outweighed by the concerns listed in MRE 403.” Meyers, 509 Mich at 481. Put differently, “[i]f they meet the rules governing the admission of evidence and if the jury is instructed as to their proper use — i.e., that they are evidence of the standard of care and do not fix the standard itself — then they might be admitted.” Id. at 482.

A hospital incident report or peer review record may be inadmissible under the peer review privilege set forth by MCL 333.20175(13) and MCL 333.21515. See also Gallagher, 171 Mich App at 769-770.⁵ MCL 333.20175(13) and MCL 333.21515 “make privileged all records, data, and knowledge collected for or by a peer review committee in furtherance of its statutorily mandated purpose of reducing morbidity and mortality and improving patient care.^[6] This includes objective facts gathered contemporaneously with an event contained in an otherwise privileged incident report.” Krusac v Covenant Med Ctr, Inc, 497 Mich 251, 263 (2015). However, “the scope of the [peer review] privilege is not without limit.” Id. at 261. “[T]he privilege only applies to records, data, and knowledge that are collected for or by the committee under [MCL 333.20175(13) and MCL 333.21515] ‘for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients.’” Krusac, 497 Mich at 261-262, quoting MCL 333.21513(d).⁷ “In determining whether any of the information requested is protected by the statutory privilege, the trial court should bear in mind that mere submission of information to a peer review committee does not satisfy the collection requirement^[8] so as to bring the information within the protection of the statute. Also, in deciding whether a particular committee was assigned a review function so that information it collected is protected, the court may wish to consider the hospital’s bylaws and internal regulations, and whether the committee’s function is one of current patient care or retrospective review.” Monty v Warren Hosp Corp, 422 Mich 138, 146-147 (1985) (citations omitted). Moreover, litigants “may still obtain relevant facts through eyewitness testimony, including from the author of a privileged incident report, and from the patient’s medical record.” Krusac, 497 Mich at 262.

“Nothing in the pertinent language of [MCL 333.20175(13)] suggests that the privilege does not extend to a freestanding surgical outpatient facility exercising the same credentialing review function under MCL 333.20813(c) that a hospital performs under MCL 333.21513(c).” Dorsey v Surgical Institute of Mich, LLC, 338 Mich App 199, 228 (2021).⁹ MCL 333.21515 references Article 17, “which governs a wide variety of health facilities or agencies, including freestanding surgical outpatient facilities. However, the specific provision is set forth in Part 215 of Article 17, which addresses matters related to the narrower category of entities that constitute hospitals.” Dorsey, 338 Mich App at 228. “[D]espite the placement of MCL 333.21515 in Part 215 alongside other provisions applicable to hospitals, the Legislature’s reference to the review functions described in Article 17, as opposed to Part 215, evidences its intent to extend the statutory privilege for peer-review materials to all health facilities and agencies with review functions imposed by Article 17.” Dorsey, 338 Mich App at 229 (concluding the peer review privilege in MCL 333.21515 applied to defendant (a freestanding surgical outpatient facility), that “[t]he plain language of [MCL 333.20175(13)] limited the use of [the credentialing file] to purposes provided in Article 17,” and that “the file was not subject to discovery and should not have been admitted at trial”).

F.Discovery

A defendant’s attorneys are entitled to communicate ex parte with a plaintiff’s treating physician when the plaintiff has waived the physician-patient privilege.¹⁰ Domako v Rowe, 438 Mich 347, 362 (1991) (privilege was waived in the Domako case “by lack of timely assertion”). See also MCR 2.302(C). Pursuant to MCR 2.314(A)(1), when the mental or physical condition of a party is in controversy, medical information is generally subject to discovery. Davis v Dow Corning Corp, 209 Mich App 287, 292-293 (1995). Accordingly, once the patient allows discovery of medical information, there are no grounds for restricting access to the patient’s physician. Id. at 293.

G.Weight of Expert Testimony

“[A] jury [can] disregard a physician’s unrebutted testimony[.]” Taylor Estate v Univ Physician Group, 329 Mich App 268, 282 (2019). “[A] jury may disbelieve the most positive evidence even when it stands uncontradicted, and the judge cannot take from them their right of judgment[.]” Strach v St John Hosp Corp, 160 Mich App 251, 271 (1987) (citation omitted). See also Ykimoff v W A Foote Mem Hosp, 285 Mich App 80, 89-90 (2009); Martin v Ledingham, 488 Mich 987, 987-988 (2010). “[A] jury is free to credit or discredit any testimony.” Kelly v Builders Square, Inc, 465 Mich 29, 39 (2001). “That the physicians involved . . . are professional observers does not change the rule that their eyewitness testimony may be disbelieved by a jury.” Taylor Estate, 329 Mich App at 285.