                             STATE OF MICHIGAN

                              COURT OF APPEALS



BECKI WASSMANN,                                                       UNPUBLISHED
                                                                      February 18, 2016
                 Plaintiff-Appellant,

v                                                                     No. 322493
                                                                      Alpena Circuit Court
RICHARD D. BATES, M.D,                                                LC No. 12-004729-NH

                 Defendant-Appellee.


Before: METER, P.J., and BORRELLO and BECKERING, JJ.

PER CURIAM.

       In this medical malpractice action, plaintiff, Becki Wassmann, appeals as of right from a
judgment of no cause of action following a jury trial. Of the three issues plaintiff raises on
appeal, we find one to be both meritorious and affecting plaintiff’s substantial right to a fair trial
for which a failure to reverse would be inconsistent with substantial justice. Due to defense
counsel’s improper impeachment of plaintiff’s expert witness with an irrelevant and prejudicial
administrative complaint and consent judgment, the trial court’s improper admission of the
complaint and consent judgment into evidence in violation of MRE 608(b), and defense
counsel’s repeated references to these irrelevant and prejudicial documents for purposes of
character assassination during opening statement and closing argument, we reverse and remand.

                     I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Plaintiff went to see defendant, Richard D. Bates, M.D., for treatment in November 2010
because she had been experiencing abdominal pain and severe menstrual bleeding for two
months. An ultrasound showed no polyps inside plaintiff’s uterus, but the endometrial lining of
the uterus was thickened. Defendant performed a pap smear and removed a polyp on plaintiff’s
cervix. Defendant also performed an endometrial biopsy1, which tested negative for disease.




1
    An endometrial biopsy entails taking a tissue sample from the lining of the uterus.


                                                  -1-
        Plaintiff’s pain and bleeding continued, and she followed up with defendant. Defendant
diagnosed her with adenomyosis.2 Plaintiff expressed a desire for treatment with the shortest
possible recovery time. Defendant believed that a supracervical hysterectomy3 would be
plaintiff’s best option.

        On December 28, 2010, defendant conducted a supracervical hysterectomy by way of
laparoscopic surgery, wherein instruments, including a camera, were inserted into plaintiff’s
abdomen through a small incision. During surgery, defendant and Dr. Brendan Conboy, who
assisted defendant, used a television screen to visualize plaintiff’s abdominal cavity. One of the
tools used to remove plaintiff’s uterus was a GYRUS, which clamps, burns, and then cuts tissue.
It is undisputed that plaintiff suffered an injury to the distal end of her right ureter4 at some point
during the surgery. Following surgery and until approximately August 2012, plaintiff
experienced a number of complications involving voiding urine and incontinence, requiring
several procedures to correct the problem.

       Plaintiff sued defendant for medical malpractice, alleging that he breached the standard
of care in two respects. First, he should have attempted a less invasive procedure called an
endometrial ablation5 instead of a supracervical hysterectomy surgery; a supracervical
hysterectomy is more invasive and carries a greater risk of complications. According to plaintiff,
an endometrial ablation has a very high success rate, and in this instance, it more than likely than
not would have made the riskier surgery unnecessary, thus averting the complication that ensued.
Second, during the supracervical hysterectomy, defendant breached the applicable standard of
care because he cut or burned the ureter, which he admitted he never visualized. In other words,
he necessarily moved the cautery tip outside his field of view. Defendant claimed that he did not
commit malpractice because plaintiff was not a good candidate for an endometrial ablation and
the damage to plaintiff’s ureter during the supracervical hysterectomy surgery was due to
inadvertent thermal spread, an indirect injury caused by the cautery device that was not his fault.




2
  Adenomyosis “occurs when endometrial tissue, which normally lines the uterus, exists within
and grows into the muscular wall of the uterus. The displaced endometrial tissue continues to act
as it normally would—thickening, breaking down and bleeding—during each menstrual cycle.
An enlarged uterus and painful, heavy periods can result.” Mayo Clinic, Diseases and
Conditions, <http://www.mayoclinic.org/diseases-conditions/adenomyosis/basics/definition/con-
20024740> (accessed February 11, 2016).
3
    In a supracervical hysterectomy, the body of the uterus is removed but the cervix is left intact.
4
    The ureter is the duct by which urine passes from the kidney to the bladder.
5
  “Endometrial ablation is a procedure that destroys (ablates) the uterine lining, or endometrium.
This procedure is used to treat abnormal uterine bleeding . . . . The endometrium heals by
scaring, which usually reduces or prevents uterine bleeding. Endometrial ablation may be done
in an outpatient facility or in [a] doctor’s office.”               WebMD, Women’s Health,
<http://www.webmd.com/women/endometrial-ablation-16200> (accessed February 11, 2016).


                                                   -2-
                              A. PLAINTIFF’S CASE-IN-CHIEF

        At trial, plaintiff admitted into evidence portions of defendant’s deposition testimony
wherein he agreed to various aspects of the standard of care, including the need to identify and
avoid injury to the patient’s ureters. Plaintiff also admitted portions of defendant’s expert
witness Dr. Dov Schuchman’s deposition testimony addressing the topic of visualization when
utilizing a thermal device.

        In her testimony, plaintiff described her two-month history of pain with menstruation and
an extended menstrual cycle, as well as her treatment with defendant. She recalled defendant
considering endometriosis as a possible diagnosis, a condition that her sister had experienced.
She recalled defendant removing a polyp, and laboratory testing revealed that it was normal.
Plaintiff did not recall defendant discussing the possibility of adenomyosis as the cause of her
problems or treatment by way of an endometrial ablation. She testified regarding the significant
medical complications that ensued after surgery and how it affected her life. James Leeseberg,
who was living with plaintiff at the time of the surgery, testified regarding his observations of
plaintiff at the time of and following surgery, as did plaintiff’s mother. The de bene esse
deposition of Dr. Aditya Bulusu was read into evidence.6

        Plaintiff called as an expert witness Dr. Ronald Zack, whose testimony was procured and
read into evidence by way of a de bene esse deposition. Dr. Zack testified that plaintiff’s ureters
should have been visible during the surgery, and that, to meet the applicable standard of care,
“[y]ou have to know where the ureters are” during a supracervical hysterectomy. He testified
that the standard of care prohibited cutting, burning, or clamping any area that was not visible on
the television screen. Dr. Zack noted that defendant’s operative report did not indicate that he
ever visualized plaintiff’s ureters. Given defendant’s statement in his deposition that he was not
able to visualize the ureter that was injured during surgery, Dr. Zack opined that defendant
“negligently burned a ureter in an area that he could not visualize . . . .”7 Dr. Zack rejected
defendant’s thermal spread theory. According to Dr. Zack, just as a match touched to skin may
burn slightly beyond the contact point, thermal spread can occur beyond the tip of the cautery
tool used during surgery, but the doctor should know how far the heat is going to be transmitted
from the instrument, control the wattage of heat used to burn tissue, and make sure to stay away
from nearby structures. Dr. Zack did not believe that thermal spread was the cause of plaintiff’s
injured ureter.

        Dr. Zack also testified that a supracervical hysterectomy surgery was not necessary in the
first place. He explained that upon verifying there is no cancer, malignancy, or similar
condition, a physician treating a patient’s symptoms like plaintiff’s must pursue treatment


6
 Dr. Bulusu’s de bene esse deposition, which was read to the jury at trial but not transcribed, is
not part of the trial court record and neither party produced it on appeal.
7
 Dr. Zack clarified that damage can occur to ureters during the normal course of safely operating
on a patient, but if the doctor cuts or clamps an area he or she cannot visualize, he or she is
violating “one of the hallmarks of surgery,” and committing a breach of the standard of care.


                                                -3-
options “going from the safest, least invasive to the most invasive. . . . If you go too far and
cause problems, you can’t take that back.” Given plaintiff’s medical history, he believed that the
proper course of treatment was an endometrial ablation, which is less invasive, and thus, less
risky than a supracervical hysterectomy. He described an endometrial ablation as a “ten-minute
outpatient procedure” that involves burning the lining of the uterus. Unlike a laparoscopic
supracervical hysterectomy, it entails “absolutely no cuts or incisions” in the abdomen, and when
done correctly, it does not cause ureteral injury. According to Dr. Zack, in “greater than 90
percent” of patients who undergo an endometrial ablation, it will “stop their bleeding and help
their pain either to disappear or significantly improve it.” With regard to plaintiff, Dr. Zack
testified that an endometrial ablation would “more likely than not” have corrected the problem.
The failure to select this procedure for plaintiff was, in Dr. Zack’s opinion, a breach of the
acceptable standard of care, especially given the fact that plaintiff’s symptoms had only existed
for a few months.

        On cross-examination, defendant presented Dr. Zack with evidence that subsequent
testing of plaintiff’s uterus, which was removed during the surgery, showed adenomyosis in the
myometrial8 layer of the uterus. Dr. Zack testified that in the presence of adenomyosis, an
endometrial ablation burns the endometrium and superficial myometrium, and thus, it may
remove superficial adenomyosis, and while it may not completely remove the adenomyosis in
the myometrium, “the symptoms of adenomyosis, being the bleeding, the bleeding can’t occur
now because there’s no [uterus] lining, so it corrects that –even if there’s adenomyosis.”
Although he admitted there was a chance the endometrial ablation would not completely resolve
plaintiff’s pain issues, he felt the procedure more likely than not have would have been
successful.

        Defense counsel then turned his focus to money. He asked Dr. Zack what he charged for
endometrial ablations. When Dr. Zack indicated that he did not know, and that it would be a
question for his office manager, defense counsel asked if Dr. Zack was once charging $2,000 for
the procedure. Dr. Zack indicated that it was possible, but he was doing a different form of the
procedure at that time. Defense counsel then inquired whether Dr. Zack had ever gotten “into
difficulty with regard to the number of ablations” he was doing, and whether he was ever
“criticized for unnecessarily performing ablation procedures?” Plaintiff’s counsel objected to the
question as being irrelevant. Because it was a de bene esse deposition, determination of the
admissibility of the response was left to a subsequent court ruling, wherein the trial court
admitted the response as well as the entire line of questioning thereafter. Dr. Zack testified that
he had never been criticized for unnecessarily performing an endometrial ablation. Defense
counsel then presented a piece of extrinsic evidence in an ostensible effort to impeach Dr. Zack,
and read it into the record as follows:

         Q: Never. I want to show you the consent judgment which was entered by the
         Department of Consumer Affairs – actually the Department of Consumer and Industry




8
    The myometrium is the middle layer of the uterine wall.


                                                -4-
       Services, Office of Healthcare Services, the Board of Medicine Disciplinary
       Subcommittee consent order entered in the matter of Ronald G. Zack.

       A: What year was that [defense counsel]?

       Q: This is –

       A: I believe 1997, 17 years ago.

       Q: 1997

       A: That’s correct, yes.

       Q: Okay.

Plaintiff’s counsel again objected to relevance, but defense counsel continued:

       Q: Do you still maintain that you were never reprimanded for needlessly performing
       ablations?

       A: I was never reprimanded for endometrial ablation.

Although the consent judgment contains no discussion of endometrial ablations, defense counsel
began to question Dr. Zack regarding other unrelated medical procedures that were addressed in
the consent judgment:

       Q: What about laser ablation?

       A: That’s not endometrial, that’s cervix. That had nothing to do with endometrial
       ablation.

       Q: Were you reprimanded for doing laser ablation?

       A: That’s a whole diff –that’s for abnormal cells and tissues. As a matter of fact, it had
       no effect on my license and I was not reprimanded. I was assessed $2,000. I was not
       reprimanded.

       Q: Did you also at that time –were you also fined for unnecessarily performing
       hysteroscopy[9] procedures?



9
  Hysteroscopy is a way for a doctor to view the lining of the uterus. The doctor uses a thin
viewing tool, called a hysteroscope, that contains a light and a camera, which is inserted into the
vagina and gently moved through the cervix into the uterus. The images captured by the camera
are then projected onto a video screen. WebMD, Infertility & Reproduction Health Center,
<http://www.webmd.com/infertility-and-reproduction/guide/hysteroscopy-infertility> (accessed
February 11, 2016).


                                                -5-
       A: Which I pled no contest to and I disagreed with the finding.

       Q: So you paid the fine rather than fight the –

       A: That’s –

       Q: --the charge?

       A: That’s correct.

Defense counsel continued to probe into the topic of Dr. Zack’s own medical practice and the
presumption that Dr. Zack, as evidenced by the administrative complaint, was a doctor who
performed unnecessary medical procedures for monetary gain, thereby putting his patients at
risk:

       Q: The performance of an unnecessary procedure, you would agree with me,
       unnecessarily puts a patient at risk for complications, irrespective of whether it’s
       hysterectomy or an ablation procedure?

       A: I have never been accused by a patient of ever performing an unnecessary procedure
       to any board or attorney.

       Q: Well then I move for the admission of this finding.

       A: Those are not patients. Those are the –there was no patient complaint involved in
       that. That was an insurance company, [defense counsel].

       Q: I have – I think –

       A: There’s no – there was never a patient complaint.

       Q: Doctor, we’re just going to – we’re just going to –

       A: Read it. It’s from an insurance company –

       Q: We’re going to move to mark –

       A: -- that disagreed with –

       Q: We’re just going to move to enter this and we’ll have the jury read it.

       A: Show –

       [Defense counsel]: We’ll move it – I move for the admission of Defendant’s Exhibit
       Number 1.

       [Plaintiff’s counsel]: Number one, I will object to it as lack of any relevance to the issues
       in this case. You can mark it for purposes of later argument.


                                                -6-
                                                 ***

       A: As a final statement, there was never a patient complaint. This was from an insurance
       company which disputed the procedures that I did, and I felt they were necessary. There
       were five patients involved. Every patient improved, not one patient ever complained to
       any agency or insurance company.

       And secondly, endometrial ablation was never done or mentioned in any of those
       patients.

       The trial court denied plaintiff’s motion to exclude the above testimony at trial, and it was
admitted. The trial court also denied plaintiff’s motion to exclude the administrative complaint
and consent judgment; thus, defendant marked and admitted them into evidence during trial.

        Cross examination continued, and defense counsel asked Dr. Zack if he had ever had
instances where injury occurred to surrounding tissue that was not within the operative field that
he was focusing on through his laparoscope. Dr. Zack testified that he had never, in his 37 years
of practice, had a bowel, bladder, or ureter injury. Defense counsel then asked him, “Is that just
as true as the testimony that you had never had a complaint brought against you by the Board of
Medicine?” Dr. Zack undertook to again defend himself regarding the administrative complaint.

       As will be discussed in more detail below, in his defense of the case, defendant utilized
the above testimony and disciplinary proceeding as a major theme throughout the trial.

                              B. DEFENDANT’S CASE-IN-CHIEF

        Defendant presented several witnesses in support of his defense. Dr. Bradley Boehm,
plaintiff’s subsequent treating urologist, testified that in his opinion, plaintiff’s post-operative CT
scan and the timing of her developing symptoms were more consistent with a thermal injury,
rather than an inadvertent cut or burn. Dr. Brendan Conboy, who assisted defendant with
plaintiff’s surgery, testified that while a doctor should know where the ureters are at all times
during surgery, in his experience, they are not always visible. He further claimed that there was
never a time when the tip of the cautery device went outside the viewing screen during plaintiff’s
surgery. Defendant also testified in his own defense. He explained why he chose to perform a
supracervical hysterectomy and why an endometrial ablation would not have been appropriate.
He also contended that, while a surgeon should always be cognizant of where a patient’s ureters
are during surgery, the tip of the cautery device used in plaintiff’s surgery was never outside of
his field of vision, and it never came in contact with her ureter. Like Dr. Boehm, he opined that
plaintiff’s uretal injury was due to thermal spread.

        Dr. Dov Schuchman, another of plaintiff’s subsequent care providers, also testified on
defendant’s behalf. He contended that the location of plaintiff’s ureteral injury was within the
“penumbra” of energy that can be emitted from the cautery device used in the surgery, and that
such energy can “theoretically traverse a certain amount of distance beyond our control because
we—we look at the instruments, but it’s known that some energy, probably the best word, can
traverse beyond our intention.” Dr. Schuchman opined that it was more likely that injury would
occur due to thermal spread than due to direct contact with the cautery tool. He weighed in on
standard of care, claiming that while a doctor should always know where the ureters are during
                                                 -7-
the surgery, the doctor would not be able to view the ureters at all times during the procedure.
He also agreed, however, that the cautery device should not be used in an area where the
operator cannot see. Dr. Schuchman disagreed with Dr. Zack’s contention that the standard of
care required the performance of an endometrial ablation instead of a supracervical hysterectomy
surgery.

         C. OPENING STATEMENTS, CLOSING ARGUMENTS, AND VERDICT

       As averred to above, defense counsel extensively utilized the administrative complaint
and consent judgment against Dr. Zack, as well as all of his related testimony, in order to attack
Dr. Zack’s credibility and plaintiff’s case as a whole. For instance, during his opening
statement,10 defense counsel impugned Dr. Zack’s expected testimony in regard to whether an
endometrial ablation was necessary in this case by noting that “he was fined for performing too
many ablation procedures, because it’s not right and it’s a violation of the standard of care to
perform unnecessary procedures which are not directed to the specific anatomy and per—and
problem that you’re treating.” Counsel persisted along this line, stating that performing
unnecessary procedures “runs up medical bills and [Dr. Zack] got fined for it.”

       Defense counsel returned to this theme during closing argument, and he suggested that
Dr. Zack was responsible for “driv[ing] up” the cost of health care in America:

               [An endometrial ablation is] not going to do anything good for [plaintiff]
       if she has adenomyosis, but you can still bill $2,000 for it. And then later, you
       can do the hysterectomy too. Some doctors do that. Doctors like that drive up the
       cost of medicine in America today.

               One of those doctors, who was fined by the board of medicine, for doing
       ablation procedures unnecessarily happens to be the plaintiff’s expert witness, Dr.
       Zack. Isn’t that interesting? Dr. Zack performed unnecessary procedures to five
       patients and was fined for that.

After blaming plaintiff’s chosen expert, Dr. Zack, for the increased cost of medical care in this
country, defense counsel read to the jury the contents of the administrative complaint, which
detailed the procedures—none of which are pertinent to this case—which were alleged to have
been unnecessary in 1997. Finally, in discussing potential bias or interest harbored by witnesses,
defense counsel returned to Dr. Zack and his assertion that Dr. Zack lied during his testimony,
stating:

       A person who will deceive you on minor things—it’s been my experience, that a
       person who will deceive a person on minor things will deceive a person on large
       things too. And [Dr. Zack] did. . . . . Let me see if I can find it. Okay. [By Dr.


10
  Because Dr. Zack’s de bene esse deposition was taken before trial, and apparently the
admissibility of his testimony was preliminarily discussed in chambers before trial, defense
counsel openly discussed Dr. Zack’s consent judgment during his opening statement.


                                               -8-
       Zack] “I have never been accused by a patient of ever performing an unnecessary
       procedure to any board or attorney.” Well, yes, you have, Doctor, and you
       consented to the payment of a fine by five patients.

       The jury returned a verdict of no cause of action against plaintiff, and this appeal
followed.

                                          II. ANALYSIS

                          A. CROSS-EXAMINATION OF DR. ZACK

       Plaintiff contends on appeal that the trial court erred in admitting irrelevant and
prejudicial evidence when cross-examining Dr. Zack and by improperly admitting into evidence
the 1997 administrative complaint and consent judgment. We agree.

       The trial court’s decision regarding the scope of cross-examination is reviewed for an
abuse of discretion. Richardson v Ryder Truck Rental, Inc, 213 Mich App 447, 454; 540 NW2d
696 (1995). “An abuse of discretion occurs when the trial court’s decision is outside the range of
reasonable and principled outcomes.” Moore v Secura Ins, 482 Mich 507, 516; 759 NW2d 833
(2008). We will not reverse based on a trial court’s evidentiary error “ ‘unless refusal to take this
action appears . . . inconsistent with substantial justice,’ or affects ‘a substantial right of the
[opposing] party.’ ” Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004), quoting
MCR 2.613(A) and MRE 103(a).

               1. DEFENDANT’S PURPORTED IMPEACHMENT EVIDENCE
                     WAS IRRELEVANT AND UNDULY PREJUDICIAL

        Dr. Zack testified that defendant violated the standard of care in two ways, one of which
was his failure to conduct an endometrial ablation, a less invasive procedure, before resorting to
a supracervical hysterectomy surgery. As noted above, defense counsel cross-examined Dr.
Zack by delving into the contents of a 17-year-old administrative complaint and consent
judgment. Specifically, defense counsel began by asking Dr. Zack whether he had ever gotten
“into difficulty” or been criticized for unnecessarily performing ablation procedures. Plaintiff’s
counsel objected to the relevancy of the question. Dr. Zack focused his response on the fact that
he had never been criticized for unnecessarily performing an endometrial ablation, the procedure
at issue in this case. Defendant immediately produced the administrative complaint and consent
judgment and proceeded to cross examine Dr. Zack regarding its contents. Despite Dr. Zack’s
efforts to clarify that the administrative complaint did not deal in any way with endometrial
ablations, and he had never been criticized for his decision to perform that procedure, defense
counsel probed further into ablations in general, prompting Dr. Zack to attempt to defend himself
by stating that the administrative complaint stemmed from an insurance company that was
unhappy with his billings, not from any patients taking issue with the quality of his medical care.

        Our review of the administrative complaint confirms that the complaint addressed the
performance of a “laser ablation of the cervix” under colposcopic guidance, which entails a
different part of the female anatomy for a different medical issue. The rest of the alleged

                                                -9-
unnecessary procedures in the administrative complaint were unrelated to the procedures at issue
in this case and the majority of them did not involve ablations of any type.

        “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” MRE 401. “Evidence which is not relevant is not
admissible.” MRE 402. “A witness may be cross-examined on any matter relevant to any issue
in the case, including credibility.” MRE 611(c). In particular, “when a case turns on the
testimony of one expert compared with that of another, the credibility of each expert is relevant
to the disposition of the case.” Wischmeyer v Schanz, 449 Mich 469, 475; 536 NW2d 760
(1995). In addition, MRE 608(b) provides:

       Specific instances of the conduct of a witness, for the purpose of attacking or
       supporting the witness’ credibility, other than conviction of crime as provided in
       Rule 609, may not be proved by extrinsic evidence. They may, however, in the
       discretion of the court, if probative of truthfulness or untruthfulness, be inquired
       into on cross-examination of the witness (1) concerning the witness' character for
       truthfulness or untruthfulness, or (2) concerning the character for truthfulness or
       untruthfulness of another witness as to which character the witness being cross-
       examined has testified. [Emphasis added.]

        We agree with plaintiff that the administrative complaint and consent judgment were
irrelevant and prejudicial and that defendant’s impeachment of Dr. Zack with the documents and
information contained therein was improper. The fact that Dr. Zack dealt with a 1997
administrative complaint and consent judgment regarding unrelated medical treatments had
nothing to do with either his credibility regarding the issues at hand or his character for
truthfulness or untruthfulness,11 nor was the information relevant in any other way. We find our
Supreme Court’s decision in Wischmeyer, 449 Mich 469, instructive. In that case, the defense
attorney attempted to cross-examine the plaintiff’s medical expert about a prior, unrelated
malpractice suit filed against that expert in California. Id. at 481-482. The Court held that “the
mere fact that an expert may have been named in an unrelated medical malpractice action is not
probative of his truthfulness under MRE 608 or relevant to his competency or knowledge.” Id. at
482. This Court has reached similar conclusions. See, e.g., Heshelman v Lombardi, 183 Mich
App 72, 85; 454 NW2d 603 (1990) (“The fact that [the expert] was named a defendant in a
malpractice suit is in no way probative of his truthfulness. Nor was this fact probative of [the
expert’s] competency or knowledge.”).



11
   Although defense counsel attempted to solicit a lie from Dr. Zack in order to impeach him
with the documents, he was not permitted to delve into irrelevant or unduly prejudicial
information in order to entice the witness to lie. Plaintiff timely objected to the line of
questioning from the outset. Her objection should have been sustained. Any follow-up
impeachment testimony should not have been admitted either. Moreover, review of the record
reveals that Dr. Zack did not lie, so he did not subject himself to impeachment with regard to his
truthfulness.


                                              -10-
        Here, the consent judgment and administrative complaint were not probative of Dr.
Zack’s character for truthfulness, nor were they relevant to his competency, knowledge, or
credibility. As Dr. Zack noted during the deposition, he had never been cited or criticized for
unnecessarily performing the procedures at issue in this case. Nor is it apparent from either the
consent judgment or testimony that Dr. Zack had ever been criticized or disciplined for
performing unnecessary, less invasive procedures, which is what defendant accused him of in
this case. The complaint simply alleged that certain procedures performed by Dr. Zack in
unrelated circumstances more than 17 years earlier were unnecessary. And, we note that the
administrative complaint reveals that Dr. Zack was criticized in one case for performing a more-
invasive procedure without first trying a less invasive procedure; in this case Dr. Zack was
advocating for a less invasive procedure, and thus, the consent judgment did absolutely nothing
to further defense counsel’s point. Rather, defense counsel introduced irrelevant evidence in
violation of MRE 402 and in contravention of MRE 404(b) as other acts evidence for purposes of
character assassination to taint Dr. Zack with the reek of an administrative complaint, depicting
him as someone who should not be trusted because his sole motivation is to perform procedures
in order to bilk insurance companies and “drive up the cost of medicine in America today.” The
consent judgment and administrative complaint were simply not relevant to Dr. Zack’s character
for truthfulness under MRE 608, nor were they relevant to his competency, knowledge, or
credibility in this case.12 See Wischmeyer, 449 Mich at 482.

       Furthermore, even assuming some limited relevance of the testimony,13 it should have
been excluded under MRE 403, which provides that:

       Although relevant, evidence may be excluded if its probative value is
       substantially outweighed by the danger of unfair prejudice, confusion of the
       issues, or misleading the jury, or by considerations of undue delay, waste of time,
       or needless presentation of cumulative evidence.

Given that the administrative complaint contained allegations by “The State of Michigan
Department of Consumer and Industry Services Office of Health Services Board of Medicine
Disciplinary Subcommittee” relating to several, unrelated procedures, any marginal relevance in
anything relating to the proceeding was more than substantially outweighed by the danger of
unfair prejudice and jury confusion. The administrative complaint and consent judgment had


12
   Defense counsel used the administrative complaint much like one would seek to attack the
credibility of a witness by introducing evidence of a conviction of a crime under MRE 609.
However, neither the administrative complaint nor the consent judgment constitute a conviction
of a crime, the alleged acts addressed therein did not entail punishment by imprisonment in
excess of one year, and far more than ten years had elapsed.
13
   Had Dr. Zack previously been criticized for unnecessarily performing the same procedure at
issue in this case, our resolution of the issue might be different. However, as noted, the ablation
complained of in the administrative complaint was not the same as the procedure at issue in this
case. Furthermore, the administrative complaint was not limited to the ablation procedure. It
also included several additional, irrelevant procedures.


                                               -11-
little bearing on anything pertinent to this case, and instead appeared to be used solely to depict
Dr. Zack in a terrible light. Additionally, the allegations in the administrative complaint fault Dr.
Zack for failing “to attempt to use more conservative, less expensive procedures prior to this
invasive procedure.” Choosing a more conservative and less invasive procedure was exactly
what Dr. Zack claimed was required in the present case. The document did not impeach him; if
anything, it underscored the point he was making. However, it was utilized to destroy his
credibility based on irrelevant matters, and to the extent it was in any way relevant, it was unduly
prejudicial.

     2. DEFENDANT IMPROPERLY PROFFERED EXTRINSIC EVIDENCE TO IMPEACH

         With respect to the administrative complaint and consent judgment, defense counsel was
not only permitted to cross-examine Dr. Zack with the documents, but the trial court allowed him
to admit the documents as evidence at trial. During his de bene esse deposition, Dr. Zack
testified that he had “never been accused by a patient of ever performing an unnecessary
procedure . . . .” In response, defense counsel “move[d] for the admission of” the consent
judgment and administrative complaint. At trial, defense counsel argued that the documents
were admissible to impeach Dr. Zack’s testimony that he had not faced such accusations by a
patient.14 In other words, because defense counsel believed that Dr. Zack denied facing the
accusations, defense counsel introduced the documents themselves to impeach that denial.

        As defendant impliedly—and fairly—concedes in his brief on appeal, the introduction of
the documents was improper under MRE 608(b). See Wischmeyer, 449 Mich at 478. Indeed,
MRE 608(b) contains an express prohibition on proving the specific instances of the conduct of a
witness by extrinsic evidence, stating that specific instances of conduct “may not be proved by
extrinsic evidence” but may be inquired into on cross-examination. Here, however, defendant
sought to prove what he characterized as an untruthful statement about a collateral matter by
introducing documents that he believed proved the opposite of that which was asserted by the
witness. Counsel should not have been permitted to introduce these documents as exhibits at
trial. See MRE 608(b); Wischmeyer, 449 Mich at 478. In allowing the admission of the
documents, the trial court erred.




14
   There was considerable discussion at trial about whether the complaint and consent judgment
were brought about following accusations by patients complaining about the necessity of certain
procedures, or whether an insurance company instigated the administrative proceedings by
questioning the necessity of the procedures. During his de bene esse deposition, Dr. Zack
testified that concerns voiced by an insurance company gave rise to the administrative complaint.
There was no testimony to support defense counsel’s conclusion that patients had brought about
the complaint, and our review of the administrative complaint and consent judgment lend no
support to defendant’s conclusion. As we indicated in note 10 above, our review of the record
reveals that Dr. Zack’s statement that he had “never been accused by a patient” was not even
impeached by the administrative complaint and consent judgment; those documents were, from
the record presented, not relevant to that statement.


                                                -12-
                                  3. REVERSAL IS REQUIRED

        We conclude that these errors require reversal and a new trial is warranted because the
improper impeachment of Dr. Zack was particularly damaging to plaintiff’s case. Dr. Zack was
plaintiff’s only expert witness, and this case essentially came down to a credibility contest
between the parties’ experts. Plaintiff’s theories as to why defendant breached the standard of
care hinged on the jury believing Dr. Zack’s testimony over defendant’s expert witnesses;
consequently, Dr. Zack’s credibility was crucial to plaintiff’s case. While, as defendant points
out in his brief on appeal, Dr. Zack had been subjected to impeachment on other issues by
appropriate means, we do not agree that he had already been so impeached as to completely
undermine his credibility. The improper impeachment of Dr. Zack undoubtedly—and unfairly—
undermined plaintiff’s only expert in this “battle of the experts” and significantly harmed her
case.

          Contributing to our decision to reverse was defendant’s ubiquitous use of the improper
and irrelevant impeachment evidence at trial, starting with opening statement and concluding
with his use of the evidence during closing arguments. After blaming Dr. Zack for the increased
cost of medical care in this country during his closing argument—a move that was no doubt
aimed at inciting the jury—defense counsel read for the jury the contents of the administrative
complaint, which detailed the procedures—none of which are pertinent to this case.15 And in
discussing potential bias or interest harbored by witnesses, defense counsel returned to Dr. Zack
and his unsupported assertion that Dr. Zack lied during his testimony, stating, that “a person who
will deceive you on minor things . . . will deceive a person on large things too. And [Dr. Zack]
did. . . .” In short, defendant continuously brought this irrelevant and improper impeachment
evidence before the jury and used it to unfairly taint plaintiff’s only expert witness. Given the
damage done to Dr. Zack’s credibility and defendant’s repeated references to this improper line
of impeachment, taking it to an even higher level of character assassination by expressly blaming
Dr. Zack for “driv[ing] up” the cost of healthcare in America by engaging in expensive and
unnecessary procedures, we conclude that the errors affected a substantial right and that failure
to reverse would be inconsistent with substantial justice. See Craig, 471 Mich at 76. Thus, we
reverse the trial court’s judgment of no cause of action and remand this case for a new trial.

          B. QUALIFICATION OF DR. SCHUCHMAN AS A LIABILITY EXPERT

        Although our disposition of the first issue results in a new trial, the other issues raised by
plaintiff on appeal remain relevant with respect to the new trial, and thus, we will address them.
Plaintiff contends that Dr. Schuchman was not qualified to testify in this case because he was a
specialist in urogynecology and defendant was a general obstetrician/gynecologist. In particular,
plaintiff argues that Dr. Schuchman was not qualified to testify as an expert because he did not


15
  In his brief on appeal, defendant contends that any prejudice in this case was alleviated by the
fact that the jury never saw the administrative complaint. This argument ignores that the
complaint was, in violation of MRE 608(b), admitted at trial, and that defense counsel read the
details from the administrative complaint during closing argument.


                                                -13-
spend the majority of his professional practice in the field of general obstetrics and gynecology,
as is required by MCL 600.2169(1). Before trial, plaintiff moved in limine to exclude Dr.
Schuchman’s testimony on the grounds that he did not meet the specialty-matching requirement
of MCL 600.2169. Defendant argued that because board certification was not available in the
sub-specialty of urogynecology at the time of the alleged malpractice, Dr. Schuchman could not
be considered a “specialist” in urogynecology for the purpose of MCL 600.2169. The trial court
denied plaintiff’s motion, stating that Dr. Schuchman’s testimony that his practice was “50/50”
between urogynecology and general obstetrics gynecology made the question “close enough to
where it’s all going to go to credibility. . . .”

        We review the trial court’s ruling on this issue for an abuse of discretion. Kiefer v
Markley, 283 Mich App 555, 556; 769 NW2d 271 (2009). “An abuse of discretion occurs when
the decision results in an outcome falling outside the range of principled outcomes.” Id.

       “Whether an expert may provide standard of care testimony at trial is governed by MCL
600.2169.” Jones v Botsford Continuing Care Corp, 310 Mich App 192, 199; 871 NW2d 15
(2014). That statute provides, in pertinent 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.]

       The issue here is whether, “during the year immediately preceding the date of the
occurrence that is the basis for the claim or action,” defendant’s expert “devoted a majority of his


                                               -14-
professional time” to the “active clinical practice” of the same specialty in which defendant is a
specialist.

        In Woodard v Custer, 476 Mich 545, 561; 719 NW2d 842 (2006), the Michigan Supreme
Court noted that the term “specialty” is not defined in MCL 600.2169. Looking to both a general
purpose dictionary and a medical dictionary, the Court defined a medical specialty as “a
particular branch of medicine or surgery in which one can potentially become board certified.”
Id. See also Jones, 310 Mich App at 211. The pertinent time for examining the expert’s
specialty is the “time of the occurrence.” See MCL 600.2169(1)(a); Rock v Crocker, 308 Mich
App 155, 158; 863 NW2d 361 (2014), lv granted 497 Mich 1034 (2015).

        The definition of “specialty” set forth in Woodard defeats plaintiff’s assertion that
defendant’s expert was a specialist in urogynecology at the time of the alleged malpractice
because urogynecology was not a field of medicine in which one could become board certified in
2010. According to Dr. Schuchman’s deposition testimony, which plaintiff has not refuted, there
was no recognized board certification in urogynecology at the time of the alleged malpractice in
this case. Instead, according to Dr. Schuchman, 2013 was the first year for “board exams” in this
area of medicine.16 Although Woodard accounts for the possibility that a doctor can be a
specialist in a specialty in which she is not board certified, a specialty, by definition, is a branch
of medicine in which a doctor could potentially become board certified. See Woodard, 476 Mich
at 561 (“[A] ‘specialty’ is a particular branch of medicine or surgery in which one can potentially
become board certified”) (emphasis added). See also Robins v Garg (On Remand), 276 Mich
App 351, 359; 741 NW2d 49 (2007) (holding that where the practice area in question was not an
area where a doctor could potentially become board certified, a doctor could not be a “specialist”
in that area). Dr. Schuchman could not become board certified in urogynecology at the relevant
time because a board certification in urogynecology did not exist at the time of the injury that is
the basis of the claim. In other words, the specialty or subspecialty of urogynecology simply did
not exist for the purpose of MCL 600.2169 prior to 2013.

        Both defendant and defendant’s expert were board certified in general obstetrics and
gynecology at the time of the occurrence. Dr. Schuchman indicated that urogynecology is a
“subspecialty of gynecology.”17 He testified that after 2001 his practice consisted of 50%
urogynecology and 50% “general GYN.” Because urogynecology was not a recognized
specialty at the time of the alleged malpractice, and in light of Woodard, we conclude that all of
Dr. Schuchman’s time was devoted to the only recognized specialty available, i.e., general
obstetrics and gynecology, and that he devoted the requisite “majority” of his time to this


16
  We note that Dr. Schuchman’s characterization comports with information obtained from the
American Urogynelogic Society’s website. See American Urogynelogic Society, A Timeline of
the Development of Urogynecology and Female Pelvic Medicine and Reconstructive Surgery in
the US <www.augs.org/p/cm/ld/fid=10> (accessed December 17, 2015).
17
  To the extent this could be viewed as a pronouncement that urogynecology was a specialty or
subspecialty of general obstetrics and gynecology, we note that Woodard controls the legal
definition of “specialty” for purposes of MCL 600.2169, not any statement by the witness.


                                                -15-
practice in the year immediately preceding the date of the alleged malpractice to the active
clinical practice of that specialty. See MCL 600.2169(1)(b)(i). Accordingly, we find no abuse
of discretion in the trial court’s determination that Dr. Schuchman was qualified to testify as an
expert witness under MCL 600.2169.

             B. USE OF MEDICAL LITERATURE ON CROSS-EXAMINATION

        Plaintiff also argues that the trial court erred in denying her motion to strike testimony
referring to certain medical publications that were used on cross-examination. The trial court’s
decision whether to admit learned-treatise evidence for the purpose of cross-examination under
MRE 707 is reviewed for an abuse of discretion. See Lockridge v Oakwood Hosp, 285 Mich
App 678, 689; 777 NW2d 511 (2009).

        At trial, plaintiff moved to strike testimony referring to certain medical publications
including a journal article authored by Michael S. Baggish, M.D., the ninth edition of Te Linde’s
Operative Gynecology, and certain ACOG (American College of Obstetrics and Gynecology)
standards. Defense counsel used the publications to cross-examine Dr. Zack. Plaintiff argued
that defendant could not use the publications on cross-examination because he failed to establish
that they were “authoritative” and that testimony referring to them should therefore be stricken
under MRE 707. In this regard, plaintiff noted that Dr. Zack described the above materials as
“reasonably reliable,” “reasonably reliable reference material,” and “generally reliable,” but he
did not believe that any of the materials were “authoritative.” Defendant argued that MRE 707
only requires that publications used to cross-examine an expert witness be “reliable authority”—
not authoritative. The trial court agreed with defendant and denied plaintiff’s motion to strike
the challenged testimony.

       MRE 707 states:

               To the extent called to the attention of an expert witness upon cross-
       examination, statements contained in published treatises, periodicals, or
       pamphlets on a subject of history, medicine, or other science or art, established as
       a reliable authority by the testimony or admission of the witness or by other
       expert testimony or by judicial notice, are admissible for impeachment purposes
       only. If admitted, the statements may be read into evidence but may not be
       received as exhibits.

       In McCarty v Sisters of Mercy Health Corp, 176 Mich App 593, 600-601; 440 NW2d 417
(1989), the Court stated:

               Under MRE 707, information published in a medical periodical which is
       established as being reliable authority by the testimony or admission of an expert
       witness may be used for impeachment purposes during the cross-examination of
       that expert witness. Dr. Brandt himself admitted that the Obstetrical and
       Gynecological Survey is “an excellent review journal,” “as close to a bible as
       obstetricians have today,” and “as reliable as anything we have in our literature.”
       Nevertheless, he opined that the journal was not “authoritative” because
       everything in it could not always be considered “absolute truth.” Medical or any

                                              -16-
       other authority, however, need not, and, indeed, cannot, always provide the
       absolute truth. Rather, as included in the definition of the word “authority” in The
       American Heritage Dictionary of the English Language (1973), an authority is
       “[a]n accepted source of expert information or advice, as a book or person,” or as
       in Webster’s Third New International Dictionary (1961), “one who is cited or
       appealed to as an expert whose opinion deserves acceptance.” History, including
       the history of legal precedents, is replete with examples of the observation that,
       while truth is always authoritative, authority is not always true. Although
       authority, as the most reasoned and considered attempt at formulating and
       enunciating truth, may at times overshadow its object, it is nevertheless
       acknowledged to be a valuable source of reliable information. Dr. Brandt’s praise
       for the Obstetrical and Gynecological Survey and his assessment that that
       periodical is “as reliable as anything we have in our literature” undermine his
       assertion that that periodical is not authoritative. Thus, the trial court abused its
       discretion in precluding plaintiff’s counsel from using it for impeachment
       purposes under MRE 707 on the ground that its authoritative status was not
       admitted by the expert witness.

        Based on McCarty, and the plain language of MRE 707, we find no merit in plaintiff’s
argument. MRE 707 requires only that the text used for cross-examination of an expert be
“reliable authority.” Here, Dr. Zack’s descriptions of the materials at issue as “reasonably
reliable” and “generally reliable” satisfied that requirement.18

       We reverse and remand for a new trial. We do not retain jurisdiction.



                                                             /s/ Patrick M. Meter
                                                             /s/ Stephen L. Borrello
                                                             /s/ Jane M. Beckering




18
   Plaintiff makes a very cursory argument that defendant used learned treatises improperly.
Because the argument is so brief, and because we find other grounds for reversal, we do not
consider it in depth. We nevertheless note that our review of the record revealed instances where
defense counsel used treatises as direct evidence of the standard of care, which violates the
express parameters of MRE 707. MRE 707 allows statements contained in learned treatises to be
used “for impeachment purposes only.”


                                               -17-
