                          STATE OF MICHIGAN

                           COURT OF APPEALS



JASON TURKISH,                                                     UNPUBLISHED
                                                                   December 13, 2018
               Plaintiff-Appellant,

v                                                                  No. 339522
                                                                   Oakland Circuit Court
WILLIAM BEAUMONT HOSPITAL,                                         LC No. 2015-147273-NH

               Defendant-Appellee.


Before: O’BRIEN, P.J., and TUKEL and LETICA, JJ.

PER CURIAM.

       Plaintiff appeals by leave granted1 the trial court’s order denying his motion in limine to
preclude defendant’s expert witness from giving standard-of-care testimony in this medical
malpractice action. We affirm.

        On August 7, 2011, plaintiff fell and fractured his right knee. He went to defendant
hospital and was released with crutches and a knee immobilizer. He returned the following day
because of increased pain and was admitted under the care of Dr. Gregory Nowinski, M.D., an
orthopedic surgeon. Plaintiff was taking Coumadin because of a suspected right lower leg deep
vein thrombosis (DVT), commonly known as a blood clot. Dr. Nowinski discontinued plaintiff’s
Coumadin while he considered whether to perform surgery on plaintiff’s knee. Dr. Nowinski
chose not to perform surgery, and resumed plaintiff’s Coumadin 22 hours after it had been
discontinued. Plaintiff was thereafter diagnosed with DVT, and he filed this action alleging that
the 22-hour Coumadin “hold” caused the DVT.

       Plaintiff filed a motion in limine to preclude Dr. Laith Farjo, M.D., defendant’s
orthopedic expert, from offering standard-of-care testimony. Plaintiff argued that, according to


1
  Turkish v William Beaumont Hosp, unpublished order of the Court of Appeals, entered
September 20, 2017 (Docket No. 339522).

                                               -1-
Dr. Farjo’s testimony, he spent the majority of his professional time practicing sports medicine—
a subspecialty of general orthopedics—and therefore, Dr. Farjo was not qualified to offer
standard-of-care testimony pertaining to orthopedic surgery.

       In his deposition, Dr. Farjo testified that he is board-certified in orthopedic surgery and
fellowship trained in sports medicine. He completed his sports medicine fellowship in 1999 but
never became board certified. When questioned by plaintiff’s counsel, Dr. Farjo further testified:

               A. I have a full-time practice in orthopedic surgery. I take care of patients
       of all ages, from one to 101, but primarily sports medicine, which is usually
       ligamentous injuries of the shoulder and knee and then also the hip. I do deal
       with fractures as well.

              Q. I saw somewhere in the materials that I reviewed that about 70 percent
       of your practice is laparoscopic sports medicine surgeries and the balance would
       be more general open procedures?

               A. It’s probably even more so arthroscopic at this point.

               Q. Has that been the case for the past ten years or so?

               A. Yes.

                                                 * * *

               Q. Doctor, on direct examination you testified that the majority of your
       practice is sports medicine?

                A. Sports medicine encompasses a pretty wide variety of treatment. I
       said, I take care of people from 1 to 101. So, yes, sports medicine in that I take
       care of ligaments that are damaged and tendons that are torn, so I would say more
       than 50[%] is that.

               Q. And do you hold yourself out as a sports medicine specialist?

               A. I do.

               Q. And you [have] done that for a number of years?

               A. Yes.

              Q. You were doing that since receiving your board certification in
       orthopedics?

                                               -2-
             A. Yes, it’s common in orthopedics to have a specialty interest and so I do
       hold myself out to that.

              Q. And sports medicine is now a board-recognized subspecialty of
       orthopedics?

              A. Correct.

       When questioned by defense counsel, Dr. Farjo clarified that his practice included more
general orthopedic surgery. He testified as follows:

               Q. So back in the time frame at issue, August of 2011, did you devote the
       majority of your professional time to the active clinical practice as a board-
       certified orthopedic surgeon?

              A. Yes.

              Q. The same specialty as Dr. Nowinski?

              A. Yes.

              Q. And you were asked questions by plaintiff’s counsel at the beginning
       of your deposition about your fellowship that you had previously performed. You
       performed that fellowship from 1998 to 1999, a fellowship in sports medicine and
       arthroscopy at – in Virginia with Drs. Caspari J. Meyers, et al; is that right?

              A. Yes.

              Q. But your practice over the years has been as a board-certified
       orthopedic surgeon; is that right?

              A. Yes.

              Q. And, in fact, your CV indicates the various types of work that you
       perform which includes a great deal of arthroscopic; is that right?

              A. Yes.

                Q. And if surgery had actually been performed on [plaintiff] back in
       August of 2011 or even the subsequent surgery that was performed later that year,
       is that the type of surgery that you performed on many occasions?

              A. Yes.

                                              -3-
                                          * * *

       Q. Doctor, you’re not subspecialty certified in sports medicine, correct?

       A. Correct.

       Q. And you never have been, correct?

       A. Correct.

       Q. What you have is a special interest in sports medicine within the rubric
of a board-certified orthopedic surgeon; is that correct?

       A. Correct. I’d say probably a majority of orthopedic surgeons would say
they have an interest in sports medicine.

       Q. So plaintiff’s counsel is trying to suggest that you’re not really and
were not really practicing and devoting the majority of your professional time as a
board-certified orthopedic surgeon back in this time frame that would be relevant,
August 2010 to August 2011. Back in that time frame what type of patients were
you seeing, what type of practice did you have as a board-certified orthopedic
surgeon?

        A. So – well, I would see people with knee ligament injuries and shoulder
rotator cuff tears which is considered part of the purvey of general orthopedics as
well as sports medicine. I took care of 90-year-old ladies with a broken hip
surgically, people who had broken their ankles surgically, I did and I still do hand
surgery, so people with carpal tunnel syndrome, people with trigger fingers,
people with tendinitis. I take care of people with dislocated kneecaps which this
patient had, so it’s a pretty wide variety. . . .

        Q. And the statue [sic] in Michigan requires that the year immediately
preceding the treatment at issue that an expert be board-certified in actively
devoting the majority of his or her professional time to the same practice of
medicine as the defendant in this case or the doctor whose treatment is being
alleged, which would be Dr. Nowinski, is that something you did? Did you
devote the majority of your professional time to that same practice of board-
certified orthopedic surgery during that period of time?

                        [Objection by plaintiff’s counsel omitted]

        A. The answer to your question is absolutely. So, in orthopedic surgery,
we all take care of these problems. It’s –you know, I don’t have a – I don’t hold
myself out as only a sports specialist and I haven’t opted to take that special
                                        -4-
       certification exam. You have the option to take that exam. My understanding is
       even if you took the exam most people who do that still practice general
       orthopedic surgery.

               Q. And that’s what you do and have done since you become [sic] a board-
       certified orthopedic surgeon; is that right?

               A. Yes.

       Following oral argument during which the trial court took the matter under advisement,
the court entered a written order denying plaintiff’s motion. The order stated as follows:

                After reviewing the Briefs and Exhibits and having considered the merits
       and being fully advised in the premises, the Court finds that Dr. Farjo is qualified
       to testify as to the standard of care. Based upon the evidence submitted there is
       no valid basis under MCL 600.2169 to preclude him from offering the testimony
       because Dr. Farjo is a Board-certified Orthopedic Surgeon who has devoted the
       majority of his professional time to the active clinical practice as such.

        On appeal, plaintiff argues that the trial court abused its discretion in denying its motion
in limine to preclude Dr. Farjo from giving standard-of-care testimony. We disagree.

        This Court reviews a trial court’s decision on a motion in limine for an abuse of
discretion. Bellevue Ventures, Inc v Morang-Kelly Investment, Inc, 302 Mich App 59, 63; 836
NW2d 898 (2013). This Court also reviews a trial court’s ruling regarding the qualifications of a
proposed expert witness for an abuse of discretion. Woodard v Custer, 476 Mich 545, 557; 719
NW2d 842 (2006). “An abuse of discretion occurs when the decision results in an outcome
falling outside the principled range of outcomes.” Id. Questions of statutory interpretation are
reviewed de novo. Id. at 557.

         In a medical malpractice action, the plaintiff must prove: “(1) the applicable standard of
care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between
the alleged breach and the injury.” Cox v Hartman, 322 Mich App 292, 299; 911 NW2d 219
(2017). Generally, expert testimony is necessary to establish the applicable standard of care as
well as the defendant’s breach of that standard. Id. at 300. MCL 600.2169, which governs the
criteria for an expert witness in a medical malpractice action, provides, 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:



                                                -5-
               (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.

        In Woodard, 476 Mich at 560, the Michigan Supreme Court held that, under MCL
600.2169(1), “the plaintiff’s expert witness must match the one most relevant standard of
practice or care—the specialty engaged in by the defendant physician during the course of the
alleged malpractice, and, if the defendant physician is board-certified in that specialty, the
plaintiff’s expert must also be board-certified in that specialty.” The Court further held that “a
‘specialty’ is a particular branch of medicine or surgery in which one can potentially become
board-certified.” Id. at 561. Therefore, “if the defendant physician practices a particular branch
of medicine or surgery in which one can potentially become board-certified, the plaintiff’s expert
must practice or teach the same particular branch of medicine or surgery.” Id. at 561-562.
Moreover, “a ‘subspecialty’ is a particular branch of medicine or surgery in which one can
potentially become board-certified that falls under a specialty or within the hierarchy of that
specialty,” and is also considered a specialty. Id. at 562. The Court also stated that, under MCL
600.2169(1)(a), “the proposed expert witness must have the same board certification as the party
against whom or on whose behalf the testimony is offered.” Id. at 562-563 (citation and
quotation marks omitted). The Court held the following:

       in order to be qualified to testify under § 2169(1)(b), the plaintiff’s expert witness
       must have devoted a majority of his professional time during the year
       immediately preceding the date on which the alleged malpractice occurred to
       practicing or teaching the specialty that the defendant physician was practicing at
       the time of the alleged malpractice, i.e., the one most relevant specialty. [Id. at
       566.]

        In Hamilton v Kuligowski, the companion case to Woodard, the defendant physician was
board-certified in general internal medicine and was practicing general internal medicine at the
time of the alleged malpractice. Id. at 556. The proposed expert witness was also board-
certified in general internal medicine. Id. However, the proposed expert devoted a majority of
his professional time treating infectious diseases, a subspecialty of internal medicine, and
                                               -6-
explicitly testified that he is “not sure what the average internist sees day in and day out.” Id. at
578. Thus, the Court held that the proposed expert did not satisfy the practice requirement of
MCL 600.2169(1)(b) because the defendant physician specialized in general internal medicine
and was practicing general internal medicine at the time of the alleged malpractice, and the
proposed expert did not. Id. at 577-578. Rather, the proposed expert spent a majority of his
professional time treating infectious diseases and was unfamiliar with the day-to-day practice of
a general internist. Id.

       In this case, there is no dispute that Dr. Farjo satisfied the requirement of MCL
600.2169(1)(a). During the relevant period, Dr. Nowinski was a board-certified orthopedic
surgeon, and Dr. Farjo was also a board-certified orthopedic surgeon as well as fellowship
trained in sports medicine. At issue in this case is the practice requirement of MCL
600.2169(1)(b). Plaintiff contends that because Dr. Nowinski testified that he was practicing
general orthopedic surgery when he treated plaintiff and Dr. Farjo testified that he practiced the
subspecialty of sports medicine, Dr. Farjo was not qualified to give standard-of-care testimony
under MCL 600.2169(1).

       Orthopedic surgery is a “medical specialty concerned with the preservation, restoration,
and development of form and function of the musculoskeletal system, extremities, spine, and
associated structures by medical, surgical, and physical methods.” Stedman’s Medical
Dictionary (26th ed). Once a physician becomes board-certified in orthopedic surgery, he or she
may apply for additional subspecialty certifications from the American Board of Medical
Specialties, one of which is sports medicine. See American Board of Medical Specialties,
Specialty and Subspecialty Certificates https://www.abms.org/member-boards/specialty-
subspecialty-certificates/ (accessed November 5, 2018). The American Board of Medical
Specialties defines sports medicine as “[t]he surgical and medical care for all structures of the
musculoskeletal system directly affected by participation in sporting activity.” Id. It is
undisputed that Dr. Nowinski was practicing orthopedic surgery at the time of the alleged
malpractice. Thus, if Dr. Farjo devoted a majority of his professional time during the year
preceding the alleged malpractice to sports medicine, a subspecialty of orthopedic surgery, Dr.
Farjo did not satisfy the practice requirement under MCL 600.2169(1)(b). See Woodard, 476
Mich at 577-578.

       Based on the evidence before it, the trial court found that Dr. Farjo met the practice
requirement and was qualified to give standard-of-care testimony under MCL 600.2169(1)(b).
Several times throughout his deposition, Dr. Farjo testified that the majority of his practice was
dedicated to general orthopedic surgery. Early in the deposition, when asked if he “devote[d] the
majority of [his] professional time . . . to the active clinical practice as a board-certified
orthopedic surgeon . . . the same specialty as Dr. Nowinski,” Dr. Farjo unequivocally answered
“yes.” He also testified that he has performed the surgery at issue in this case several times and
was able to describe, in detail, the practice of an orthopedic surgeon. Accordingly, this case is


                                                -7-
unlike Hamilton, in which the proposed expert, who testified that he was “not sure what an
average internist sees,” was clearly not practicing internal medicine. Woodard, 476 Mich at 558.

         Plaintiff’s argument focuses almost entirely on Dr. Farjo’s testimony on direct-
examination where he stated he spent a majority of his time practicing sports medicine. Plaintiff
contends that Dr. Frajo’s subsequent testimony on cross-examination should not be considered
because it was just an effort by defense counsel to “rehabilitate Dr. Farjo and qualify him as an
expert.” However, Dr. Farjo’s testimony that he spent the majority of his practice in sports
medicine is not conclusive of what he was actually practicing during the relevant period,
particularly where he described sports medicine, both on direct and cross-examination, as
encompassing “a pretty wide variety of treatment” including treating “knee ligament injuries and
shoulder rotator cuff tears,” which as Dr. Farjo stated, “is considered part of the purvey of
general orthopedics as well as sports medicine.” While Dr. Farjo’s testimony regarding his
practice of sports medicine versus general orthopedic surgery seemed to be contradictory or
unclear at times, he sufficiently clarified his testimony at the end of his deposition when he
testified that he “absolutely” devoted a majority of his professional time to the practice of board-
certified orthopedic surgery during the relevant time period. He also explained that he did not
opt to take the special certification examination in sports medicine and that even with respect to
those persons who are certified in sports medicine, they still practice general orthopedic surgery.
Moreover, as the above definitions show, both sports medicine and orthopedic surgery deal with
problems related to the “musculoskeletal system.” Indeed, defense counsel’s questioning on
cross-examination could have been merely an attempt to clarify Dr. Farjo’s qualifications due to
the significant overlap of sports medicine and orthopedic surgery.

        In conclusion, the trial court had sufficient evidence before it to conclude that Dr. Farjo
practiced the same specialty as Dr. Nowinski—orthopedic surgery—and so its finding that Dr.
Farjo spent a majority of his professional time practicing in the specialty of orthopedic surgery in
the year preceding the alleged malpractice was within the range of reasonable and principled
outcomes. Woodard, 476 Mich at 560. 2 Accordingly, the trial court did not abuse its discretion


2
  The dissent is concerned that this case is analogous to Hamilton, namely because it would
conclude that Dr. Farjo “devoted a majority of his professional time to a subspeciality regardless
of any overlap” with the more general practice. While we understand the dissent’s concern, we
disagree that the evidence necessitates concluding that Dr. Farjo devoted a majority of his
professional time to sports medicine. To the contrary, Dr. Farjo’s testimony conflicted on that
point; he said that he spent a majority of his professional time practicing orthopedic surgery, and
contradicted himself by saying that he spent a majority of his time practicing sports medicine.
Both statements could not be true, and so the trial court had to credit one. It decided that that Dr.
Farjo spent the majority of his time practicing orthopedic surgery. This was a close question, as
Dr. Farjo’s testimony supported both that he did—and that he did not—spend a majority of his

                                                -8-
by finding that Dr. Farjo was qualified to give standard-of-care testimony under MCL
600.2169(1).

       Affirmed. Defendant, as the prevailing party, may tax costs pursuant to MCR 7.219.

                                                         /s/ Colleen A. O’Brien
                                                         /s/ Jonathan Tukel




professional time practicing orthopedic surgery. “A decision on a close evidentiary question
ordinarily cannot be an abuse of discretion.” See Morales v State Farm Mut Auto Ins Co, 279
Mich App 720, 729; 761 NW2d 454 (2008).

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