Order                                                                     Michigan Supreme Court
                                                                                Lansing, Michigan

  March 21, 2012                                                                  Robert P. Young, Jr.,
                                                                                            Chief Justice

  141727 (89)                                                                     Michael F. Cavanagh
                                                                                        Marilyn Kelly
                                                                                  Stephen J. Markman
                                                                                  Diane M. Hathaway
                                                                                      Mary Beth Kelly
  ESTATE OF DANIEL D. JILEK, by JOY                                                   Brian K. Zahra,
  A. JILEK, Personal Representative,                                                             Justices
              Plaintiff-Appellee,
  v                                                     SC: 141727
                                                        COA: 289488
                                                        Washtenaw CC: 05-000268-NH
  CARLIN C. STOCKSON, M.D., and EPMG
  OF MICHIGAN,
             Defendants-Appellants,
  and
  MAPLE URGENT CARE, d/b/a MAPLE
  HEALTH BUILDING, TRINITY HEALTH-
  MICHIGAN, CATHERINE MCAULEY
  HEALTH CENTER, IRWIN M. LUTWIN,
  CARPENTER HEALTH CARE, d/b/a
  CARPENTER HEALTH CENTER, and
  ROBERT E. ANDERSON,
            Defendants.

  _________________________________________/

         On order of the Court, the motion for reconsideration of this Court’s December 21,
  2011 order is considered, and it is DENIED, because it does not appear that the order was
  entered erroneously.

        MARKMAN, J. (concurring).

         Plaintiff here moves for reconsideration of this medical malpractice case. He
  professes confusion about our order, while also professing that our order will “create
  enormous confusion for lawyers and judges handling [medical malpractice] cases.” I
  concur in our denial of plaintiff’s motion because, in my judgment, this Court has
  correctly decided both issues presented.

        First, we reviewed de novo the appropriate standard of care. We held that “the
  appropriate standard of care was ‘family practice’ because the defendant-physician is
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board-certified solely in family medicine” and that “the trial court properly allowed the
jury to consider that standard of care in light of the facilities available[,] . . . an urgent
care center . . . .” Jilek v Stockson, 490 Mich 961 (2011). This conclusion was the result
of the following application of the law:

       (1) As we stated in Locke v Pachtman, 446 Mich 216, 222 (1994):

               Proof of a medical malpractice claim requires the demonstration of
       the following four factors: (1) the applicable standard of care, (2) breach of
       that standard of care by the defendant, (3) injury, and (4) proximate
       causation between the alleged breach and the injury. MCL 600.2912a . . . .
       (2) As our citation in Locke indicates, MCL 600.2912a establishes the basis for
determining the applicable “standard of care” in medical malpractice cases. It provides,
in relevant part:

               (1) . . . [I]n an action alleging malpractice, the plaintiff has the
       burden of proving that in light of the state of the art existing at the time of
       the alleged malpractice:
                                             * * *
               (b) The defendant, if a specialist, failed to provide the recognized
       standard of practice or care within that specialty as reasonably applied in
       light of the facilities available in the community or other facilities
       reasonably available under the circumstances, and as a proximate result of
       the defendant failing to provide that standard, the plaintiff suffered an
       injury.
       (3) In Woodard v Custer, 476 Mich 545, 561 (2006), we then defined a
“specialist” as “‘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.’” (Citation omitted.)

       (4) Defendant here is board-certified in family medicine. Thus, she is properly
characterized as a “specialist” in family medicine.

       (5) Therefore, pursuant to MCL 600.2912a(1)(b), the applicable standard of care is
“that specialty as reasonably applied in light of the facilities available . . . .”

       (6) In this case, “that specialty” was family medicine, and the “facilities available”
consisted of an urgent care center. Accordingly, “the appropriate standard of care was
‘family practice’ because the defendant-physician is board-certified solely in family
medicine” and “the trial court properly allowed the jury to consider that standard of care
in light of the facilities available [to] . . . an urgent care center . . . .” Jilek, 490 Mich at
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961.

       (7) Contrary to the holding of the Court of Appeals, and as I believe is clear from
Woodard, the “one-most-relevant-specialty” test is only applicable if the defendant has
more than one specialty. Woodard, 476 Mich at 590 (MARKMAN, J., concurring). Here,
defendant has only one specialty, family medicine. Pursuant to MCL 600.2912a(1)(b),
that specialty determines defendant’s standard of care. Thus, although defendant was
practicing family medicine at the time of the alleged malpractice, this is irrelevant
because defendant has only one specialty, and the “one-most-relevant-specialty” test is
inapplicable. To the extent that Reeves v Carson City Hosp (On Remand), 274 Mich App
622 (2007), and Gonzalez v St John Hosp & Med Ctr (On Reconsideration), 275 Mich
App 290 (2007), are inconsistent with this conclusion, they were, in my judgment,
necessarily overruled by this Court’s previous order.

        Second, we reviewed for abuse of discretion whether the trial court properly
excluded evidence of the urgent care center’s internal policies. We adopted the Court of
Appeals dissent’s analysis, which provided two independent bases for its conclusion that
the trial court did not abuse its discretion in this regard:

        (1) Pursuant to MCR 2.613(A), “[a]n error in the admission or exclusion of
evidence . . . is not ground for granting a new trial [or] for setting aside a verdict . . .
unless refusal to take this action appears to the court inconsistent with substantial
justice.” As the Court of Appeals dissent explained, the “majority [made] no attempt to
explain how the errors it discerns from this record resulted in a jury verdict that was
‘inconsistent with substantial justice.’” Jilek v Stockson, 289 Mich App 291, 317 (2010)
(BANDSTRA, J., dissenting). For the reasons provided in our order and in Judge
BANDSTRA’s dissent, I do not believe that the admission of the exhibits would have made
any significant difference at trial. Therefore, I cannot conclude that the result was
“inconsistent with substantial justice.”

        (2) Gallagher v Detroit-Macomb Hosp, 171 Mich App 761, 765-766 (1988);
Buczkowski v McKay, 441 Mich 96, 99 n 1 (1992); and Zdrojewski v Murphy, 254 Mich
App 50, 62 (2002), all indicate that it is contrary to public policy to impose “a legal duty
on a [defendant] on the basis of its internal policies . . . .” Buczkowski, 441 Mich at 99 n
1. Each of these cases was decided after the adoption of the Michigan Rules of Evidence,
and thus their holdings were not preempted by the rules. In my judgment, the admission
of the exhibits would have been contrary to established law, and thus I do not find that
the trial court abused its discretion in excluding them.

       CAVANAGH, J. (dissenting).

       I would grant reconsideration for the reasons stated in my dissenting statement in
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this case. I also agree with plaintiff that the majority order muddles the law and is
inconsistent with Woodard v Custer, 476 Mich 545 (2006).

      MARILYN KELLY and HATHAWAY, JJ., would grant reconsideration.




                        I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                  foregoing is a true and complete copy of the order entered at the direction of the Court.
                        March 21, 2012                      _________________________________________
       t0314                                                                Clerk
