                           STATE OF MICHIGAN

                            COURT OF APPEALS



MILDRED JONES, Personal Representative of the                        FOR PUBLICATION
ESTATE OF AMOS JONES,                                                April 7, 2015

               Plaintiff-Appellant/Cross-Appellee,

v                                                                    No. 317573
                                                                     Oakland Circuit Court
BOTSFORD CONTINUING CARE                                             LC No. 2012-130023-NH
CORPORATION,

               Defendant-Appellee/Cross-
               Appellant,
and

DR. THOMAS SELZNICK and LIVONIA
FAMILY PHYSICIANS, PC,

               Defendants-Appellees.


Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ.

DONOFRIO, P.J. (concurring in part and dissenting in part).

        I concur with the result reached by the majority with respect to the reversal of the grant of
summary disposition on plaintiff’s nursing malpractice claim. But because plaintiff’s attorney
could not have held a reasonable belief that his expert matched the necessary qualifications to
render testimony on the standard of care with respect to defendant Dr. Thomas Selznick, I would
affirm the grant of summary disposition on the physician malpractice claims.

        This Court reviews a trial court’s decision on a motion for summary disposition de novo.
Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). A motion
under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Weisman v US Blades,
Inc, 217 Mich App 565, 566; 552 NW2d 484 (1996). When deciding a motion for summary
disposition under this subrule, a court must consider the pleadings, affidavits, depositions,
admissions, and other documentary evidence then filed in the action or submitted by the parties
in a light most favorable to the nonmoving party. MCR 2.116(G)(5); Wilson v Alpena Co Rd
Comm’n, 474 Mich 161, 166; 713 NW2d 717 (2006). The motion is properly granted if the
evidence fails to establish a genuine issue regarding any material fact and the moving party is


                                                -1-
entitled to judgment as a matter of law. Michalski v Bar-Leav, 463 Mich 723, 730; 625 NW2d
754 (2001).

        Additionally, questions of statutory interpretation and court rule interpretation also are
reviewed de novo. Ligons v Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011). Further,
whether a plaintiff’s affidavit of merit complied with the requirements of MCL 600.2912d is
reviewed de novo as a question of law. Lucas v Awaad, 299 Mich App 345, 377; 830 NW2d 141
(2013).

                               I. NURSING MALPRACTICE CLAIM

        I concur with the majority that the trial court erred in granting summary disposition with
respect to the nursing malpractice claim. But because this issue can be decided solely on the
basis of defendant Botsford Continuing Care (BCC) not supporting its motion for summary
disposition with documentary evidence, I do not join in the majority’s discussion related to
whether plaintiff’s counsel held a reasonable belief that an RN can provide testimony on the
standard of care for an LPN.

       When moving for summary disposition under MCR 2.116(C)(10), “ ‘[t]he moving party
must support its position with affidavits, depositions, admissions, or other documentary
evidence.’ ” Karaus v Bank of New York Mellon, 300 Mich App 9, 17; 831 NW2d 897 (2012),
quoting St Clair Med, PC v Borgiel, 270 Mich App 260, 264; 715 NW2d 914 (2006). As
described by the majority, BCC’s sole piece of evidence on who reinserted the PEG tube was in
the form of a largely indecipherable nursing log. The “LPN” notation in the nursing notes,
which BCC relies on, was not written where it states that the PEG tube was replaced. Instead,
the person who signed the log after the “PEG tube replaced” notation, in fact, did not have
“LPN” along with the signature.1 Looking at these notes in a light most favorable to the
nonmoving party, MCR 2.116(G)(5); Wilson, 474 Mich at 166, there is a question of fact
regarding whether an RN or an LPN reinserted the PEG tube, and summary disposition was not
appropriate.

       Moreover, with the sheer lack of information available to plaintiff’s counsel at the time,
one cannot conclude that counsel acted unreasonably in thinking that an RN was the one who
replaced the PEG tube. This is true especially when considering that the person who signed the
notation, “PEG tube replaced,” was not the same person who signed earlier with the “LPN”
designation.

        Consequently, the trial court erred in granting BCC’s motion on this claim. Because the
issue is resolved on the two bases I describe, I do not join in the discussion that the majority
engages in related to how the plaintiff’s attorney’s belief that his legal conclusion that an RN
may offer testimony on the standard of care for an LPN was reasonable. See Dessart v Burak,
252 Mich App 490, 496 n 5; 652 NW2d 669 (2002) (stating that obiter dictum is a judicial
comment that is not necessary to the decision and is not precedential).


1
    Plus, the signature does not resemble the signature earlier where the “LPN” notation is located.


                                                  -2-
                             II. PHYSICIAN MALPRACTICE CLAIMS

        Because I do not believe that plaintiff’s attorney’s belief was reasonable with respect to
Dr. Gregory A. Compton possessing the relevant board certifications, I respectfully disagree with
the majority’s holding with respect to the sufficiency of that affidavit. Accordingly, I would
affirm the trial court’s grant of summary disposition on the physician malpractice claims.

       “MCL 600.2912d(1) provides that the plaintiff in a medical malpractice action must file
with the complaint ‘an affidavit of merit signed by a health professional who the plaintiff’s
attorney reasonably believes meets the requirements of an expert witness under [MCL
600.2169.’” Id. MCL 600.2169(1)(a), in turn, provides the following:

          (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.

        Our Supreme Court’s holdings in Halloran v Bhan, 470 Mich 572; 683 NW2d 129
(2004), and Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006), require an expert to
possess the same one relevant specialty as possessed by the defendant. In Halloran, the facts
were very similar to the facts in the present case. In Halloran, the question was whether a
physician who was board certified in anesthesiology and had a certificate of added qualification
in critical care medicine could testify against defendant, who was board certified in internal
medicine and had a certificate of added qualification in critical care medicine. Hence, at first
blush, as in our case, the two physicians in Halloran shared subspecialties but not specialties.2
The Supreme Court, however, held that the proposed witness could not testify against the
defendant physician. Halloran, 470 Mich at 578. The Court reasoned that because the
physicians did not share the same board certification, the expert could not testify at trial. Id. at
579.

       Two years later, the Supreme Court decided Woodard. In Woodard, the Supreme Court
held that plaintiff’s proposed witness, who was board certified in pediatrics, could not testify on
the standard of care against the defendant, who was board certified in pediatrics but also
possessed a certificate of special qualification in pediatric critical care medicine. Woodard, 476
Mich at 577. The Court explained that “a subspecialty is a specialty within the meaning of
§ 2169(1)(a).” Id. at 566 n 12. This is the first time this concept was enunciated because in


2
    As discussed, infra, this is not the case, however.


                                                   -3-
Halloran, 470 Mich at 575, the Court apparently accepted the parties’ position that a
subspecialty certification did not qualify as a “board certification” under the statute. Thus,
contrary to Halloran, “if a defendant physician has received a certificate of special
qualifications, the plaintiff’s expert witness must have obtained the same certificate of special
qualifications in order to be qualified to testify under § 2169(1)(a).” Woodard, 476 Mich at 565
(emphasis added).

        In ruling that Dr. Compton and Dr. Selznick were “both board certified in the one most
relevant specialty, i.e., geriatric medicine,” the majority is making an error. Dr. Compton was
board certified in internal medicine and possessed a certificate of added qualification of
geriatrics. Dr. Selznick was board certified in family medicine and had a certificate of added
qualification in geriatrics. But just because their board certifications in their subspecialties
shared the common word of “geriatrics,” it does not mean that those certifications are
equivalent.3

        As the Supreme Court in Woodard explained, “[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. A subspecialty, although a more
particularized specialty, is nevertheless a specialty.” Id. at 562 (emphasis added). Thus,
because subspecialties “fall[] under” a particular specialty or are “within the hierarchy” of a
particular specialty, it is clear that subspecialties cannot be divorced from their parent specialties.
In other words, it is technically inaccurate to simply state that a doctor possesses a subspecialty
board certification in “geriatrics.” Instead, that doctor possesses a subspecialty board
certification in “geriatrics in the field of family medicine.” Hence, Dr. Compton’s board
certification of “geriatrics in the field of internal medicine” is not the same as Dr. Selznick’s
board certification of “geriatrics in the field of family medicine.”4 As a result, under MCL



3
  The majority claims that “Dr. Selznick now asserts that his only specialty is in family medicine
and that he is not a specialist in geriatric medicine.” The basis for this claim is unknown because
Dr. Selznick clearly states in his brief on appeal, as he does on his web page, that he is board
certified in family medicine “with an added qualification in geriatrics.” Likewise, Dr. Selznick
never asserted that his CAQ in geriatrics was not the equivalent of a board certification. Indeed,
he admits that the CAQ was issued by the American Osteopathic Board of Family Medicine, i.e.,
it was board certified.
4
  If the majority’s view were correct, then, regardless of how dissimilar the parent specialties
were, a doctor could testify against a defendant as long as their subspecialties shared the same
name or label. Hypothetically speaking, if the American Board of Dermatology created a
subspecialty of “Geriatrics” (it does not currently exist), then a dermatologist who was certified
in that subspecialty could testify against defendant because the subspecialties are the “same.” I
do not believe that is what the statute permits. Although the discrepancy in the instant case
(family medicine vs. internal medicine) is not as stark as the difference in the dermatologist
example, the difference is still fatal because the statute requires no difference. See Woodard,
476 Mich at 562.


                                                 -4-
600.2169(1)(a), Dr. Compton was not qualified to testify to the standard of care at trial against
Dr. Selznick. See id. at 565.

        However, that is not the end of the analysis because MCL 600.2912d(1) only requires
that a plaintiff’s attorney have a “reasonable belief” that an expert who writes an affidavit of
merit meets the requirements for an expert witness. Grossman v Brown, 470 Mich 593, 598-599;
685 NW2d 198 (2004). This is a lesser standard than is required to have that expert testify at
trial. Id. at 599. In determining the reasonableness of plaintiff’s attorney’s belief, a court must
look to the resources available to the attorney at the time the affidavit of merit was prepared. See
id. at 599-600.

        In his response to defendant’s motion for summary disposition, plaintiff counsel argued
that his belief was reasonable based on a review of Dr. Selznick’s employer’s website. As the
majority notes, the preamble or introductory text on the web page states in general terms that Dr.
Selznick was “Board Certified in Family Practice, Geriatrics and Medical Directorship of Long
Term Care Facilities.” However, lower on that same web page, it provides a heading in bold
type, called “Board Certifications,” and under that heading is listed the specific board
certifications Dr. Selznick possessed and the years he acquired them. Relevant to this
discussion, it lists “AOBFP: 1991” and “AOBFP – CAQ Geriatrics: 1992.” Thus, while the
general text on the web page did not make it clear that the geriatrics certification was actually a
subspecialty of family medicine, the “CAQ” notation, which stands for “certificates of added
qualifications,” makes certain that this certification was in relation to a narrower subspecialty.5
Woodard, 476 Mich at 562. Thus, with AOBFP standing for the American Osteopathic Board of
Family Physicians, it is clear that Dr. Selznick’s board certification was in family medicine and
that he also possessed a certification in the subspecialty of geriatrics in the field of family
medicine. Thus, I would conclude that looking at the website as a whole, it is apparent that
plaintiff’s attorney needed an expert who was board certified in geriatrics in the field of family
medicine. As a result, I do not believe that plaintiff’s counsel held a reasonable belief that Dr.
Compton, who was known to be board certified in geriatrics the field of internal medicine,
matched Dr. Selznick’s relevant board certification of geriatrics in the field of family medicine.
Therefore, although the trial court never addressed the “reasonable belief” aspect of this issue, I
would conclude that the trial court’s ruling was correct, albeit with an incomplete analysis. See
Gleason v Dep’t of Transp, 256 Mich App 1, 3; 662 NW2d 822 (2003) (“A trial court’s ruling
may be upheld on appeal where the right result issued, albeit for the wrong reason.)”.

       To the extent that plaintiff and the majority rely on the fact that defendants similarly
provided the wrong expert when they later supplied their affidavit of meritorious defense, this
fact is irrelevant. Defense counsel’s later unreasonableness cannot transform plaintiff’s
counsel’s prior unreasonableness into being reasonable. In more familiar terms, “Two wrongs
do not make a right.” And more importantly, plaintiff’s counsel did not have access to




5
  At oral argument, plaintiff even conceded that a certificate of added qualification is
synonymous with a subspecialty.


                                                -5-
defendants’ affidavit of meritorious defense at the time the affidavit of merit was filed, so any
reliance on that later-issued affidavit is misplaced. See Grossman, 470 Mich at 599-600.6

                             III. AMENDMENT OF AFFIDAVITS

        Plaintiff also contends that, even if any affidavit of merit were defective, she should be
allowed to “amend” them by submitting new ones signed by the appropriately credentialed
professionals. The majority did not need to address this issue because it was moot given the
disposition of the case. However, because I would conclude that Dr. Compton’s affidavit of
merit was deficient, I will briefly address the issue.

       MCR 2.112(L)(2)(b) provides that “[a]n affidavit of merit . . . may be amended in
accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.” MCR
2.118(A)(2) provides that “a party may amend a pleading only by leave of the court or by written
consent of the adverse party.” (Emphasis added.) While an affidavit of merit is not a “pleading”
under MCR 2.110(A), MCR 2.118(D) does allow an affidavit of merit to be amended and that
such an amendment relates back to the date of the original filing of the affidavit.

        Plaintiff alleges that the trial court “dropped the ball” by failing to even address this
issue. However, any failure by the trial court to address any amendments was reasonable
because it appears that plaintiff never took the trial court up on its offer to pursue such a remedy.
A review of the lower court record reveals no motions by plaintiff to amend the affidavit. At
best, in her response to defendants’ motions for summary disposition, plaintiff cited the law that
allows affidavits of merit to be amended, but she never actually moved the trial court to make
such an amendment. At the hearing on defendants’ motions for summary disposition, the
following exchange illustrates how the trial court allowed plaintiff to take any further action she
deemed prudent:

              THE COURT: Okay. So the Court is going to grant defendant’s motion
       for Summary Disposition pursuant to [MCR 2.116(C)(10)] as to all claims against
       Defendant Selznick, Livonia Family Physicians, and Botsford Continuing Care
       Corporation.




6
  I also note that the majority’s reliance on the supposed lack of any responses to plaintiff’s
notice of intent is not persuasive. First, because the notice of intent and the responses are all
conducted before a complaint is filed, they are not filed in the lower court, and without any
affidavits on this topic, it is impossible to discern exactly what was sent and received. Second, to
the extent that the majority asserts that plaintiff received nothing in response to her notice of
intent, this is not entirely accurate. A letter was issued in direct response to the notice of intent
that stated that Dr. Selznick’s could not be liable because he “did not provide care to Mr. Jones.”
Even assuming arguendo that the response may not have met all of the statutory requirements
under MCL 600.2912b(7)(a)-(d), it was nonetheless a communication received in response to the
notice of intent.


                                                -6-
               The affidavit of merit was signed by a doctor who does not have the same
       general board certification as Doctor Selznick, which is contrary to statute. The
       affidavit of merit regarding the licensed practical nurse was signed by a registered
       nurse and is also inappropriate. Therefore, based upon the defective affidavits of
       merit, the motion is granted.

               I’m gonna decline to accept [defendants’] oral amendment to include
       [MCR 2.116(C)(7)] on this matter, so I’m not gonna grant you a final judgment.[7]
       [Plaintiff’s counsel] says he has further plans and I’m gonna allow him to pursue
       those.

                                                       ***

                 [Plaintiff’s Counsel]: So, I mean, do we – can we still amend then, do we
       still –

                 THE COURT: You’re the lawyer.

                 [Plaintiff’s Counsel]: Okay.

                 THE COURT: Okay.

                 [Plaintiff’s Counsel]: All right.

              THE COURT: You know. I’m not gonna tell you what you should or
       shouldn’t do and I don’t know the merits of what you have planned, but I’ve left it
       open for you to do so. [Emphasis added.]

Even after the trial court left the door “open” for plaintiff to take further action, no motion to
amend was ever filed with the court. All the record shows is that plaintiff moved for
reconsideration and after that motion was denied, she eventually filed a new complaint
(presumably with the proper affidavits attached). With the trial court never precluding plaintiff
from seeking an amendment to the affidavits in the original action, I perceive no error for this
Court to correct.

        Moreover, I openly question whether plaintiff’s current desire to substitute the prior
affidavits of merit with entirely new ones signed by different affiants qualifies as amending the
prior affidavits. “Amendment” is defined in relevant part as “a change made by correction,
addition, or deletion.” Random House Webster’s College Dictionary (2d ed). Here, there are no
“changes” being made to the prior affidavits, let alone any “corrections,” “additions,” or
“deletions.” Instead, plaintiff’s goal is to entirely replace the prior affidavits with new ones



7
  While the court intended to not issue a “final judgment,” this is precisely what it did when it
dismissed all the claims. MCR 7.202(6)(a)(i). It appears that the trial court really was
attempting to dismiss the claims without prejudice.


                                                     -7-
signed by new affiants. On the other hand, if an “amended” affidavit was signed by the same
affiant with only changes to what the affiant was averring, then it would properly be considered
an “amendment.” Thus, even if plaintiff had moved to amend, I do not believe that this type of
wholesale substitution would qualify as an “amendment” under the applicable court rules.

                                       IV. CONCLUSION

        Accordingly, I agree that the trial court erred in dismissing the nursing malpractice claim,
but I would affirm the trial court’s dismissal related to the physician malpractice claim because
plaintiff’s attorney did not possess a reasonable belief with respect to Dr. Compton’s affidavit.



                                                             /s/ Pat M. Donofrio




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