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by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the October 1999 issue of the Journal

Question: I read that the Michigan Supreme Court recently upheld the constitutionality of the Malpractice Expert Witness Statute. Would you please explain this decision and advise us what it really means for dentists.

Answer: The testimony of an expert witness as to the standard of practice and its violation is a condition precedent to pursuing a cause of action for malpractice. Until legislation was enacted in 1986, Section 702 of the Michigan Rules of Evidence was the only controlling law relative to the qualifications required of an expert witness. MRE 702 authorizes the trial judge to determine whether a proposed expert witness is qualified to testify as to the applicable standard of care and whether it was breached. This rule, authorizing a discretionary determination by the trial judge, more often than not led to a subjective decision that an expert was qualified to render an opinion to the jury based upon the bare assertion by the expert that he or she was so qualified.

In 1986, the Legislature enacted a statute that placed some limitations on the trial judge's discretion. The proposed expert was required to be licensed and a specialist in the same specialty or a related, relevant area of health care as the defendant's specialty. The proposed expert was also required to establish that he or she devoted a substantial portion of professional time to active clinical practice or instruction in an accredited professional school. In 1993, more restrictive legislation was enacted, which became effective April 1, 1994. This current law is discussed in more detail below.

On July 30, 1999, the Michigan Supreme Court decided companion cases of McDougall vs. Schanz and Sobran vs. McKendrick. In the combined opinion, the Supreme Court upheld the constitutionality of the 1986 Expert Witness Statute. The issue was whether or not the statute violated the separation of powers provision of the Michigan Constitution, which vests exclusive jurisdiction over court procedures with the judiciary.

The Supreme Court held that the court's constitutional rule-making authority extends only to matters of practice and procedure, not to the enactment of court rules that establish, abrogate, or modify the substantive law. The court held that a statutory rule of evidence violates the Michigan Constitution "only when no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified."

Since the statute reflects substantive policy considerations relating to malpractice actions, not the mere dispatch of judicial business, the court concluded that the statute is constitutional. The decision reversed prior Supreme Court decisions which focused on whether the statute conflicted with the court rule. If so, the court rule prevailed.

The majority first determined that a clear conflict exists. The Supreme Court then relied upon records of the debates of the drafters of the Michigan 1963 Constitution and the distinction drawn at the Constitutional Convention between substantive and procedural rules of evidence. In applying this substance/procedure analysis, the Supreme Court held that the statute is an enactment of substantive law in that it reflects policy considerations relating to malpractice actions. The Supreme Court expressly agreed with the Court of Appeals dissent in the McDougall case, written by Judge Taylor (now Supreme Court Justice Clifford Taylor), that the statute:

"reflects a careful legislative balancing of policy considerations about the importance of the medical profession to the people of Michigan, the economic viability of medical specialists, the social costs of 'defensive medicine,' the availability and affordability of medical care and health insurance, the allocation of risks, the costs of malpractice insurance, and manifold other factors, including, no doubt, political factors — all matters well beyond the competence of the judiciary to reevaluate as justiciable issues."

Although the 1986 legislation was at issue, the court specifically stated that the 1986 and 1993 versions of the Expert Witness Statute interact with MRE 702 in the same manner, so that "our decision applies with equal force to the 1993 version."

The extension of this decision to the more restrictive and current Expert Witness Statute is extremely significant. It will avoid further litigation and uncertainty as to the binding effect of the ruling on the current law.

The practical benefit of this decision to health care professionals cannot be understated. It means that the statute is the definitive law. It means that any expert witness testifying against health care professionals in a malpractice case must meet certain objective tests, in addition to licensure, which must be applied by the trial judge. If the defendant is a specialist, the expert must have specialized at the time of the occurrence in the same speciality. If the defendant is board-certified, the expert witness must also be board-certified in the same specialty. In addition, the expert must have devoted more than 50 percent of his or her professional time during the year immediately preceding the occurrence to the active clinical practice of that specialty and/or the instruction of that specialty in an accredited professional school. If the defendant is a general practitioner, the expert must have devoted more than 50 percent of his or her professional time during the year immediately preceding the date of the occurrence to the active clinical practice as a general practitioner and/or the instruction in an accredited professional school.

The Supreme Court ruling also maintains the viability of the Affidavit of Merit provision of the 1993 Malpractice Reform Legislation. This law mandates that the plaintiff file an affidavit of merit with the complaint, signed by a health care professional who meets the requirements of the Expert Witness Statute. Had the Expert Witness Statute been held unconstitutional, the Affidavit of Merit would have also fallen. The affidavit must certify that all records have been reviewed and must contain a statement as to the applicable standard of care, an opinion that the standard was breached, the actions that should have been taken or omitted to have complied with the standard, and the manner in which the breach was a proximate cause of the injury.

Justice Young wrote the decision and was joined by Chief Justice Weaver and Justices Brickley and Corrigan. Justice Taylor joined the opinion in the Sobran case only, and took no part in the McDougall decision for the reason that Justice Taylor, then a Court of Appeals Judge, wrote the dissent in the Court of Appeals McDougall decision. Justice Kavanaugh wrote the dissent and was joined by Justice Kelly.

This was the first Michigan Supreme Court Decision on the constitutionality of any of the state's malpractice reform legislation provisions. Although the constitutional issue focused on the Separation of Powers provision of the Michigan Constitution, rather than the due process and equal protection clauses of the state and federal Constitutions (which will be the focus of constitutional attacks on other sections of the legislation), this decision enhances the optimism that all sections will pass constitutional scrutiny. It can be said that no other decision ever rendered by the Michigan Supreme Court has a more direct benefit to health care professionals in Michigan.

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