Torts; malpractice; qualifications of expert witnesses for

medical malpractice action; amend requirements.

TORTS: Malpractice; TORTS: Civil procedure; OCCUPATIONS:

Health care professions; OCCUPATIONS: Physicians; HEALTH:

Other; CIVIL PROCEDURE: Evidence

A bill to amend 1961 PA 236, entitled

"Revised judicature act of 1961,"

by amending section 2169 (MCL 600.2169), as amended by 1993 PA

78.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

1 Sec. 2169. (1) In an action alleging medical malpractice,

2 a person AN INDIVIDUAL shall not give expert testimony on the

3 appropriate standard of practice or care unless the person

4 INDIVIDUAL is licensed as a health professional in this state or

5 another state and meets ALL OF the following criteria:

6 (a) If the party against whom or on whose behalf the testi-

7 mony is offered is a specialist, specializes at the time of the

8 occurrence that is the basis for the action AND AT THE TIME OF

9 THE TESTIMONY, THE EXPERT WITNESS MUST BE BOARD CERTIFIED in the

10 same specialty as the party against whom or on whose behalf the

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1 testimony is offered. However, if THIS REQUIREMENT APPLIES

2 REGARDLESS OF WHETHER the party against whom or on whose behalf

3 the testimony is offered is a specialist who is board certified.

4 , the expert witness must be a specialist who is board certified

5 in that specialty.

6 (b) Subject to subdivision (c), during the year immediately

7 preceding the date of the occurrence that is the basis for the

8 claim or action, THE EXPERT WITNESS devoted a majority of his or

9 her professional time to either or both of the following:

10 (i) The active clinical practice of the same health profes-

11 sion in which the party against whom or on whose behalf the tes-

12 timony is offered is licensed and, if that party is a specialist,

13 the active clinical practice of that specialty.

14 (ii) The instruction of students in an accredited health

15 professional school or accredited residency or clinical research

16 program in the same health profession in which the party against

17 whom or on whose behalf the testimony is offered is licensed and,

18 if that party is a specialist, an accredited health professional

19 school or accredited residency or clinical research program in

20 the same specialty.

21 (c) If the party against whom or on whose behalf the testi-

22 mony is offered is a general practitioner, the expert witness,

23 during the year immediately preceding the date of the occurrence

24 that is the basis for the claim or action, THE EXPERT WITNESS

25 devoted a majority of his or her professional time to either or

26 both of the following:

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1 (i) Active clinical practice as a general practitioner.

2 (ii) Instruction of students in an accredited health

3 professional school or accredited residency or clinical research

4 program in the same health profession in which the party against

5 whom or on whose behalf the testimony is offered is licensed.

6 (2) In determining the qualifications of an expert witness

7 in an action alleging medical malpractice, the court shall, at a

8 minimum, evaluate all of the following:

9 (a) The educational and professional training of the expert

10 witness.

11 (b) The area of specialization of the expert witness AND

12 WHETHER THE EXPERT WITNESS WAS BOARD CERTIFIED AT THE TIME OF THE

13 OCCURRENCE THAT IS THE BASIS FOR THE ACTION AND IS CURRENTLY

14 BOARD CERTIFIED.

15 (c) The length of time the expert witness has been engaged

16 in the active clinical practice or instruction of the health pro-

17 fession or the specialty.

18 (d) The relevancy of the expert witness's testimony.

19 (3) This section does not limit the power of the trial court

20 to disqualify an expert witness on grounds other than the quali-

21 fications set forth in this section.

22 (4) In an action alleging medical malpractice, an expert

23 witness shall not testify on a contingency fee basis. A person

24 who violates this subsection is guilty of a misdemeanor.

25 (5) In an action alleging medical malpractice, all of the

26 following limitations apply to discovery conducted by opposing

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1 counsel to determine whether or not an expert witness is

2 qualified:

3 (a) Tax returns of the expert witness are not discoverable.

4 (b) Family members of the expert witness shall not be

5 deposed concerning the amount of time the expert witness spends

6 engaged in the practice of his or her health profession.

7 (c) A personal diary or calendar belonging to the expert

8 witness is not discoverable. As used in this subdivision,

9 "personal diary or calendar" means a diary or calendar that does

10 not include listings or records of professional activities.

11 (6) AS USED IN THIS SECTION, "BOARD CERTIFIED" MEANS THAT

12 TERM AS DEFINED IN SECTION 2701 OF THE PUBLIC HEALTH CODE, 1978

13 PA 368, MCL 333.2701.

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