SB-1117, As Passed Senate, November 29, 2012

SENATE BILL No. 1117

May 3, 2012, Introduced by Senators MOOLENAAR, MEEKHOF and SMITH and referred to the Committee on Insurance.

     A bill to amend 1961 PA 236, entitled

"Revised judicature act of 1961,"

by amending sections 2169 and 2912 (MCL 600.2169 and 600.2912),

section 2169 as amended by 1993 PA 78.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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

person shall not give expert testimony on the appropriate standard

of practice or care against or on behalf of a party who is a

licensed health professional 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.

     (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.

     (ii) The instruction of students in an accredited health

professional school or accredited residency or clinical research

program in 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, an accredited health professional

school or accredited residency or clinical research program in the

same specialty.

     (c) If the party against whom or on whose behalf the testimony

is offered is a general practitioner, the expert witness, 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) Active clinical practice as a general practitioner.

     (ii) Instruction of students in an accredited health

professional school or accredited residency or clinical research

program in the same health profession in which the party against

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

     (2) In an action alleging medical malpractice, a person shall

not give expert testimony on the appropriate standard of practice

or care against or on behalf of a party who is not a licensed

health professional unless the person meets the following criteria:

     (a) Specializes at the time of the occurrence that is the

basis for the action in the same health profession as the party

against whom or on whose behalf the testimony is offered.

     (b) 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

as the party against whom or on whose behalf the testimony is

offered.

     (ii) The instruction of students in an accredited health

professional school or accredited residency or clinical research

program in the same health profession as the party against whom or

on whose behalf the testimony is offered.

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

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

minimum, evaluate all of the following:

     (a) The educational and professional training of the expert

witness.

     (b) The area of specialization of the expert witness.

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

the active clinical practice or instruction of the health

profession or the specialty.

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

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

court to disqualify an expert witness on grounds other than the

qualifications set forth in this section.

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

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

violates this subsection is guilty of a misdemeanor.

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

following limitations apply to discovery conducted by opposing

counsel to determine whether or not an expert witness is qualified:

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

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

concerning the amount of time the expert witness spends engaged in

the practice of his or her health profession.

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

witness is not discoverable. As used in this subdivision, "personal

diary or calendar" means a diary or calendar that does not include

listings or records of professional activities.

     Sec. 2912. (1) A civil action for malpractice may be

maintained against any person professing or holding himself or

herself out to be a member of a state licensed profession. The

rules of the common law applicable to actions against members of a

state licensed profession , for malpractice , are applicable

against any person who holds himself or herself out to be a member

Senate Bill No. 1117 as amended November 29, 2012

of a state licensed profession.

     (2) A civil action for medical malpractice may be maintained

against any person who is or who holds himself or herself out to be

a licensed health care professional, licensed health facility or

agency, or an employee or agent of a licensed health facility or

agency and who is engaging in or otherwise assisting in medical

care and treatment, regardless of whether the person is engaging in

the practice of the health profession in a sole proprietorship,

partnership, professional corporation, or other business entity. <<AS

USED IN THIS SUBSECTION, "LICENSED HEALTH FACILITY OR AGENCY" DOES

NOT INCLUDE A HEALTH MAINTENANCE ORGANIZATION AS THAT TERM IS

DEFINED IN SECTION 3501 OF THE INSURANCE CODE OF 1956, 1956 PA 218,

MCL 500.3501.>>

(3) (2) Malpractice may be given in evidence in defense to any

an action for services rendered by the a member of a state licensed

profession, or a person holding himself or herself out to be a

member of a state licensed profession, or an unlicensed individual

described in subsection (2).

     (4) As used in this section, "person" means an individual,

partnership, corporation, association, governmental entity, or

other legal entity.

<<Enacting section 1. Sections 2169 and 2912 of the revised

judicature act of 1961, 1961 PA 236, MCL 600.2169 and 600.2912, as

amended by this amendatory act apply only to actions in which the

cause of action arose on or after the effective date of this

amendatory act.>>