In an order in lieu of granting leave to appeal, the court reversed the Court of Appeals' judgment in a published case (see e-Journal # 46477 in the 8/2/10 edition), holding, inter alia, that the trial court correctly determined as a matter of law that the appropriate SOC was "family practice" because the defendant-physician was board-certified solely in family medicine. "Further, pursuant to MCL 600.2912a, the trial court properly allowed the jury to consider that standard of care in light of the facilities available to the defendant physician - an urgent care center, not an emergency medical facility." The court held that the trial court did not abuse its discretion in ruling that defendants' experts were qualified to provide SOC testimony under MCL 600.2169 because they satisfied the specific qualifications of MCL 600.2169(a)-(b). The court also concluded that the trial court did not abuse its discretion by excluding plaintiff's proposed document exhibits at issue for the reasons stated in the Court of Appeals dissent. "Contrary to the dissent's assertion, the trial court's error in waiting to establish the standard of care until after the proofs had closed is not ‘inconsistent with substantial justice.'" B, one of plaintiff's experts, testified that there was no difference between family practice medicine and emergency medicine. "Thus, under plaintiff's theory of the case, additional and perhaps distinct testimony" on the SOC for doctors specializing in family medicine was unnecessary. Further, the court concluded that the plaintiff "significantly contributed to the trial court's error" by arguing that the trial court should have used Woodard's "one-most-relevant-specialty" test to determine the physician was practicing emergency medicine and thus, should have been held to the SOC of an emergency medicine specialist. "Plaintiff should not be rewarded with a retrial simply because her faulty argument only half side-tracked the trial court." The court also determined that the trial court did not preclude plaintiff from presenting SOC testimony from a doctor specializing in family medicine. While "the trial court did not manage the standard of care or the expert qualification issues perfectly, its error did not prejudice plaintiff so as to make upholding the jury verdict ‘inconsistent with substantial justice' under MCR 2.613(A)." The court remanded the case to the Court of Appeals for consideration of issues plaintiff raised but the Court of Appeals did not address in its initial review.
The dissent stated that by "reversing the Court of Appeals' grant of a new trial, the majority ignores that the trial court waited until the close of proofs to determine the appropriate" SOC. "The trial court's error essentially nullified much of the expert testimony already heard by the jury, disqualified at least one expert who had already testified, and emphasized the testimony of defendants' experts over those of plaintiff." The dissent concluded that this error "rendered the trial so fundamentally deficient that a refusal to grant a new trial is ‘inconsistent with substantial justice.'" The dissent noted that there is no board certification available for family practice in an urgent-care center. Thus, the trial court's hybrid SOC violated Woodard. Further, if the applicable SOC was family medicine, then the trial court should not have allowed an emergency physician to testify as to the SOC under MCL 600.2169(1). Had the trial court conclusively ruled on the applicable SOC before trial, "plaintiff would have had at least some opportunity to secure another expert and focus the testimony solely on family medicine." Also, the dissent concluded that the trial court's jury instruction rendered irrelevant much of plaintiff's experts' testimony. The dissent would affirm the Court of Appeals result and remand for a new trial. However, the dissent would vacate the Court of Appeals' conclusion that emergency medicine was the applicable SOC and require that the governing SOC be determined before trial in order to give all parties a reasonable opportunity to prepare accordingly. The dissent would also affirm the Court of Appeals as to the admissibility of guidelines and internal policies.
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