In Michigan medical malpractice cases involving a specialist, MCL 600.2169 sets qualification requirements for standard-of-care experts, including specialty-matching requirements. The Michigan Supreme Court has clarified that MCL 600.2169 does not require a separate match for an area properly classified as a subspecialty.
In Stokes v. Swofford, decided with Selliman v. Colton on July 25, 2024, the Court partially overruled Woodard v. Custer. For medical malpractice claims against physicians, Stokes ties specialty matching to specialties recognized by the ABMS, AOA, ABPS, or other similar nationally recognized physician umbrella-certifying organizations. It does not require precise subspecialty matching. Other licensing, practice, qualification, and admissibility requirements still apply.
This guide explains what Stokes changed and what attorneys should verify when selecting a Michigan medical standard-of-care expert.
What Does MCL 600.2169 Require?
MCL 600.2169 governs standard-of-care expert testimony in Michigan medical malpractice actions. The proposed expert must be licensed as a health professional in Michigan or another state and meet the statute's applicable specialty and practice requirements.
If the party against whom or on whose behalf the standard-of-care testimony is offered is a specialist, the expert must have specialized in the same specialty at the time of the occurrence underlying the action. If that party was board certified, the expert must also have the required board certification in that specialty.
During the year immediately before the occurrence, a specialist expert also must have devoted a majority of professional time to qualifying clinical practice, instruction, or both. That work must have been in the same health profession and specialty. MCL 600.2169(1)(c) provides a separate rule for general practitioners.
Under MCL 600.2169(2), the court must, at a minimum, evaluate the expert's education and training, area of specialization, length of active practice or instruction, and relevance of the testimony. Subsection (3) also allows an expert to be disqualified on other grounds.
What Did Stokes v. Swofford Change?
Woodard v. Custer treated subspecialties as specialties under MCL 600.2169 and applied a "one most relevant specialty" framework. Stokes partially overruled Woodard on subspecialty matching but agreed that only the one most relevant specialty must match.
For medical malpractice claims against physicians, Stokes focuses on specialties recognized by the ABMS, AOA, ABPS, or other similar nationally recognized physician umbrella-certifying organizations. Once an area is properly classified as a subspecialty within the relevant specialty, MCL 600.2169 does not require a separate subspecialty match, although the statute's other requirements still apply.
How the Michigan Supreme Court Applied the Rule in Stokes
In Stokes, the defendant was a board-certified diagnostic radiologist, while the plaintiff proposed Dr. Berger, a diagnostic radiologist who subspecialized in neuroradiology. Because his neuroradiology practice fell within diagnostic radiology, the Michigan Supreme Court concluded that he practiced the relevant specialty and satisfied MCL 600.2169(1).
The companion Selliman case shows that deciding whether a certification is a specialty or subspecialty can require close factual analysis. The Court remanded Selliman for the trial court to make that determination, with an evidentiary hearing available if needed. At a minimum, the trial court should consider whether obtaining the certification at issue requires an existing specialty certification from an umbrella certifying organization. It may also examine the certification's requirements, the rigor of its process and assessments, and how much the relevant areas of medical practice overlap.
Practical Effect of Stokes on Medical Expert Qualifications
Stokes may broaden the pool of potential standard-of-care experts when a proposed physician expert shares the relevant baseline specialty but practices a different subspecialty. It does not make an expert automatically admissible or eliminate the remaining qualification and admissibility requirements under MCL 600.2169 and Michigan Rule of Evidence 702.
How Should Attorneys Vet a Michigan Medical Expert?
Attorneys should treat specialty matching as the beginning of the qualification analysis, not the end.
- Define the standard-of-care opinion the expert will offer.
- Verify the defendant's specialty at the time of the alleged malpractice and whether the defendant was board certified in that specialty.
- Confirm the expert's specialty, subspecialties, certifications, and qualifying clinical or teaching work during the relevant period.
- Develop a record addressing the factors MCL 600.2169(2) requires the court to evaluate, including training, specialization, length of practice, and relevance.
- Evaluate admissibility and reliability under Michigan Rule of Evidence 702 and other applicable Michigan authority, in addition to the qualification requirements of MCL 600.2169. MRE 702 requires the witness to be qualified as an expert by knowledge, skill, experience, training, or education.
- The proponent must also demonstrate to the court, more likely than not, that the testimony satisfies MRE 702's requirements for helpfulness, sufficient facts or data, reliable principles and methods, and reliable application. For scientific expert opinions, MCL 600.2955 also provides statutory reliability requirements that apply in addition to MCL 600.2169.
MCL 600.2912d also generally requires an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements of MCL 600.2169.
Conclusion
The Michigan Supreme Court's decision in Stokes v. Swofford clarified that precise subspecialty matching is not required for physician standard-of-care experts governed by the decision. Attorneys should still evaluate specialty, certification, recent practice, relevant experience, and compliance with MCL 600.2169, Michigan Rule of Evidence 702, and MCL 600.2955 when applicable.
