An affidavit of merit submitted by a board-certified cardiologist satisfied the medical-malpractice expert witness requirements in MCL 600.2912d and MCL 600.2169, even though the doctor’s specialty was not interventional cardiology, the Michigan Court of Appeals has ruled.

Accordingly, the Court of Appeals held the trial court properly denied the defendants’ motion for summary disposition, which was based on a claim that the affidavit of merit was defective because it was executed by a doctor who was not an interventional cardiologist like the defendant.

In Michigan, MCL 600.2912d requires that a med-mal plaintiff file with the complaint an affidavit of merit signed by a doctor “who the plaintiff’s attorney reasonably believes meets the requirements for an expert witness under section 2169.” Meanwhile, MCL 600.2169 says that a person shall not give expert testimony in a med-mal action on the appropriate standard of care unless that person is a licensed physician and “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.”

In the present case, Estate of Norczyk v Danek (Docket No. 339713), the Court of Appeals concluded that, based on the record, the board-certified general cardiologist who provided the med-mal affidavit was just as qualified as the defendant-doctor, an interventional cardiologist, to determine the need for a catheterization or other invasive procedure.

“[T]he one most relevant specialty here is cardiology, not interventional cardiology,” the Court of Appeals said, “because the allegations of medical malpractice do not pertain to negligence in the performance of invasive procedures, but instead concern failures by [the defendant doctor] to act relative to [the decedent’s] care and treatment, falling outside of and not encompassed by the performance of invasive procedures.”

Judge William B. Murphy wrote the published opinion, joined by Judge David H. Sawyer and Judge Brock A. Swartzle.

Med-Mal Complaint

The decedent, Anthony Norczyk, had all his teeth extracted and died from complications. Dr. Nelson Gencheff was a board-certified cardiologist and interventional cardiologist at Marquette General Hospital. When Norczyk presented to the emergency room, Gencheff was the on-call doctor and provided recommendations regarding Norczyk’s medical treatment. Norczyk subsequently died.

The plaintiff, Norczyk’s estate, filed this med-mal suit against Gencheff, Marquette General Hospital and others in Marquette County Circuit Court. The plaintiff alleged that Gencheff was negligent and breached the duty owed to Norczyk by failing to: 1) provide immediate and prompt cardiology care; 2) recognize that Norczyk exhibited signs of acute coronary syndrome (ACS) requiring immediate cardiac treatment; 3) promptly pursue a cardiac catheterization and initiate an optimal plan of revascularization upon recognition of ACS; and 4) prevent further harm to Norczyk.

As required by statute, the plaintiff supported the med-mal complaint with an affidavit of merit. The affidavit of merit was executed by Dr. Joshua Furman, a board-certified general cardiologist.

The defendants filed a motion for summary disposition, claiming that Furman was not a qualified expert for purposes of the affidavit of merit because he was not a specialist in interventional cardiology.

The trial court denied the defendants’ motion, finding that because Gencheff “responded to a call from the emergency room, it appears that his role as a general, on-call cardiologist was the most relevant specialty at the time.”

The defendants appealed.

Affidavit Of Merit

The Court of Appeals began its analysis by referencing MCL 600.2912d(1) and MCL 600.2169, and by relying on Woodard v Custer, 476 Mich 545 (2006).

In Woodward, the Michigan Supreme Court held that “if a defendant physician is a specialist, the plaintiff’s expert witness must have specialized in the same specialty as the defendant physician at the time of the alleged malpractice.” Further, “if a defendant physician specializes in a subspecialty, the plaintiff’s expert witness must have specialized in the same subspecialty as the defendant physician at the time of the occurrence that is the basis for the action,” the Michigan Supreme Court said in Woodward.

Here, it was undisputed that Gencheff and Furman were both board-certified cardiologists. “However, Gencheff holds a certificate indicating that he completed a fellowship in advanced interventional cardiovascular disease,” the Court of Appeals observed. “Furman does not hold such a certificate. This certificate distinguishes the two physicians, although that distinction is relevant only if, at the time of the alleged malpractice, Gencheff was practicing interventional cardiology, making that the one most relevant specialty.”

The Court of Appeals explained the parties did not dispute that Gencheff was consulted about Norczyk’s medical treatment after he arrived at the emergency room and while Gencheff was on-call. “Plaintiff argued that during this initial consultation, in a general, on-call-cardiologist capacity, Gencheff failed to make decisions and take actions necessary for Norczyk’s well-being relative to the functioning of his heart. Accordingly, plaintiff argued in the trial court, and continues to argue on appeal, that the one most relevant specialty was that of a general, on-call cardiologist.”

To support the plaintiff’s arguments, Furman executed an affidavit separate from his affidavit of merit, indicating that in his role as a board-certified general cardiologist, he had been faced with making decisions similar to those Gencheff has to make, the Court of Appeals noted.

On the other hand, the defendants asserted the one most relevant specialty was that of an interventional cardiologist, “because only an interventional cardiologist can perform cardiac catheterizations, the procedure that plaintiff alleged was not undertaken on a timely basis,” the Court of Appeals observed.

However, the defendants “did not submit an affidavit from Gencheff, let alone one in which he asserted that he was engaged in interventional cardiology with respect to his consultation and assessment of Norczyk prior to performing the catherization,” the Court of Appeals said. “Nor did defendants explain the difference between the practice of cardiology and the practice of interventional cardiology in the context of the circumstances of this case.”

“One Most Relevant Specialty”

The documentary evidence made it “quite clear” that the difference between a cardiologist and an interventional cardiologist “is that the latter is permitted or authorized to perform invasive procedures to address cardiac issues, whereas a general cardiologist engages in the practice of diagnosing, evaluating, and assessing cardiac problems but cannot perform invasive procedures,” the Court of Appeals said.

“We conclude that the one most relevant specialty here is cardiology, not interventional cardiology, because the allegations of medical malpractice do not pertain to negligence in the performance of invasive procedures, but instead concern failures by Gencheff to act relative to Norczyk’s care and treatment, falling outside of and not encompassed by the performance of invasive procedures,” the Court of Appeals wrote.

In this case, the defendant’s argument was “built almost entirely on the proposition that, because plaintiff alleges that Gencheff was negligent in not timely performing a catheterization, and because only an interventional cardiologist can perform a catheterization, Gencheff was practicing interventional cardiology during the relevant timeframe,” the Court of Appeals explained.

However, nothing in the underlying record suggested that “a general cardiologist is not just as capable as an interventional cardiologist in assessing a patient’s need for a catheterization or other invasive procedure,” the Court of Appeals stated.

“We find it quite telling that defendants did not produce an affidavit or deposition testimony by Gencheff himself wherein he claims that he was practicing interventional cardiology, as opposed to general cardiology, with respect to Norczyk’s care prior to invasive procedures being employed,” the Court of Appeals wrote. “And Furman’s summary disposition affidavit averred that Gencheff ‘was being consulted in the standard role of a board-certified cardiologist who was on call for cardiac consultations for patients presenting to the emergency room.’”

Therefore, “we agree with the trial court’s determination that Furman’s affidavit of merit submitted on behalf of plaintiff satisfied the requirements of MCL 600.2912d and MCL 600.2169, where the one most relevant specialty was cardiology, not interventional cardiology,” the Court of Appeals concluded.