September 16, 2003, Introduced by Senators GOSCHKA, GEORGE and HARDIMAN and referred to the Committee on Judiciary.
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
7 testimony is offered is a
specialist, specializes then at the
8 time of the occurrence that is the basis for the action and at
9 the time of the testimony, the expert witness must be board
10 certified in the same specialty as the party against whom or on
1 whose behalf the
testimony is offered. However, if This
2 requirement applies regardless of whether the party against whom
3 or on whose behalf the testimony is offered is a specialist who
4 is board certified.
, the expert witness must be a specialist
5 who is board certified
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
11 profession in which the party against whom or on whose behalf the
12 testimony is offered is licensed and, if that party is a
13 specialist, 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
22 testimony is offered is a
general practitioner, the expert
23 witness, then during the year immediately preceding the
date of
24 the occurrence that is the basis for the claim or action, the
25 expert witness devoted a majority of his or her professional time
26 to either or both of the following:
27 (i) Active clinical practice as a general practitioner.
1 (ii) Instruction of students in an accredited health
2 professional school or accredited residency or clinical research
3 program in the same health profession in which the party against
4 whom or on whose behalf the testimony is offered is licensed.
5 (2) In determining the qualifications of an expert witness in
6 an action alleging medical malpractice, the court shall, at a
7 minimum, evaluate all of the following:
8 (a) The educational and professional training of the expert
9 witness.
10 (b) The area of specialization of the expert witness and
11 whether the expert witness was board certified at the time of the
12 occurrence that is the basis for the action and is currently
13 board certified.
14 (c) The length of time the expert witness has been engaged in
15 the active clinical practice or instruction of the health
16 profession or the specialty.
17 (d) The relevancy of the expert witness's testimony.
18 (3) This section does not limit the power of the trial court
19 to disqualify an expert witness on grounds other than the
20 qualifications set forth in this section.
21 (4) In an action alleging medical malpractice, an expert
22 witness shall not testify on a contingency fee basis. A person
23 who violates this subsection is guilty of a misdemeanor.
24 (5) In an action alleging medical malpractice, all of the
25 following limitations apply to discovery conducted by opposing
26 counsel to determine whether or not an expert witness is
27 qualified:
1 (a) Tax returns of the expert witness are not discoverable.
2 (b) Family members of the expert witness shall not be deposed
3 concerning the amount of time the expert witness spends engaged
4 in the practice of his or her health profession.
5 (c) A personal diary or calendar belonging to the expert
6 witness is not discoverable. As used in this subdivision,
7 "personal diary or calendar" means a diary or calendar that does
8 not include listings or records of professional activities.
9 (6) As used in this section, "board certified" means that
10 term as defined in section 2701 of the public health code, 1978
11 PA 368, MCL 333.2701.