Medical malpractice; Striking an expert; Expert qualification; MCL 600.2169(1)(b); “Active clinical practice”; Gay v Select Specialty Hosp; Kiefer v Markley; Motion to substitute another expert; MCR 2.401(I); Motion to amend a witness list; “Good cause”; Smith v Beaumont Health; Dean v Tucker; Affidavit of merit (AOM)

The court held that the trial court properly applied MCL 600.2169(1)(b) and did not abuse its discretion in striking plaintiff-estate’s nursing expert (S) as an expert witness or in denying its motion to substitute another expert. This medical malpractice case arose from the decedent’s suffering a stroke and dying after presenting to defendant-hospital’s ER. The first issue on appeal was whether, in the year before the incident, S’s “active clinical practice and instruction of students combined to be more than half of her professional time.” The court held that the trial court did not abuse its discretion in finding that it did not. She swore in her AOM “that ‘more than 50% of [her] professional time was spent in either teaching and/or the practice of nursing’ during the year before the alleged malpractice occurred in [8/20]. But at her deposition, [S] testified she spent only about 30% of her time that year on the counted activities and that she spent the rest of her time as Clinical Nurse Manager on administrative activities such as hiring, discipline, staffing, budgeting, and other managerial duties.” The court concluded that, applying “Gay’s definitions of the terms in ‘active clinical practice,’ [S’s] administrative duties outlined in her deposition” did not fit within their parameters. Plaintiff proffered no evidence that S’s administrative duties, which she “agreed comprised about 70% of her time, . . . involved the direct or indirect observation and treatment of patients.” As to the substitution motion, the Supreme Court in Smith reversed the court’s holding that the Dean factors must be considered in evaluating a motion to amend a witness list. Smith set forth “some ‘basic considerations’” for analyzing good cause as to diligence in this context. The trial court gave “several reasons for finding that plaintiff failed to show the required good cause.” The court determined that plaintiff’s failure to realize in 10/24 that S “may not have been qualified as an expert, combined with other delays, supports the conclusion that the trial court did not err in finding a lack of diligence.” The court noted “Smith emphasized that ‘the lack of diligence itself may be prejudicial to the opposing party because of the increased costs of unnecessary litigation,’ and the trial court explained why the risk of prejudice to” the hospital outweighed any prejudice asserted by plaintiff. Affirmed.