
    GREATHOUSE v RHODES (ON REMAND)
    Docket No. 214434.
    Submitted October 31, 2001, at Grand Rapids.
    Decided December 14, 2001, at 9:10 A.M.
    Sally Greathouse, as personal representative of the estate of Robert Greathouse, deceased, brought an action in the Berrien Circuit Court against Charles Rhodes, M.D., and others, alleging malpractice in the medical care of the decedent. Before trial, the plaintiff moved to strike two board-certified family practitioners and an internist named on Rhodes’ witness list as experts. The plaintiff contended that those witnesses were not qualified under MCL 600.2169(l)(a), which requires expert witnesses testifying for or against a board-certified specialist on the issue of standard of care to be board certified in the same specialty as the person for or against whom the testimony is offered, because Rhodes was a board-certified general surgeon but his expert witnesses were not. The court, Lynda A. Tolen, J., denied the motion. Following a jury trial at which the court refused to allow the plaintiff to use treatises during direct examination of her expert witnesses on standard of care for the purpose of establishing that their opinions met the requirements of MCL 600.2955(1), judgment was entered on a jury verdict for the defendants. The plaintiff appealed. The Court of Appeals affirmed, holding, in part, that the plaintiff forfeited the issue of the experts’ qualifications under subsection 2169(l)(a) by failing to raise her challenge within a reasonable time. 242 Mich App 221 (2000). The plaintiff sought leave to appeal to the Supreme Court, which, in lieu of granting leave to appeal, reversed the judgment of the Court of Appeals insofar as it held that the plaintiff forfeited her challenge to the expert witnesses. The Court remanded the matter to the Court of Appeals to consider whether subsection 2169(1) applies to the matter and, if so, the effect of the opinion in McDougall v Schanz, 461 Mich 15 (1999), on the matter. 465 Mich 885 (2001).
    On remand, the Court of Appeals held-.
    
    This matter implicates § 2169 because the plaintiff challenged the qualifications of Dr. Rhodes’ “standard of care” witnesses on the basis that they are not board certified in the same specialty. The Supreme Court’s holding in McDougall, that § 2169 is constitutional, reversed the holding in McDougall v Eliuk, 218 Mich App 501 (1996), that § 2169 was unconstitutional, which the trial court had relied on in denying the plaintiffs motion to strike Dr. Rhodes’ expert witnesses. The order denying the motion to strike must be reversed and the matter must be remanded for consideration of the motion under § 2169.
    Reversed and remanded.
    
      Ferris & Salter, P.C. (by Heidi Salter-Ferris), for Sally Greathouse.
    
      Smith, Haughey, Rice & Roegge (by Lance R. Mather), for Charles Rhodes, M.D., and Southwestern Medical Clinic.
   ON REMAND

Before: Saad, P.J., and Jansen and Talbot, JJ.

Per Curiam.

Our Supreme Court has reversed in part our prior judgment in this matter and remanded this case to our Court with instructions to determine whether MCL 600.2169(1) applies under the facts and, if so, to consider the effect of our Supreme Court’s decision in McDougall v Schanz, 461 Mich 15; 597 NW2d 148 (1999). 465 Mich 885 (2001). The facts and issues are set out in our previous decision, Greathouse v Rhodes, 242 Mich App 221; 618 NW2d 106 (2000).

In its order remanding this case, our Supreme Court reversed our holding that the trial court properly denied plaintiff’s motion to strike Dr. Charles Rhodes’ standard of care witnesses under MCL 600.2169(l)(a) because plaintiff failed to file her motion within a reasonable time after learning the identities of the experts. Greathouse, supra at 231. Because plaintiff did not forfeit her right to challenge Dr. Rhodes’ witnesses on the basis of the time of her challenge, we now consider the trial court’s ruling regarding the application of MCL 600.2169(l)(a).

We hold that this case implicates § 2169 because plaintiff challenges the qualifications of Dr. Rhodes’ “standard of care” witnesses because they are not board certified in the same specialty. Though the trial court initially granted plaintiff’s motion on the basis of § 2169, it ultimately denied plaintiff’s motion to strike because “it was compelled to adhere to the McDougall [v Eliuk, 218 Mich App 501; 554 NW2d 56 (1996)] holding that § 2169 was unconstitutional . . . .” Greathouse, supra at 226. As we observed in our prior opinion, “our Supreme Court reversed McDougall and concluded that § 2169 is ‘an enactment of substantive law’ and ‘[a]s such does not impermissibly infringe this Court’s constitutional rule-making authority.’ ” Greathouse, supra at 228, quoting McDougall v Schanz, supra, at 37. Therefore, we ruled that the basis for the trial court’s decision was erroneous. Greathouse, supra at 228.

Accordingly, we reverse the trial court’s order denying on the basis of the alleged unconstitutionality of § 2169 plaintiff’s motion to strike, and we remand for consideration of plaintiff’s motion under the statute. Specifically, the trial court should determine the merits of plaintiff’s motion in which she argued that Dr. Rhodes’ “standard of care” witnesses do not comply with § 2169 because Dr. Rhodes is a board-certified general surgeon and the proposed witnesses are not; one witness is an internal medicine specialist, and the other two are board-certified family practitioners. Further, the trial court should consider Dr. Rhodes’ argument that § 2169 does not preclude his witnesses because he does not practice general surgery regularly and did not practice general surgery on the decedent, Robert Greathouse.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.  