February 28, 2006, Introduced by Reps. Newell, Vander Veen, Kahn, Green, Meyer, Nofs, Proos, Emmons, Pearce, Huizenga, Ball, Sheen, Van Regenmorter, Stakoe, Caswell, Kooiman, Jones and Walker 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:
Sec. 2169. (1) In an action alleging medical malpractice, a
person shall not give expert testimony on the appropriate standard
of practice or care unless the person is licensed as a health
professional
in this state, or another state including being
licensed under a limited license that allows the person to testify
as an expert witness, and the person also meets the following
criteria:
(a) If the party against whom or on whose behalf the testimony
is offered is a specialist, specializes at the time of the
occurrence that is the basis for the action in the same specialty
as the party against whom or on whose behalf the testimony is
offered. However, 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.
(b) Subject to subdivision (c), during the year immediately
preceding the date of the occurrence that is the basis for the
claim or action, devoted a majority of his or her professional time
to either or both of the following:
(i) The active clinical practice of the same health profession
in which the party against whom or on whose behalf the testimony is
offered is licensed and, if that party is a specialist, the active
clinical practice of that specialty.
(ii) The instruction of students in an accredited health
professional school or accredited residency or clinical research
program in the same health profession in which the party against
whom or on whose behalf the testimony is offered is licensed and,
if that party is a specialist, an accredited health professional
school or accredited residency or clinical research program in the
same specialty.
(c) If the party against whom or on whose behalf the testimony
is
offered is a general practitioner, the
expert witness,
during
the year immediately preceding the date of the occurrence that is
the basis for the claim or action, devoted a majority of his or her
professional time to either or both of the following:
(i) Active clinical practice as a general practitioner.
(ii) Instruction of students in an accredited health
professional school or accredited residency or clinical research
program in the same health profession in which the party against
whom or on whose behalf the testimony is offered is licensed.
(2) In determining the qualifications of an expert witness in
an action alleging medical malpractice, the court shall, at a
minimum, evaluate all of the following:
(a)
The educational and professional training of the expert
witness.
(b)
The area of specialization of the
expert witness.
(c)
The length of time the expert witness has been engaged
in the active clinical practice or instruction of the health
profession or the specialty.
(d)
The relevancy of the expert witness's testimony.
(e) The amount of time spent by the witness providing
testimony as an expert witness during the year immediately
preceding the date of the witness's testimony in the action.
(3) This section does not limit the power of the trial court
to disqualify an expert witness on grounds other than the
qualifications set forth in this section.
(4) In an action alleging medical malpractice, an expert
witness shall not testify on a contingency fee basis. An expert
witness shall not be compensated for his or her testimony at a rate
that exceeds the rate for comparable time and expertise. A person
who violates this subsection is guilty of a misdemeanor.
(5) In an action alleging medical malpractice, all of the
following limitations apply to discovery conducted by opposing
counsel to determine whether or not an expert witness is qualified:
(a)
Tax returns of the expert witness are not discoverable.
(b)
Family members of the expert witness shall not be
deposed
concerning the amount of time the
expert witness
spends
engaged in the practice of his or her health profession.
(c)
A personal diary or calendar belonging to the expert
witness is not discoverable. As used in this subdivision, "personal
diary or calendar" means a diary or calendar that does not include
listings or records of professional activities.