Nippa v. Botsford General Hospital 257 Mich. App. 387

*389on remand

Before: Whitbeck, C.J., and O’Connell and Meter, JJ.

O’Connell, J.

This case is before us on remand from our Supreme Court “for reconsideration in light of Cox v Flint Bd of Hosp Mgrs, 467 Mich 1 [; 651 NW2d 356] (2002).” Nippa v Botsford Gen Hosp, 468 Mich 881 (2003). In our opinion, Cox supports our decision in Nippa v Botsford Gen Hosp, 251 Mich App 664; 651 NW2d 103 (2002) (Nippa I), which the Supreme Court, in lieu of granting leave to appeal, vacated in its order of remand. That is, a plaintiff must attach to a medical-malpractice complaint against an institutional defendant an affidavit of merit executed by a physician who specializes or is board-certified in the same specialty as the health professionals on whose conduct the action is based. Thus, we come to the same conclusion as we did in our previous decision where we affirmed the trial court’s order granting summary disposition for defendant.

I. OUR PREVIOUS DECISION IN NIPPA I

In Nippa 1,1 plaintiff argued that

pursuant to the plain language of MCL 600.2169(l)(a),[2] Dr. Markowitz was competent to testify against defendant.... [PJlaintiff maintained that because the hospital, the only *390named defendant to the action, was not board certified ... , plaintiff was not required to produce an expert witness with like qualifications [as the doctors she alleged were negligent in her complaint]. [Id. at 666-667.]

We concluded that plaintiffs affidavit of merit in this medical-malpractice case was insufficient because it was not signed by a doctor who specializes or is board-certified in the same specialty as the doctors on whose conduct the action was based. MCL 600.2169; see also Tate v Detroit Receiving Hosp, 249 Mich App 212, 218-219, 220; 642 NW2d 346 (2002), cited in Nippa I, supra at 672-673. We disagreed with plaintiffs position then and we continue to do so now.

II. OUR SUPREME COURT’S DECISION IN COX

In Cox, supra, our Supreme Court held that a hospital may be held vicariously liable for the acts of its agents. Cox, supra at 11. “[A] hospital’s vicarious liability arises because the hospital is held to have done what its agents have done.” Id. at 15. Even when the hospital is the only named defendant, the issue remains whether the hospital’s agents violated the standard of care applicable to them. Id. at 5, 14-15. Our Supreme Court stated:

*391Vicarious liability is “indirect responsibility imposed by operation of law.” As this Court stated in 1871:

“[T]he master is bound to keep his servants within their proper bounds, and is responsible if he does not. The law contemplates that their acts are his acts, and that he is constructively present at them all.” [Smith v Webster, 23 Mich 298, 299-300 (1871) (emphasis added).]

In other words, the principal “is only liable because the law creates a practical identity with his [agents], so that he is held to have done what they have done.” Id. at 300. See also Ducre v Sparrow-Kroll Lumber Co, 168 Mich 49, 52; 133 NW 938 (1911). [Id. at 11 (citation omitted).]

El. ANALYSIS

After reviewing our Supreme Court’s remand order, we conclude that the Court remanded this case for us to apply the logic of Cox to the present facts.

Again, the Court in Cox held that under a vicarious-liability theory, a principal “ ‘is only liable because the law creates a practical identity’ ” between the principal and its agents. Id., quoting Smith, supra at 300. The principal is held to have done what the agent has done. The law contemplates that the agent’s acts are the principal’s acts and that the principal “ ‘is constructively present at them all.’ ” Id. Applying the logic of Cox to the present case, we hold that the standard of care applicable to the hospital is the same standard of care that is applicable to the physicians named in the complaint. For all practical purposes the hospital stands in the shoes of its agents (the doctors).

Thus, we opine that with regard to vicarious liability, medical-malpractice law applicable to a physician is also applicable to the physician’s hospital. Plaintiff *392cannot avoid the procedural requirements of the law by naming only the principal as a defendant in a medical-malpractice lawsuit. All procedural requirements are applicable to the hospital in the same manner and form as if the doctor were a named party to the lawsuit. This is so because the law creates a practical identity between a principal and an agent, and, by a legal fiction, the hospital is held to have done what its agents have done. Id. It would be absurd to have one set of legal rules for a hospital and another set of legal rules for its agents. See, e.g., Houghton Lake Area Tourism & Convention Bureau v Wood, 255 Mich App 127, 142-143, 150; 662 NW2d 758 (2003) (statutory construction should avoid an illogical or absurd result).3

Consequently, a plaintiff who sues an institutional defendant such as defendant hospital must premise her claim on vicarious liability because the institution itself is incapable of committing any independent actions, including negligence. Cox, supra at 12. Vicarious liability imposes a legal fiction on defendant hospital providing that the principal is only hable because the law creates a practical identity with its agents so that the hospital is held to have done what the agents have done. Id. at 11-12. The law treats the principal and the agent as sharing a single identity, transporting the acts of the doctors (the agents) to the hospital (the principal). Just as an institution itself is incapable of committing any independent actions, including negligence, an institution itself is *393incapable of making an averment in an affidavit of merit. Therefore, the term “party” under MCL 600.2169(l)(a) encompasses the agents for whose alleged negligent acts the hospital may still be liable. A plaintiff must submit with a medical-malpractice complaint against an institutional defendant an affidavit of merit from a physician who specializes or is board-certified in the same specialty as that of the institutional defendant’s agents involved in the alleged negligent conduct. Cox, supra at 11-12, 15; Nippa I, supra at 672-673; see also MCL 600.2912d(l).

IV. THE DISSENTING OPINION

The dissenting opinion4 faults the majority opinion for “rewrit[ing] MCL 600.2169 to make it less ‘illogical . . . .’ ”5 6 Post at 409. Unfortunately, the dissent’s con*394elusion that plaintiff is not required to file an affidavit signed by a board-certified specialist in the same specialty as defendant’s doctors is exactly contrary to the clear intent of MCL 600.2169(l)(a). See Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998) (Legislature’s intent is paramount in statutory construction); Nippa I, supra at 673 (the purpose of MCL 600.2912d[l] and 600.2169 is to ensure trustworthy medical expert testimony and to discourage frivolous lawsuits). The dissent’s strained reading of the statute actually defeats the true purpose of the statute. In Tate, supra at 218, this Court held, “Subsection 2169(l)(a) specifically states that an expert witness must ‘specialize[] at the time of the occurrence that is the basis for the action’ in the same specialty as the defendant physician.”* 6

The English language with all its nuances is not as precise or logical a language as the dissenting opinion advocates. The conceptual difficulty that bedevils the dissenting opinion is its dogged, literalist application of a generic term, “party,” to a specific set of facts. By employing an unrealistic approach, the dissent allows itself to wear blinders, losing all peripheral vision and resulting in a collision with reason and common sense. See Houghton Lake, supra; Hoste v Shanty Creek Mgt, Inc, 459 Mich 561, 574; 592 NW2d 360 (1999) (statutory construction should avoid rendering a statute nugatory). The named parties to this lawsuit have asked us to give meaning to § 2169 as it relates *395to the term “party.” In our view, the majority opinion has accomplished this goal with common sense and indisputable logic. After reading our opinion, the reader and the practitioner have a logical rule to follow when addressing the requirements of § 2169.7

Indeed, the dissent concludes that the proper definition for the term “party” in § 2169 is “party defendant.” Post at 402. Of course, the phrase “party defendant” does not appear in the statute, but that does not stop the dissenting opinion from constructing an impregnable circle that leaves unanswered the issue how our Supreme Court’s opinion in Cox applies to the present case.

We would like to make clear what § 2169 does not state. It is clear that the statute does not state “party defendant” or “party of record” as the dissenting opinion would have one believe.8 Nor does it say “party *396plaintiff.” It does not say “agent for party defendant,” and it does not say “agent for party plaintiff.” Nor does the statute say that an agent for another hospital may qualify as an expert medical witness under § 2169 aud MCL 600.2912d(l) in a medical-malpractice lawsuit against a hospital only. Nor does § 2169 say that an affidavit of merit from any health-care professional may be filed when a hospital is the sole defendant. What § 2169 does say is “party.” As we previously stated, we conclude that the term “party” is broad enough to include party plaintiff, party defendant, and the alleged negligent party as stated in the complaint by the plaintiff.9 The negligent person or entity can still be referred to as a party for the practical purposes of the statutes’ procedural requirements without offending the English language or violating the rules of logic. The majority chooses to resolve this linguistic problem with a straightforward, common-sense approach. In this manner, we accomplish the task given to this Court — application of the vicarious-liability doctrine described in Cox to the interpretation of the term “party” in the affidavit-filing requirement of the medical-malpractice statutes.10

*397In sum, the dissent’s ultimate conclusion that any physician can swear to an affidavit of merit when the only defendant is a hospital is not supported by MCL 600.2169(l)(a), especially when one of the primary purposes of the statute is to require a plaintiff’s experts to specialize in the same specialty as the physicians that they allege to be negligent. The dissenting opinion’s pigeonholed definition of the term “party” destroys the intended purpose and meaning of the statute.

V. CONCLUSION

In order to commence an action for medical malpractice, a plaintiff is required to file an affidavit of merit. MCL 600.2912d(l). This affidavit must be signed by a doctor who has the same specialty as the doctor who the plaintiff alleges to be negligent. MCL 600.2169(l)(a). Defendant’s physicians involved in this matter are board-certified in general surgery and infectious diseases. Plaintiff’s expert indicates in his affidavit of merit that he is not board-certified in either specialty; therefore, the trial court properly dismissed the complaint.

Affirmed.

Meter, J., concurred.

Whitbeck, C.J.

(dissenting). Once again I respectfully dissent. The majority states that it is applying the logic of a recent Michigan Supreme Court opin*398ion, Cox v Flint Bd of Hosp Managers,1 to this case. The legal issue here is whether, under MCL 600.2169, a plaintiff suing a hospital, and only a hospital, under a theoiy of vicarious liability is required to file an affidavit of merit signed by a physician who is board-certified in the specialty or specialties of the agent or agents of the hospital that the plaintiff claims engaged in medical malpractice. One can apply the logic of Cox to this legal issue to reach the majority’s result only if one is willing to amend MCL 600.2169 so that the term “party” in that statute includes the term “agent.” This Court is not a super-Legislature nor should it endeavor to do that which the Legislature did not do in order to make the statute less illogical and thereby more sensible. Accordingly, I would reverse the trial court’s grant of involuntary dismissal and remand.

I. BASIC FACTS AND PROCEDURAL HISTORY

Sally Nippa (Nippa) sued Botsford General Hospital, and only Botsford General Hospital, in her capacity as the personal representative of Robert Nippa’s estate. In her second amended complaint, Nippa alleged that Botsford was liable for the negligent treatment Drs. Wiley Fan, Gerald Blackburn, and Harris Mainster rendered to Robert Nippa. As the language of Nippa’s second amended complaint makes clear,2 Nippa was proceeding under a theory of vicari*399ous liability and was attributing the allegedly negligent acts of Drs. Fan, Blackburn, and Mainster, as agents, to Botsford, as the principal.

With her original complaint, Nippa filed an affidavit of merit from Dr. Arnold Markowitz. Botsford sought dismissal under MCR 2.112(L). Although Dr. Markowitz is board-certified in internal medicine, Botsford pointed out that Drs. Fan and Blackburn are board-certified in infectious diseases and Dr. Mainster is board-certified in general surgery; accordingly, Dr. Markowitz’s board-certified specialty is not the same as those of Drs. Fan, Blackburn, and Mainster. In essence, Botsford argued that while Drs. Fan, Black-bum, and Mainster were themselves not parties, it was their alleged negligence that was being imputed to the hospital under a theory of vicarious liability. Therefore, Botsford argued, MCL 600.2169(l)(a) required Dr. Markowitz’s board-certified specialties to match those of the allegedly offending physicians.

The trial court agreed and granted involuntary dismissal of the second amended complaint. Nippa then appealed the trial court’s order granting involuntary dismissal to this Court. The majority of the first Nippa panel agreed with Botsford and the trial court, and affirmed.* *3 The majority described Nippa’s contention as follows:

[Nippa] raises a novel, yet ultimately unsuccessful, legal argument concerning the proper interpretation of the word *400“party” in § 2169. Put rather simply, the thrust of [Nippa’s] argument is that the word “party” refers only to those litigants who are parties of record. Therefore, according to [Nippa], because the board-certified physicians who treated [Nippa’s] decedent are not named in the action, [Nippa], by virtue of her artful drafting of the second amended complaint, is absolved from complying with the requirements of § 2169. ro

The majority then went on to conclude, in essence, that the word “party” as used by the Legislature in MCL 600.2169 did not mean a “party” as defined in Black’s Law Dictionary.4 5 The majority supported this conclusion as follows:

In spite of the unique meaning the word “party” has acquired in the law, we do not agree with [Nippa] that by referring to “party,” the Legislature indicated its intention that the requirement that an expert witness share the same board certification as one he intends to testify against extend (sic) only to named parties to the record. In the instant case, a careful review of the second amended complaint reflects that [Nippa] is alleging liability on the part of *401[Botsford] under a theory of vicarious liability. As our Supreme Court observed in Theophelis v Lansing General Hosp, 430 Mich 473, 483; 424 NW2d 478 (1988) (Griffin, J.), “[vicarious liability is indirect responsibility imposed by operation of law.” Further, a master may not be held liable under a vicarious liability theory where the servant is not liable. Rogers v J B Hunt Transport, Inc, 244 Mich App 600, 608; 624 NW2d 532 (2001), lv gtd 465 Mich [903] (2001). This is because the principal has not committed a tortious act, and is therefore not a “tortfeasor.” Theophelis, supra at 483.

In our view, the acceptance of [Nippa’s] interpretation of the statute would “effectively repeal” § 2169, rendering it nugatory and meaningless, an interpretation that this Court must avoid. Scarsella v Pollak, 461 Mich 547, 550; 607 NW2d 711 (2000). Similarly, if we were to accept [Nippa’s] argument, plaintiffs in medical malpractice actions could routinely avoid the requirements of § 2169 by declining to name individual physicians as defendants. In a different context, our Supreme Court has expressed its dissatisfaction with such gamesmanship, specifically where parties draft pleadings to avoid the procedural medical malpractice requirements. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 43-47; 594 NW2d 455 (1999); see also Stover v Garfield, 247 Mich App 456, 467-469; 637 NW2d 221 (2001)

(O’Connell, J., dissenting)[6]

Dissenting, I placed particular emphasis on Justice Markman’s statement in Robertson v DaimlerChrysler Corp 7 that “[W]e believe that it is the constitutional duty of this Court to interpret the words of the lawmaker, in this case the Legislature, and not to substitute our own policy preferences in order to make the law less ‘illogical.’ ”81 stated that, in my view, the majority had disregarded the plain language of the *402law in order to avoid reaching what it considered to be an absurd result.91 noted that the word “party” is a legal term of art that has acquired a particular meaning in the law — quoting Black’s Law Dictionary for the proposition that the word party “ ‘refers to those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or defendant’ ”— and contended that, while Drs. Fan, Blackburn, and Mainster may be interested persons and may be Botsford’s agents, they are not party defendants.10

I also noted that by, in essence, amending the plain words of the statute, the majority was substituting its policy preferences for those of the Legislature, all to make the statute less illogical.* 11 I observed that the majority’s policy preference was clear: that a plaintiff should be required to file affidavits of merit signed by board-certified physicians whose specialties match those of the individual physicians who are not parties but for whose alleged negligence the plaintiff seeks to hold a party defendant hospital accountable under a theory of derivative12 liability.13 Such approach would be my policy preference as well, but I concluded that “[t]he problem, of course, is that this is not the policy preference that the Legislature expressed in the clear and unambiguous words of the statute.”14

Nippa then filed an application for leave to appeal to the Supreme Court. In lieu of granting leave to *403appeal, the Supreme Court vacated the judgment of this Court in Nippa I and remanded to this Court for reconsideration in light of Cox, supra. The Supreme Court stated:

A hospital may be vicariously liable for the negligence of its agents [citing Cox, supra at 11]. In Cox, the Court stated that a “hospital’s vicarious liability arises because the hospital is held to have done what its agents have done.” Id. at 15. Even when the hospital is the only named defendant, the issue remains whether the hospital’s agents violated the standard of care applicable to them. Id. at 5, 14-15.[15]

The majority, not surprisingly, now reaches the conclusion that Cox supports its decision in Nippa I. 16 It concludes that the Supreme Court remanded this case for us to apply the logic of Cox to the present case17 and states that:

Applying the logic of Cox to the present case, we hold that the standard of care applicable to the hospital is the same standard of care that is applicable to the physicians named in the complaint. For all practical purposes, the hospital stands in the shoes of its agents (the doctors).

All procedural requirements are applicable to the hospital in the same manner and form as if the doctor were a named party to the lawsuit. This is so because the law creates a practical identify between a principal and an agent, and, by a legal fiction, the hospital is held to have done what its agents have done [citing Cox, supra at 11], It would be *404absurd to have one set of legal rules for a hospital and another set of legal rules for its agents.[18]

The majority then concludes that, because Botsford’s physicians involved in this matter are board-certified in general surgery and infectious diseases while Nippa’s expert is not board-certified in either specialty, the trial court properly dismissed the complaint.19

H. APPLYING THE LOGIC OF COX TO THE FACTS OF THIS CASE

I first note that Cox did not deal at all with an interpretation of MCL 600.2169. Rather, it dealt with the propriety of a jury instruction relating to the neonatal intensive-care unit at Hurley Medical Center. When the trial court instructed the jury, it significantly modified SJI2d 30.01. The trial court stated:

“When I use the words professional negligence or malpractice with respect to the Defendant’s conduct, I mean the failure to do something which a hospital neonatal intensive care unit would do or the doing of something which a hospital neonatal intensive care unit would not do under the same or similar circumstances you find to exist in this case.

“It is for you to decide, based upon the evidence, what the hospital neonatal intensive care unit with the learning, judgment or skill of its people would do or would not do under the same or similar circumstances.”[20]

*405The Supreme Court held that this modified instruction was in error and that this error was not harmless.21 It noted that the jury instruction, as modified, eliminated any reference to any particular profession, person, or specialty and substituted, instead, the phrase “neonatal intensive care unit.” It also noted that the modified jury instruction also failed to differentiate between the various standards of care applicable to different professions and specialties.22 It further noted that because no evidence of record existed that the neonatal intensive-care unit itself is capable of any independent actions, including negligence, “it follows that the unit itself could not be the basis for [the hospital’s] vicarious liability.”23

The Supreme Court discussed the concept of vicarious liability, stating that a hospital may be vicariously hable for the negligence of its agents24 and that even when the hospital is the only named defendant, the issue remains whether the hospital’s agents violated the standard of care applicable to them.25 The Court then held that in order to find a hospital liable on a vicarious-liability theory, the jury must be instructed regarding the specific agents against whom negligence is alleged and the standard of care applicable to each agent.26

Applying this logic to the facts of this case would, I readily concede, be difficult, for the simple reason that this case did not go to trial and there was no jury *406instruction. Had there been such an instruction, however, it is abundantly clear from Cox that it would have been error to simply insert the words “Botsford Hospital” in place of the words “named profession” in SJI2d 30.01, as the trial court in Cox substituted the words “hospital neonatal intensive care unit” for the words “named profession” when it modified SJI2d 30.01. Rather, here, Nippa would have been required to prove the negligence of at least one agent of Botsford to give rise to vicarious liability on the part of Botsford and the trial court would have been required to instruct with respect to the negligence and the standard of care of this agent — or these agents — and not with respect to Botsford as the principal. Such an approach would be eminently sensible and would align directly with the overall concept of vicarious liability.

m. APPLYING THE LOGIC OF COX TO THE LEGAL ISSUE IN THIS CASE

To belabor the point, however, these are not the facts of this case and proceeding down this road is an exercise in futility. The more productive exercise, it seems to me, is to apply the logic of Cox to the legal issue in this case. That legal issue, again, is whether, under MCL 600.2169, a plaintiff suing a hospital, and only a hospital, under a theoiy of vicarious liability is required to file an affidavit of merit signed by a physician who is board-certified in the specialty or specialties of the agent or agents of the hospital that the plaintiff claims engaged in medical malpractice.27

*407The majority uses the logic of Cox to amend MCL 600.2169 so that the term “party” in that statute includes the term “agent.”28 This, I contend, is exactly contrary to the explicit language of Cox. In dealing with the issue of the applicable standard of care for nurses — an issue not present in this case — the Supreme Court was interpreting MCL 600.2912a, the statute that sets out the standard of care for general practitioners and specialists. The Supreme Court noted that the statute does not define “general practitioner” or “specialist.” The Court then stated:

When faced with questions of statutory interpretation, our obligation is to discern and give effect to the Legislature’s intent as expressed in the statutory language. *408 DiBenedetto v West Shore Hosp, 461 Mich 394, 402; 605 NW2d 300 (2000); Massey v Mandell, 462 Mich 375, 379-380; 614 NW2d 70 (2000). Undefined statutory terms must be given their plain and ordinary meanings. Donajkowski v Alpena Power Co, 460 Mich 243, 248-249; 596 NW2d 574 (1999). When confronted with undefined terms, it is proper to consult dictionary definitions. Jd[29]

In Nippa I, the majority straightforwardly admitted (1) that the term “party” in MCL 600.2169 was not defined in the statute, (2) that it had therefore consulted Black’s Law Dictionary (6th ed), and (3) that the word “party,” as defined in Black’s Law Dictionary, is a “legal term of art that has acquired a particular meaning in the law.”30 One searches in vain in Black’s, or other commonly used dictionaries,31 to find a definition of the word “party” that includes the word “agent”; indeed, Black’s states, as noted above, that the word “party” “ ‘refers to those by or against whom a legal suit is brought, whether in law or in equity, the party plaintiff or defendant, whether composed of one or more individuals and whether natural or legal persons; all others who may he affected by the suit, indirectly or consequently, are persons interested hut not parties.’” Nippa, I, supra at 674 (emphasis supplied). Quite clearly, then, the word “party” does not include within its meaning the word “agent.”

*409IV. CONCLUSION

Applying the logic of Cox to the facts of this case leads ultimately to a blind alley. Cox deals, with respect to the concept of vicarious liability, with an instructional error. There were no instructions in this case and therefore there can be no instructional error. Applying the logic of Cox to the legal issue in this case is possible only if one expands the meaning of the word “party” to include the word “agent.”

With what, then, are we left? I believe we are left with a well-intentioned effort to rewrite MCL 600.2169 to make it less “illogical” and more in accordance with common sense. At the risk of repetition, I return to my conclusion in Nippa I:

[S]uch an amended statute would be logical, fair, and, I would hope, workable. Perhaps the Legislature will enact such an amendment. As yet, however, it has not. There is nothing in our judicial commissions or anywhere to be found in the concept of the separation of powers that empowers us to perfonn this task as the Legislature’s surrogate. It is not within our judicial responsibilities to undertake to do what the Legislature should have done, but did not do. The majority chooses to embark on just such an undertaking. I do not. I would, therefore, reverse.[32]

The majority again raises, in responding to this dissent, the issue of the definition of the word “party,” suggesting that the dissent uses a “pigeonholed definition” and “destroys the intended purpose and meaning of the statute.”33 Again at the risk of repetition, I note that in Nippa I, the majority conceded that MCL *410600.2169 does not define the word “party.”34 That was certainly correct. Accordingly, the majority in Nippa I turned to a dictionary to ascertain the meaning of that word.35 That was certainly appropriate.36 The dictionary to which the majority turned was Black’s. The central definition of a party in Black’s is: “A party to an action is a person whose name is designated on record as plaintiff or defendant.”37 The majority now contends that the statute itself does not say “party defendant,” “party of record,” “party plaintiff,” or agent for “party plaintiff.”38 This is certainly so. The majority then states that, “What § 2169 does say is ‘party.’ ”39 This is also certainly so. It is equally certain that, under any dictionary definition that I have been able to find, the term “party” does not include the allegedly negligent agent of a party.

The majority’s statement that it has resolved the “linguistic problem” with a “straightforward, commonsense approach” is, however, certainly true.40 The attempt is earnest and well-intentioned. It makes the statute less illogical and more sensible. But we are not modern-day alchemists with a roving commission to turn legislative lead into judicial gold. We cannot, in the name of common sense, redefine the word party to include the word agent; that is a task for the Legislature to undertake if it chooses. The response to the Supreme Court’s remand should not be to *411undertake the legislative task of amending the statute but rather to give the plain and ordinary meaning to the undefined statutory term41 “party.” If one does so, then I believe the resolution to the problem at hand is to hold that Nippa, while required to file an affidavit of merit signed by a physician, was not required, when she sued only Botsford, to file an affidavit, signed by a board-certified specialist. This is not, by any stretch of the imagination, an absurd result and it applies the law as the Legislature enacted it.