Lyons v. Brodsky
Lyons v. Brodsky
Opinion of the Court
Plaintiff appeals as of right from a grant of summary judgment in favor of both defendants.
"4. That on February 28, 1979, your plaintiff became a patient of Drs. Sherman and Brodsky, for the purpose of receiving care and treatment relative to a foot complaint.
"5. That in March, 1979, and April, 1979, defendants, Robert Brodsky and Errol Sherman performed surgery on the plaintiff and treated said plaintiff until August, 1979.
"7. That in rendering care and treatment to your plaintiff, the said defendants had a duty to exercise that reasonable degree of skill and care ordinarily exercised and possessed by similar practitioners of the same or similar localities.
"8. That defendants Brodsky and Sherman breached their duty to your plaintiff in that they failed to exercise the degree and skill, learning, knowledge and diligence as hereinbefore set forth, and failed to observe the applicable standard of practice required of a specialist in the field of podiatry in the following manner:
"(a) Failed to properly diagnose the cause of your plaintiff’s foot complaint;
"(b) Performed sürgery on your plaintiff on a number of occasions both in the office of the individual defendants Brodsky and Sherman and in the hospital wherein all other defendants were associated, said surgery being unwarranted and unnecessary for plaintiff’s condition;
"(c) That the aforementioned surgery was rendered in a careless and negligent manner;
"(d) That certain of the surgical procedures aforementioned were contrary to the statutes of the State of Michigan and were outside the scope of the practice of podiatry.
"(e) That defendants failed to treat in accordance with the standards of similar physicians and surgeons.
"10. That all of the above defendants concealed the
"11. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has endured in the past, and yet endures at present, as well as the future, great and agonizing pain in her feet, lacks the ability to properly balance herself, and lacks the ability to walk normally.
"12. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has expended sums of money for medical treatment, pharmaceuticals, and prosthetic appliances in the past, and will require the expenditures of monies in the future for additional medical treatment, pharmaceuticals and prosthetic appliances.
"13. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has suffered disfigurement and scarring of her feet which will require corrective and cosmetic surgery in the future.
"14. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has suffered a loss of earnings in the past, find has further suffered a loss of earning capacity.
"15. That the injuries to your plaintiff are permanent in nature, and will result in future arthritic deterioration to various parts of her body.”
Defendants each moved for summary judgment, claiming that plaintiffs complaint of malpractice was insufficiently specific. In their claims, they relied on the rule that medical malpractice must be pled more specifically than other types of negligence. See Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953). Plaintiff moved to amend her complaint to make it more specific, and leave was given. Her amended complaint did not, however, make any substantial changes in, or additions to,
In Simonelli v Cassidy, supra, the Supreme Court delineated the requirements of a complaint alleging medical malpractice by citing the following passage from 70 CJS, § 61, p 985:
"In an action for damages occasioned by the negligence or malpractice of a physician or surgeon, every fact necessary to constitute a cause of action must be alleged in the declaration, complaint, or petition, and, moreover, such facts must be alleged with reasonable definiteness and certainty, although it is not necessary to couch the declaration in the technical language of the medical profession. Thus, it is essential to allege, with reasonable definiteness and certainty, the duty of the physician or surgeon to the person injured, the breach of duty complained of, the causal relation between the breach of duty and the injuries complained of, and resulting damage.”
At the time of its decision, a complaint was required to "contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend”. Simonelli, supra, p 642. This is essentially the same rule of pleading which we must apply to the present case. See GCR 1963, 111.1(1).
In the present case, plaintiff’s complaint omits information reasonably necessary to inform the defendants of the nature of her claim. Although the complaint states that plaintiff sought care for a "foot complaint”, it is too vague to inform defendants of the specific duty alleged to be breached. The complaint alleges that both defendants performed surgery in March and April of 1979. Although it appears that plaintiff is claiming that
Affirmed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.