Moy v. Detroit Receiving Hospital
Moy v. Detroit Receiving Hospital
Opinion of the Court
Plaintiff appeals as of right from an order of summary disposition entered February 24, 1986, dismissing his medical malpractice claims against defendants Detroit Receiving Hospital, Harper Grace Hospital, Dr. Robert B. Stanley and Dr. Donald Levine. We affirm.
This case arises out of the care and treatment provided plaintiff in 1981 for a condition which was eventually diagnosed as tuberculosis. On June 29, 1981, plaintiff reported to the emergency room of Detroit Receiving Hospital, complaining of pain and swelling in his neck. He was released the
Dr. Stanley admitted plaintiff to Detroit Receiving Hospital on July 8, 1981. Various tests and examinations were performed, including a tuberculosis test administered on July 17, 1981. On July 18, 1981, prior to receiving the results of the tuberculosis test, Dr. Stanley performed surgery on plaintiff’s neck, draining the abscess on plaintiff’s parotid (salivary) gland. Two days later Dr. Stanley noted on plaintiff’s hospital chart that plaintiff had tested positive for tuberculosis and was in need of consultation with a specialist in infectious diseases. On that same day, July 20, 1981, plaintiff was examined by defendant Donald Levine, an infectious disease specialist, in consultation with Dr. Stanley. However, no further diagnosis of or treatment for tuberculosis followed, and plaintiff was discharged on July 24, 1981.
Plaintiff thereafter returned to Dr. Stanley with the same symptoms and complaints. On August 17, 1981, plaintiff was admitted to Harper Grace Hospital with a diagnosis of parotid wound infection. According to plaintiff, a note written by Dr. Stanley on plaintiff’s hospital chart on August 17, 1981, indicated that the results of the tuberculosis test were pending and authorized the hospital staff to administer a second tuberculosis test. The second test was performed on August 22, 1981. Surgery was again performed on August 25, 1981, and, based on the results of the pathology report, plaintiff was diagnosed on August 28, 1981, as suffering
Plaintiff filed this action on June 30, 1983, alleging that defendants were negligent in treating him for an abscess rather than tuberculosis. Specifically, plaintiff alleged negligence in defendants’ failure to: (1) obtain and maintain appropriate medical records, (2) properly diagnose plaintiff’s condition during his hospitalization at Detroit Receiving Hospital, (3) administer proper diagnostic tests, (4) refer to the results of the tuberculosis test prior to performing surgery, (5) refrain from performing unnecessary surgery and (6) provide adequate postoperative care.
All of the defendants answered the complaint and discovery proceeded. Although all parties were required under local court rule to submit their witness lists no later than December 30, 1984, plaintiff did not submit his list until March 19, 1985. Wayne Circuit Court Rule 2.301(4) (rescinded, effective March, 1986). Defendant Stanley moved to strike plaintiff’s witness list as untimely, and an order granting the motion was entered by the assigned pretrial judge on May 14, 1985. The order was granted without prejudice to "plaintiff’s right to seek relief from the Chief Judge of the Wayne County Circuit Court.” On May 22, 1985, plaintiff’s motion to submit a late witness list was denied. His motion for rehearing was denied by order of May 28, 1985.
On December 18, 1985, defendant Stanley filed a motion for summary disposition, which motion was subsequently joined in by the remaining defendants. Following oral argument on January 24, 1986, before the assigned pretrial judge, defendants’ motion for summary disposition was granted on the ground that plaintiff would be
Initially, we reject plaintiffs procedural challenges to the order of summary disposition as lacking in merit. While it is true that defendants failed to identify the specific subrule under which they sought summary disposition, it is apparent from the written motions and from oral argument that defendants’ motion was at all times premised on plaintiffs inability to establish a prima facie case of medical malpractice because of the lack of expert testimony. Plaintiff could not have been confused or misled in defending against defendants’ motion, and, indeed, our review of the pleadings and transcript reveals that plaintiff clearly understood the issue before the court. Compare Wells v Firestone Tire & Rubber Co, 421 Mich 641, 646, n 1; 364 NW2d 670 (1984), where the designations summary and accelerated judgment were confused, with Hankins v Elro Corp, 149 Mich App 22, 25-26; 386 NW2d 163 (1986), where the confusion involved the subrules under the former summary judgment court rule, GCR 1963, 117.2. Moreover, since defendants’ motion rests entirely on the pleadings, the lack of impartiality in defendants’ affidavits is irrelevant to our review and disposition of this case.
Plaintiff raises several additional arguments challenging the order of summary disposition on its merits. We first hold that plaintiff is required to provide expert testimony in order to establish his prima facie case of medical malpractice against the defendants. Rice v Jaskolski, 412 Mich 206, 211; 313 NW2d 893 (1981). Plaintiff argues that this case fits within the exception to the rule
We do not agree with plaintiffs position. Even if we were to conclude that an ordinary lay person is competent to determine whether defendants’ failure to follow up on the initial diagnosis of tuberculosis falls below a professional standard of practice, expert testimony is nevertheless necessary to determine the course of treatment called for under the applicable standard of care once tuberculosis was suspected and to determine the extent to which defendants deviated from that standard in treating this plaintiff. For example, one of defendants’ positions is that surgery on plaintiffs abscess was a necessary part of any treatment of the underlying condition. We are not persuaded that an ordinary lay person is qualified to evaluate defendants’ actions in light of the applicable standard of care without the assistance of medical expert testimony. Absent such testimony, it is clear that plaintiff will be unable to establish his prima facie case of medical malpractice should the case proceed to trial.
Plaintiff responds that, even if expert testimony was required at trial, the order of summary disposition was premature because the judge assigned to try the case might have granted plaintiff the opportunity to call his witnesses on plaintiffs renewed motion and for good cause shown. We
Plaintiff also responds that he could have established his prima facie case of medical malpractice through the testimony of the parties alone, including the individual defendants. However, plaintiff has no right to call Drs. Stanley or Levine as expert witnesses during his presentation of the case, since neither physician had been named in a timely filed witness list. See Beattie v Firnschild, 152 Mich App 785, 794; 394 NW2d 107 (1986), where we noted that defendants have the right to some notice in the event that they are to be called to testify against themselves.
Given the pretrial rulings made below, it is clear that plaintiff would have been unable to support his claims of medical malpractice against defendants at trial. The trial court did not err, therefore, in granting summary disposition under MCR 2.116(0(10).
Affirmed.
Dissenting Opinion
(dissenting). I dissent for the reason that I believe plaintiff should be given the opportunity at trial to establish his prima facie case of medical malpractice through the testimony of the individual defendants. In Beattie v Firnschild, 152 Mich App 785; 394 NW2d 107 (1986), cited in the majority opinion, it appears that the defendant had no knowledge before trial that he was to be called as an expert witness. In the instant case defense counsel was put on notice
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