Hoffman v. Barrett
Hoffman v. Barrett
Opinion of the Court
Defendant appeals as of right the dismissal without prejudice of plaintiffs medical malpractice action. Defendant moved for summary disposition, asserting that plaintiffs notice of intent to file her claim and affidavit of merit were deficient. Plaintiff conceded that the affidavit of merit was defective. The trial court found that the notice of intent “could be better, but [is] adequate,” and therefore granted summary disposition without prejudice. This Court reviews de novo a trial court’s interpretation of a statute and decision on a motion for summary disposition. Esselman v Garden City Hosp, 284 Mich App 209, 215-216; 772 NW2d 438 (2009). Defendant contends that dismissal should have been with prejudice. We disagree, and we affirm.
The decedent, Edgar Brown, fell from the roof of his house onto a cement driveway on January 13, 2001, and he was taken to the emergency room at Battle Creek Health Systems
The malpractice presumably happened on or before January 24, 2001. There is a two-year statutory limitations period, and an additional possible three years under the “saving provision.” The limitations period is tolled if a complaint is filed with a defective affidavit of merit, but the saving period is not. The limitations period would have expired on, at the latest, January 24, 2003. Suit was filed on October 16, 2003, so the limitations period had already expired and could not thereafter be tolled. The saving period,
But, as observed, this case was filed after Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), was decided, and the saving period expired
Plaintiff conceded that the affidavit of merit was defective. Nevertheless, filing a complaint and an affidavit of merit — even a defective one — tolls the limitations period until the affidavit is successfully challenged. Kirkaldy v Rim, 478 Mich 581, 585-586; 734 NW2d 201 (2007). After our Supreme Court’s transmutation of the extended limitations period in MCL 600.5852 into a “saving period,” see Waltz, 469 Mich at 662-672 (CAVANAGH, J., dissenting), the saving period would not be so tolled. Ligons, 285 Mich App at 353-354. However, again, Waltz does not apply to this matter. Pursuant to Omelenchuk, Mullins II, and a rational reading of MCL 600.5852 as providing a limitations period, the running of the additional time provided by that statute would have been tolled here by the filing of the complaint and affidavit of merit. Filing the notice of intent on March 3, 2003, tolled the saving period for 182 days, but there were in addition 146 days remaining in the saving period at that time. When this
Defendant next argues that the notice of intent was insufficient because it failed to contain a statement explaining the manner in which defendant’s alleged breach of the standard of care resulted in plaintiffs decedent’s injuries.
Under MCL 600.2912b, commencement of a medical malpractice claim requires a plaintiff to provide an advance “notice of intent” to the intended defendant; that notice must provide certain specific pieces of information, although no particular format is required. Ligons, 285 Mich App at 343. The information in the notice of intent must be provided in good faith, but it need not eventually be proven to be completely accurate. Boodt v Borgess Med Ctr, 481 Mich 558, 561; 751 NW2d 44 (2008). Furthermore, the information need only be detailed enough to “allow the potential defendants to understand the claimed basis of the impending malpractice action,” particularly given that it is being provided before discovery would ordinarily have begun. Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 691, 692 n 7; 684 NW2d 711 (2004). A bare statement that the alleged negligence caused the harm is insufficient, Boodt, 481 Mich at 560, but the entire
Plaintiffs notice of intent provided,
SECTION 2912b NOTICE OF INTENT TO FILE CLAIM
RE: EDGAR BROWN, DECEASED
This Notice is intended to apply to the following healthcare professionals, entities and/or facilities as well as their employees or agents, actual or ostensible, who were involved in the evaluation, care and/or treatment of EDGAR BROWN, DECEASED.
DR. PETER BARRETT, BATTLE CREEK HEALTH SYSTEMS, AND ANY AND ALL PROFESSIONAL CORPORATIONS AND ALL AGENTS AND EMPLOYEES, ACTUAL OR OSTENSIBLE, THEREOF.
I. FACTUAL BASIS OF THE CLAIM
On January 13, 2001, Edgar Brown fell from a ladder and was brought to Battle Creek Health -Systems Emergency Room. He was found to have multiple rib fractures and a right pneumothorax.[8 ] Dr. Peter Barrett was assigned to care for Mr. Brown and he was admitted to the hospital.
A chest tube was inserted and was removed on January 19, 2001. Mr. Brown developed an ileus1[9 ] and a nasogastric tube[10 ] was inserted. Between the time of his admission and his discharge, Mr. Brown continued to have diminished breath sounds. His last chest x-ray was*545 taken on January 20, 2001 and his last abdominal x-ray was taken on January 19, 2001. Mr. Brown was discharged home on January 24, 2001. He had a distended abdomen and was still having difficulty breathing.
Within 24 hours of discharge, Mr. Brown became short of breath while talking, his abdomen remained distended and his daughter called for an ambulance. Mr. Brown went into full arrest in the ambulance. The cause of death was determined to be complications of multiple injuries from [sic]. On autopsy, Mr. Brown was found to have right pulmonary atelectasis[11 ] and right empyema/pleuritis,[12 ] as well as an intestinal ileus.[13 ]
II. APPLICABLE STANDARD OF PRACTICE OR CARE ALLEGED
A reasonable and prudent physician and/or hospital staff would have:
a. Monitored a patient such as Mr. Brown carefully and regularly, including, but not limited to, having performed full diagnostic tests such as regular chest x-rays and abdominal films when the patient was exhibiting pulmonary and gastrointestinal problems.
b. Performed full physical examinations of a patient in circumstances such as Edgar Brown, including respiratory and abdominal assessments on a regular basis.
c. Adequately assessed and intervened for respiratory compromise in a patient such as Edgar Brown.
d. Refrained from discharging a patient such as Edgar Brown without having performed a complete, full and adequate assessment, including all diagnostic tests to make sure that his pulmonary status and gastrointestinal status were stable.
e. Refrained from discharging a patient in the condition of Edgar Brown.
*546 f. Refrained from discharging a patient such as Edgar Brown without appropriate home care follow-up and equipment, including, but not limited to, oxygen.
g. Provided appropriate treatment for a patient such as Edgar Brown who obviously, while in the hospital, continued to have respiratory distress and gastrointestinal problems.
III. THE MANNER IN WHICH IT IS CLAIMED THAT THE STANDARDS OF PRACTICE OR CARE WERE BREACHED
The defendant physician and/or hospital staff did not:
a. Monitor a patient such as Mr. Brown carefully and regularly, including, but not limited to, perform full diagnostic tests such as regular chest x-rays and abdominal films when the patient was exhibiting pulmonary and gastrointestinal problems.
b. Perform full physical examinations of a patient in circumstances such as Edgar Brown, including respiratory and abdominal assessments on a regular basis.
c. Adequately assess and intervene for respiratory compromise in a patient such as Edgar Brown.
d. Refrain from discharging a patient such as Edgar Brown without having performed a complete, full and adequate assessment, including all diagnostic tests to make sure that his pulmonary status and gastrointestinal status were stable.
e. Refrain from discharging a patient in the condition of Edgar Brown.
f. Refrain from discharging a patient such as Edgar Brown without appropriate home care follow-up and equipment, including, but not limited to, oxygen.
g. Provide appropriate treatment for a patient such as Edgar Brown who obviously, while in the hospital, continuing [sic] to have respiratory distress and gastrointestinal problems.
*547 IV THE ACTION THAT SHOULD HAVE BEEN TAKEN TO ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE OR CARE
A reasonable and prudent physician and/or hospital staff should have:
a. Monitored a patient such as Mr. Brown carefully and regularly, including, but not limited to, having performed full diagnostic tests such as regular chest x-rays and abdominal films when the patient was exhibiting pulmonary and gastrointestinal problems.
b. Performed full physical examinations of a patient in circumstances such as Edgar Brown, including respiratory and abdominal assessments on a regular basis.
c. Adequately assessed and intervened for respiratory compromise in a patient such as Edgar Brown.
d. Refrained from discharging a patient such as Edgar Brown without having performed a complete, full and adequate assessment, including all diagnostic tests to make sure that his pulmonary status and gastrointestinal status were stable.
e. Refrained from discharging a patient in the condition of Edgar Brown.
f. Refrained from discharging a patient such as Edgar Brown without appropriate home care follow-up and equipment, including, but not limited to, oxygen.
g. Provided appropriate treatment for a patient such as Edgar Brown who obviously, while in the hospital, continued to have respiratory distress and gastrointestinal problems.
V THE MANNER IN WHICH THE BREACH WAS THE PROXIMATE CAUSE OF CLAIMED INJURY
As a proximate result of the defendants’ conduct, Edgar Brown died prematurely from his injuries.
When the final statement is viewed in isolation, it does in fact amount to no more than a bare statement that the alleged negligence caused the decedent’s injuries.
As was the situation in Esselman, the statement here is not sufficient to provide the requisite notice all by itself, but it is also not a tautology. See id. at 217. A plain reading of plaintiffs notice of intent as a whole does not leave the reader guessing about how the decedent died as a proximate result of defendant’s alleged inaction, at least when some of the technical medical terms are explained. The decedent, while under defendant’s care, was suffering from readily diagnosable life-threatening conditions that inevitably became fatal because defendant simply failed to do anything about those conditions. The manner in which the breach of the standard of care proximately caused the harm is just that simple and straightforward: defendant did not investigate the significance of the decedent’s symptoms and did not discover or properly deal with the causes of those symptoms, and because those causes are fatal if not dealt with, the decedent died. All the required information is plainly apparent from reading the notice of intent as a whole.
Defendant finally argues that plaintiffs expert was not qualified to sign the affidavit of merit or render standard-of-care testimony against him.
Pursuant to MCL 600.2912d(1) and MCL 600.2169, a plaintiff must “file an affidavit of merit signed by a physician who counsel reasonably believes specializes in the same specialty as the defendant physician,” including a reasonable belief that the expert holds an identical board certification as the defendant physician, if the defendant physician is so certified. Gross-man, 470 Mich at 596. Dr. Barrett is board-certified by the American Board of Thoracic Surgery, which defines its specialty as “the operative, perioperative, and surgical critical care of patients with acquired and congenital pathologic conditions within the chest,” including the heart, lungs, airways, and chest injuries.
However, “not all specialties and board certificates must match.” Woodard v Custer, 476 Mich 545, 558; 719 NW2d 842 (2006). Because irrelevant testimony is generally inadmissible, id. at 568-572, the plaintiffs expert need only specialize or be certified in subfields relevant to the expert’s intended testimony, id. at 559. Therefore, a plaintiffs expert need only match “the specialty engaged in by the defendant physician during the
Defendant’s position seems superficially meritorious, because the decedent did suffer injuries to his ribs, the decedent was later determined to have a collapsed lung, and the pleural cavity, from which 850 milliters
At least on the basis of the affidavit of merit, the claims against defendant do not appear to require any
Affirmed.
Battle Creek Health Systems was originally a named defendant, but was dismissed before the summary disposition order at issue in this appeal.
Battle Creek Health Systems was still a defendant at the time of the prior appeal.
In Mullins II, our Supreme Court held that Waltz did not apply to any actions filed after the decision in Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), and before 182 days after the decision in Waltz. Omelenchuk was decided on March 28, 2000, and Waltz was decided on April 14, 2004; the date 182 days later would be October 13,
“Saving period” or “saving provision” is a term created by our Supreme Court. See, e.g., Justice Cavanagh’s dissenting opinion in Waltz, 469 Mich at 662-672.
While we cite this case for several legal propositions conveniently summarized therein, we offer no opinion as to the correctness of Ligons. Ligons is not controlling in this matter because the action in Ligons was filed on April 7, 2006, which, unlike the filing in the instant matter, was more than 182 days after Waltz was decided. Therefore, Waltz was applicable in Ligons but is not applicable here. See footnote 3 of this opinion.
Defendant also argues that the notice of intent failed to separate the standards of care applicable to the different defendants, but because there were only two named defendants, one of which is no longer a party, and because the only articulated failures pertain to Dr. Barrett, we do not believe that the notice is deficient on this basis.
We have added footnotes explaining medical terms used. These definitions have been culled from Stedman’s Medical Dictionary (26th ed); 1 Schmidt, Attorneys’ Dictionary of Medicine (2000 rev); and <http://emedicine.medscape.com> (accessed May 5, 2010).
Abnormal presence of air inside the pleural cavity, which is the membrane-lined cavity in the thorax surrounding the lungs.
An obstruction or blockage of the intestine or bowel.
A tube inserted into the stomach through the nose, used for feeding or for removing fluids.
A collapsed lung.
Empyema is an accumulation of pus in the body cavity. Pleuritis is an inflammation of the lining around the lungs.
Again, an obstruction or blockage of the intestine.
This issue is moot in the instant appeal, given plaintiffs concession that the affidavit of merit was otherwise defective, but we address the
<http://www.abts.org/sections/Definition_of_Thorac/index.html> (accessed May 5, 2010).
Slightly less than S2/s cups.
Necrosis refers to localized death of cells or tissue because of injury or disease, rather than as a result of natural causes.
Cholecystitis is an inflammation of the gallbladder; “acalculous” refers to the absence of stones. Acalculous cholecystitis apparently has a relatively high mortality rate and is commonly observed in patients who have suffered trauma.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.