One Court of Justice

The Michigan Court of Appeals published its per curiam opinion on August 12, 2010 in Dawe v. Dr. Reuvan Bar-Levav & Assocs., P.C., No. 269147, on remand from the Michigan Supreme Court.  The Supreme Court reversed the Court of Appeals™ original opinion and held that a patient may pursue a common-law, medical-malpractice claim against her treating mental-health professional if the professional negligently placed the patient in danger of harm from another patient.  Our discussion of the Michigan Supreme Court™s March 30, 2010 decision remanding the case to the Court of Appeals can be found here.

On remand, the Court of Appeals largely adopted Judge Smolenski™s dissent in the earlier Court of Appeals™ opinion and concluded that defendant psychiatrists owed a duty of care to their patient to protect her from harm by a third party.  Further, the Court of Appeals held that a reasonable jury could conclude that the defendants proximately caused the plaintiff™s injuries “ being shot by defendants™ former patient with whom she had been placed in group therapy. The defendants knew or should have known that the former patient would form improper emotional attachments to persons in his group therapy and that he might seek to harm those persons and therefore should not have placed the former patient in group therapy. Read more »

On July 29, 2010, the Michigan Court of Appeals released its published opinion in Estate of Jilek v. Stockson, No. 289488.  Daniel Jilek sought treatment at Maple Urgent Care Center complaining of sinus and respiratory congestion, and chest tightness.  Dr. Stockson, board certified in family practice medicine, was the treating physician.  Five days after treatment, Jilek died of heart attack, which occurred as a result of Jilek™s coronary artery disease.  Jilek™s estate sued Dr. Stockson for negligently failing to diagnose the coronary artery disease, arguing that if she had discovered the condition, Jilek would have received proper treatment and his death would have been prevented.  The trial court instructed the jury that the applicable standard of care was that of a physician specializing in family practice and working in an urgent care center.  The trial court also refused to admit several documents describing the internal policies of the Maple Urgent Care Center.  The jury rendered a verdict in favor of Dr. Stockson.  Jilek™s estate appealed, arguing that the trial court applied the improper standard of care and erred in refusing to admit the internal policies.  The Court of Appeals agreed, and reversed and remanded for a new trial.  Read more »

Plaintiff filed this medical malpractice action against her OB/GYN, claiming a decrease in her chance of survival due to a year-and-a-half delay in diagnosing her breast cancer, after a node was detected during a routine examination in June 2003. The parties’ experts agreed that Plaintiff would have had a 95% chance of survival if she had been diagnosed in June 2003.  Plaintiff’s expert testified that her survival rate had decreased to 20% by the time she was actually diagnosed in February 2005. 

The trial court found that Plaintiff’s expert’s opinion was not sufficiently reliable to be admissible under MRE 702 and excluded it because it was not based on reliable principles or methods, was contradicted by published literature on the subject, and was not supported by any literature other than inapposite Internet material.  The trial court granted Defendants’ motion to dismiss, which argued that without Plaintiff’s expert’s testimony, she could not meet her burden of proof to show a greater than 50% loss of the opportunity to survive, as required by MCL 600.2912a(2). 

In a 5-2 opinion issued on July 22, 2010, the Michigan Supreme Court affirmed the Court of Appeals judgment that the trial court did not abuse its discretion by excluding Plaintiff™s expert™s testimony, and that because Plaintiff failed to provide sufficient evidence to support her claims, summary disposition was proper.  Further, the Michigan Supreme Court determined that the exclusion of Plaintiff’s expert’s testimony was dispositive of the outcome in this case, and declined to revisit its decision in Wickens v. Oakwood Healthcare System, 465 Mich 53; 631 NW2d 686 (2001), which held that ”a living person may not recover for loss of an opportunity to survive. 

Justices Hathaway and Weaver dissented.  The dissent argued that the trial court focused only on one enumerated criterion of MCL 600.2955 to evaluate the reliability of Plaintiff™s expert.
We previously discussed this case here. 

Disclaimer: WNJ submitted an amicus curiae brief on behalf of the Michigan Health & Hospital Association in support of the prevailing Appellees in this case.

On June 3, 2010, the Michigan Court of Appeals published its opinion in Hoffman v. Barrett, No. 289011.  Decedent’s estate and personal representative brought a malpractice claim against defendant-physician for providing negligent emergency-room treatment.  The trial court dismissed the plaintiff’s claim without prejudice for failure to file an adequate affidavit of merit under MCL § 600.2912d.  The Court of Appeals affirmed.

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On May 25, 2009, the Michigan Supreme Court published its decision in DeCosta v. Gossage, No. 137480.  In a plurality opinion authored by Justice Weaver and joined by Justice Hathaway (with Justices Kelly and Cavanagh concurring in the result), the Court found that the notice of intent to sue on a medical-malpractice claim, sent by plaintiff to defendant’s prior business address effectively tolled the limitations period, and the Court of Appeals erred by affirming the dismissal of plaintiff’s complaint on the statute of limitations.  The relevant statute provided that “[t]he notice of intent to file a claim . . . shall be mailed to the last known professional business address.”  MCL § 600.2919b(2).  Additionally, the Legislature has provided for the tolling of the limitations period where a timely notice of intent is given.  MCL § 600.5856(c)  In this case, the plaintiff mailed the notice of intent before the limitation period expired, but defendant received it (forwarded from prior address) three days after the limitations period expired.  Justice Weaver reasoned that even if the notice was not sent to the correct address at the time, it was a minor defect which did not effect any party’s substantial rights.  Additionally, she noted that the statute does not require receipt of a notice of intent before the limitations period expired, therefore the date of mailing was the key date and the date of receipt was irrelevant.  Justice Markman, joined by Justices Corrigan and Young, dissented, arguing that the statute explicitly required the notice be sent to the last-known business address.  Here, plaintiff had visited defendant’s new location and the events underlying the alleged malpractice took place at the new location.  The dissent argued that the Court’s ruling created a situation where the period of limitations would be tolled “as long as an improperly addressed notice was mailed before the limitations period expired and the notice is eventually received by a defendant.”

On May 20, 2010, the Michigan Court of Appeals published its opinion in Jones v. Detroit Medical Center, No. 288710.  The decedent-plaintiff Jones was involved in a car accident.  He received treatment in the emergency room from the defendant-doctor Watson.  Watson diagnosed Jones with a seizure disorder and prescribed the drug tegretol.  Later, Jones suffered a rare allergic reaction to tegretol and eventually died.  Jones’ estate sued Watson for malpractice, arguing two theories: (1) Watson negligently did not warn Jones about the possibility of this reaction, even though it was well known; and (2) Watson negligently diagnosed Jones with a seizure disorder that Jones did not have.  The trial court granted Jones summary disposition on the question of proximate cause.  The Court of Appeals affirmed.

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In First Industrial, L.P. v. Department of Treasury, No. 139748, the Michigan Supreme Court unanimously reversed the Court of Appeals’ decision in lieu of granting the application for leave.  The Court concluded that the Court of Appeals failed to give respectful consideration to the long-standing policy of the Department of Treasury regarding the carryover of business losses under the now-repealed Single Business Tax Act.  The Court reinstated the decision of the Court of Claims which held, consistent with the Department of Treasury’s published policy, that a business is only entitled to a carryover of a predecessor’s entity’s business losses after an asset transfer if the predecessor entity has ceased all operations and rejecting the plaintiff’s argument that the cessation of operations in Michigan is sufficient.

The Court also denied leave to appeal in Esselman v. Garden City Hospital, No. 139288, a medical malpractice action.  The case is noteworthy only for the unusual alignment of justices.  The decision sparked a strongly worded dissent from Justice Young accusing the majority of countenancing a departure from the standard for Notices of Intent set forth in Roberts v. Mecosta County Hospital, 470 Mich. 679 (2004).  Justice Young’s dissent was joined by Justice Corrigan.  Chief Justice Kelly replied with an equally strongly worded concurrence rejecting Justice Young’s criticism.  Interestingly, Justice Markman issued a concurrence in which he distinguished the Court of Appeals’ decision from Roberts, but Justice Weaver indicated that she would have granted leave.  Thus, Justices Corrigan, Weaver, and Young would have granted leave, but Justice Markman voted with Chief Justice Kelly and Justices Cavanagh and Hathaway to deny leave.

On Friday, April 2, 2010, the Michigan Supreme Court ordered oral argument on the application (or miniature oral argument (“MOA”)) in three medical malpractice cases and remanded one case to the Court of Appeals to address the reporting requirements under the child protection law.  The Court also denied leave to appeal in five cases, denied reconsideration in two cases, and dismissed one case on the stipulation of the parties.

The ordered MOAs are to be heard on the same day in Ykimoff v. W.A. Foote Memorial Hospital, No. 139561, and Martin v. Ledingham, No. 138636.  Both cases involve the standard of proving causation in a medical malpractice action arising from the purported failure of nurses to promptly report patients’ worsening conditions to the treating physicians.  In Martin, the Court of Appeals concluded that the trial court properly granted summary disposition against the plaintiff’s claims because the evidence showed that the doctors would not have changed the patient’s treatment even if they had received earlier notice of the patient’s worsening condition.  In Ykimoff, the Court of Appeals affirmed the trial court’s denial of a motion for JNOV in three separate opinions, concluding that the doctor’s testimony that earlier notice of the patient’s worsening condition would not have affected treatment was speculative and therefore the issue of causation was appropriate for submission to a jury.  Our earlier post on Ykimoff is here.  The Michigan Association of Justice submitted an amicus brief in support of the application in Ykimoff.

In Robelin v. Spectrum Health Hospitals, No. 139860, the Court ordered a MOA to address whether the testimony of Dr. Gabriel, plaintiff’s causation expert, met the Daubert/Gilbert standard embodied in MRE 702 and MCL § 600.2955.  The Court of Appeals concluded that although Dr. Gabriel’s theory is novel and not widely accepted within the scientific community, it was sufficiently reliable as an application of the “Sherlock Holmes methodology,” i.e. “once all impossibilities are filtered out, whatever remains, irrespective of its improbability, must be the truth.”  The Michigan Supreme Court invited the Michigan Association for Justice, the Michigan Defense Trial Counsel, and the Michigan State Medical Society to submit amicus briefs.

Finally, in Doe v. Doe, No. 139896, the Michigan Supreme Court partially vacated the decision of the Court of Appeals and remanded the case for the Court of Appeals to reconsider the application of the reporting requirements under the child protection law, MCL § 722.623(1)(a).  The Court of Appeals concluded that the trial court correctly concluded that a genuine issue of material fact existed regarding whether defendants fulfilled their statutory obligation to “immediately” report child abuse.

On March 30, 2010, the Supreme Court issued a unanimous decision in Dawe v. Dr. Reuven Bar-Levav & Assocs., P.C., No. 137092, holding that a patient may pursue a common-law, medical-malpractice claim against his or her treating mental-health professional if the professional negligently placed the patient in danger of harm from another patient. The question before the Court was whether MCL § 330.1946 completely abrogated the common-law duty of a mental-health professional to warn or protect others, including patients. In an opinion written by Justice Cavanagh, the Court held that by enacting MCL § 330.1946, the Legislature only intended to limit, not to completely abrogate, the common-law duties of mental-health professionals toward patients based on the “special relationship” between them. A copy of the Court’s opinion can be found here. Read more »

On March 30, 2010, the Court of Appeals published its unanimous opinion in the consolidated cases of Decker v. Rochowiak, Nos. 284155, 285870, and 290633.  In this medical-malpractice case, plaintiff alleges that defendants failed to properly care for, evaluate, treat, and monitor an infant baby’s hypoglycemic condition, which resulted in his injuries.  The Court of Appeals affirmed the trial court’s order granting plaintiff leave to amend the complaint and order denying defendants’ motion for summary disposition.

The plaintiff filed a complaint after serving a notice of intent (NOI) on defendants pursuant to MCL § 600.2912b.  A year and a half later, the plaintiff filed an amended complaint to include 17 allegations of specific ways in which the defendants breached the applicable standards of care.  The Court of Appeals rejected the defendants’ argument that the plaintiff asserted new “theories of malpractice liability” that should be dismissed for lack of notice.  The Court of Appeals determined that the plaintiff did not assert any “new” potential causes of injury.  The Court of Appeals concluded that the purpose of the notice requirement—to promote settlement without litigation—was realized here because the defendants were given notice of the same claims in the NOI and had the opportunity to enter into settlement negotiations regarding those claims.

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On March 2, 2010, the Court of Appeals issued a per curiam opinion in Driver v. Cardiovascular Clinical Associates, P.C., No. 280844, reversing the lower court’s denial of summary disposition, and remanded for entry of summary disposition in favor of Defendant Cardiovascular Clinical Associates, P.C. (CCA).  The patient was diagnosed with colon cancer in November 2005, and brought this medical malpractice action claiming that his doctor failed to refer him for a colonoscopic examination. 

Medical malpractice claimants must give proposed defendants notice of intent to sue, and the notice must be given at least 182 days prior to commencing an action.  MCL § 600.2912b(1).  If a plaintiff files a complaint before the expiration of the notice period, the medical malpractice action is not commenced. Read more »

On Wednesday February 17, 2010, the Michigan Supreme Court denied one motion by a prisoner seeking a waiver of filing fees and administratively closed the case of Howard v. Department of Corrections, Case No. 139966, for failure of the plaintiff-appellant to pay the partial filing fee. 

Additionally, in lieu of granting leave to appeal the Court vacated the judgment of the Court of Appeals and remanded the case of Griesbach v. Ross, Case No. 136731, to the Oakland County Circuit Court for reconsideration in light of the Court’s decisions in Bush v. Shabahang, 484 Mich. 156 (2009) and Potter v. McLeary, 484 Mich. 397 (2009).  Our post on Bush can be found here and our summary of Potter is here.  Justice Young dissented arguing that the plaintiff does not meet the requirements of MCL § 600.2912b(3), and therefore is not entitled to the additional notice period provided by that statute, and that both Bush and Potter are inapplicable to this case.  The Court’s Order can be found here.

On Friday, January 29, 2010, the Court cleared its docket by denying leave to appeal in 137 cases and denying reconsideration in an additional 22 cases.   The Court granted leave in three cases which are addressed in a separate post.  The Court held People v. Wilkinson in abeyance pending the Court’s resolution of People v. Feezel.  The Court remanded the following cases:

People v. Hicks:  In a case involving egregious evidence of child sexual abuse, the Court vacated the portion of the Court of Appeals’ decision requiring the case to be assigned to a new circuit judge for re-sentencing but otherwise denied leave to appeal.  Justices Corrigan and Weaver would have reversed the Court of Appeals’ decision in its entirety because they believed that the circuit court had adequately justified a significant upward departure from the sentencing guidelines.  Warning—Justice Corrigan’s dissent contains an explicit description of the defendant’s conduct. 

Duskin v. Department of Human Services:  The Court vacated the Court of Appeals’ judgment and remanded the case to the trial court for reconsideration of that court’s class-certification order in light of the Michigan Supreme Court’s decision in Henry v. Dow Chemical Co.  Justices Corrigan and Young dissented because they believed that the Court’s decision in Henry would not change the correct result—denial of class certification.

People v. Gilmore:  The Court remanded the case so that the Wayne County Circuit Court could address the defendant’s motion to disqualify the judge before addressing the defendant’s motion for relief from judgment.

People v. Barbarich:  In lieu of granting leave to appeal, the Court remanded the case to the Court of Appeals as on leave granted.  Justice Cavanagh would have denied leave to appeal.

The Court entered an order clarifying its October 22, 2009 order remanding Shember v. University of Michigan Medical Center to the Court of Appeals for reconsideration in light of Bush v. Shabahang. 

The Court also ordered the Oakland County Prosecutor to respond to the application for leave in People v. Mathis to address whether the defendant had established cause in prejudice under MCR 6.508(D) in the event the defendant had identified scoring error in his criminal sentence.

On January 8, 2010, the Michigan Supreme Court peremptorily resolved two cases, denied leave to appeal in three cases, and ordered oral argument on the application in one case.  People v. Smelley is addressed in a separate post.  The remaining cases in which the Court took substantive action are addressed below.

In the apparently inaptly titled action Friend v. Friend, the Michigan Supreme Court ordered a MOA to address, among other issues, whether the Court should adopt the fugitive-disentitlement doctrine to dismiss the defendant mother’s appeal because she has failed to comply with counseling and parenting-time provisions in the parties’ divorce judgment and then refused to appear for hearing in contempt of a court order.  The Court invited the Family Law Section of the State Bar of Michigan and the Michigan Chapter of the American Academy of Matrimonial Lawyers to submit amicus briefs.  Read more »

On December 22, 2009, the Court of Appeals published its per curiam opinion in Taylor v. Kent Radiology, PC, No. 286078, affirming a verdict in favor of Plaintiffs in this medical-malpractice case.  Plaintiff fell off a ladder and injured his foot while working at his business, which sets up and finishes mobile and modular homes.  Plaintiff visited his family physician in December 2003 and was diagnosed with a sprained foot/ankle.  Days later, Plaintiff returned to his family physician, complaining of continued pain in his foot.  His family physician sent him to the hospital for an x-ray.  The radiologist that examined the films at the hospital reported that he saw “no evidence of fracture.”  From December 2003 through March 2004, Plaintiff saw his family physician for continued foot pain.  His family physician eventually suggested that Plaintiff visit an orthopedic surgeon, where he had new x-rays taken.  The orthopedic surgeon’s office informed Plaintiff that he had a broken talus, and Plaintiff underwent ankle surgery.  The delayed diagnosis made the first surgery more difficult and made a second surgery necessary.  Plaintiff sued the radiologist for breaching the standard of care applicable to a radiologist by failing to diagnose the broken talus.  The case proceeded to trial, and the jury returned a verdict in favor of Plaintiffs.  The Court of Appeals concluded that there were no errors warranting relief, and affirmed the verdict.  Judge Kelly concurred in result only. Read more »

On October 23, 2009, the Michigan Supreme Court denied six applications for leave to appeal, and remanded five cases:  two to trial court, two to the Court of Appeals, and one as on leave granted.  The remanded cases are discussed after the jump. Read more »

In Zwiers v. Growney, No. 286828 (published Oct. 22, 2009), the Michigan Court of Appeals reversed dismissal of a medical malpractice claim where the plaintiff filed her complaint one day before the expiration of the 182-day no-suit period of MCL § 600.2912b.  The Court held that MCL § 600.2301, which allows the courts to disregard or correct errors when they “affect the substantial rights of the parties,” empowered the Court to correct the one-day defect in plaintiff’s filing.  The Court’s opinion may be found here.

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On October 21, 2009, the Michigan Supreme Court denied five applications for leave to appeal, denied one motion for reconsideration, adjourned oral argument in Pellegrino v. Ampco Systems Parking, Case No. 137111, and ordered the argument rescheduled on a future session calendar, granted one motion to extend the deadline for appellee to file its brief, and granted the motion of John A. Braden to file a brief amicus curiae in McCormick v. Carrier, Case No. 136738.  The Court also took substantive action in two criminal and three civil cases, which are discussed after the jump. Read more »

On October 8, 2009, the Court of Appeals approved for publication its decision in Lockridge v. Oakwood Hospital, Nos. 283522 and 284664, originally released on August 20, 2009.  The Court of Appeals affirmed a medical malpractice jury verdict against a hospital and emergency room physician for failure to diagnose a 14-year-old boy with aortic dissection.  The patient was taken to the emergency room after he suffered chest pain, difficulty breathing, vomiting, and collapse.  The physician concluded the patient suffered from anxiety and hyperventilation and treated him with valium and an analgesic.  The boy died in his sleep that evening.  On appeal, the defendants argued they had no duty as a matter of law to diagnose the patient’s condition because it was unforeseeable in a pediatric patient.  The Court of Appeals concluded the physician owed a duty to conform to the standard of care.  In this case, the standard of care required ordering a chest x-ray, which likely would have revealed the condition.  In a typical negligence case, the plaintiff need not show that the specific injury was foreseeable, so long as the evidence establishes that some injury was foreseeable.  On the issue of causation, the Court of Appeals stated that the issue is not whether the patient’s actual ailment is foreseeable, “but whether the patient’s injuries and damages arising from the missed diagnosis qualify as a ‘natural and probable result of’ the defendant’s negligent conduct.”  Slip. Op. at 6

In Ellout v. Detroit Medical Center, No. 286207 (published Oct. 8, 2009), the Michigan Court of Appeals considered the appropriate remedy where the plaintiff fails to follow the 154/182-day no-suit period of MCL § 600.2912b, which governs medial malpractice claims.  The Court held that the appropriate remedy was dismissal without prejudice.  The Court’s opinion may be found here.  Judge Kelly dissented, and her opinion may be found here.

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