Barnett v. Hidalgo
| Decision Date | 30 May 2007 |
| Docket Number | Docket No. 130071.,Docket No. 130073. Calendar No. 2. |
| Citation | 732 N.W.2d 472,478 Mich. 151 |
| Parties | Wapeka B. BARNETT, Personal Representative of the Estate of James O. Barnett, III, Deceased, Plaintiff-Appellee, v. Cesar D. HIDALGO, M.D., Cesar D. Hidalgo, M.D., P.C., Defendants-Appellees, and Renato Albaran, M.D., and Renato Albaran, M.D., P.C., Defendants-Appellants, and Muskesh S. Shah, M.D., Oncology & Hematology of Oakland, P.C., Crittenton Hospital, and Crittenton Corporation, Defendants. Wapeka B. Barnett, Personal Representative of the Estate of James O. Barnett, III, Deceased, Plaintiff-Appellee, v. Cesar D. Hidalgo, M.D., Cesar D. Hidalgo, M.D., P.C., Defendants-Appellants, and Renato Albaran, M.D., and Renato Albaran, M.D., P.C., Defendants-Appellees, and Muskesh S. Shah, M.D., Oncology & Hematology of Oakland, P.C., Crittenton Hospital, and Crittenton Corporation, Defendants. |
| Court | Michigan Supreme Court |
Sommers Schwartz, P.C. (by Charles R. Ash, III, and Richard D. Toth), Southfield, for the plaintiff.
Grier & Copeland, P.C. (by Rhonda Y. Reid Williams), Detroit, for Cesar D. Hidalgo, M.D., and Cesar D. Hidalgo, M.D., P.C.
O'Connor, DeGrazia, Tamm & O'Connor, P.C. (by Julie McCann O'Connor and James E. Tamm), Bloomfield Hills, for Renato Albaran, M.D., and Renato Albaran, M.D., P.C.
Thomas A. Biscup, Shelby Township, for amicus curiae Michigan Trial Lawyers Association.
We granted leave to appeal to consider the following issues: (1) whether the trial court committed error requiring reversal by admitting affidavits of merit as substantive and impeachment evidence; (2) whether the trial court committed error requiring reversal by allowing the jury to consider affidavits of merit that referenced a settling defendant; and (3) whether the trial court committed error requiring reversal in this case by admitting the deposition of a settling defendant as substantive evidence.
We reverse the judgment of the Court of Appeals because of its determinations regarding each of these issues. Regarding the first issue, we hold on the basis of MRE 801(d)(2)(B) and (C) and MRE 613 that the affidavits of merit were properly admitted as substantive evidence because they constitute admissions by a party opponent, and as impeachment evidence because they constitute prior inconsistent statements of witnesses. Regarding the second issue, we hold on the basis of MCL 600.2957 and MCL 600.6304 that the parties were permitted to refer to the involvement of nonparties and, therefore, the jury could have considered the affidavits of merit that referenced a settling defendant. Regarding the third issue, we hold that even if the deposition in this case was improperly used as substantive evidence, the error was harmless because the information was alternatively introduced through other permissible means.
In this medical malpractice case, the decedent, James Otha Barnett, III, died from a rare blood disorder after undergoing gall bladder surgery performed by defendant Dr. Renato Albaran, a general surgeon at defendant Crittenton Hospital. After surgery, Albaran detected Barnett's low blood-platelet count. The most common cause of a low platelet count after surgery is disseminated intravascular coagulation (DIC) from postsurgical infection. Albaran consulted with defendant Dr. Muskesh Shah, a hematologist, and ordered a DIC screen to rule out postsurgical infection as a cause of Barnett's low platelet count. Shah concluded that Barnett was suffering from an exacerbation of a preexisting platelet disorder, idiopathic thrombocytopenic purpura (ITP), and not from DIC. Because there was no evidence of internal bleeding or postsurgical infection, and because he felt that Shah had provided a reasonable explanation for the low platelet count, Albaran indicated that Barnett could be discharged after he was cleared for release by Shah.
Two days after being discharged from the hospital, Barnett returned with complaints of disorientation. Dr. William Bowman, the attending physician, consulted with Albaran, who concluded that there were no surgery-related problems. Bowman also consulted with defendant Dr. Cesar Hidalgo, a neurologist, who initially concluded that Barnett had suffered a stroke. At Hidalgo's recommendation, Bowman consulted with Shah regarding the low-platelet condition, and a second DIC screen was ordered, but the results were not received until after Barnett passed away. After a computerized tomography (CT) scan indicated that Barnett had not suffered a stroke, Hidalgo recommended further testing, including a magnetic resonance imaging (MRI) evaluation, but Barnett died before the tests could be performed. It turned out that Barnett suffered from a rare clotting disorder, thrombotic thrombocytopenic purpura (TTP), that required immediate blood plasma infusions and transfusions. If left untreated, as it was here, TTP is nearly always fatal.
As the personal representative of the estate of her deceased husband, plaintiff Wapeka Barnett filed a medical malpractice action against Albaran and his professional corporation, Hidalgo and his professional corporation, Shah and his alleged employer Oncology & Hematology of Oakland, Crittenton Hospital, and Crittenton Corporation. Plaintiff's affidavits of merit were signed by a general surgeon, Dr. Scott Graham; a neurologist, Dr. Eric Wassermann; and a hematologist, Dr. Rachel Borson. Graham's affidavit of merit stated that Albaran failed to take sufficient precautions to prevent a postsurgical infection before he discharged Barnett. Wassermann's affidavit of merit stated that Hidalgo misdiagnosed Barnett's condition as a stroke and failed to take proper precautions when Barnett was transferred to a different medical facility for the MRI testing. Finally, Borson's affidavit of merit stated that Shah should have performed further testing, should have stabilized Barnett before discharging him from the hospital, and should have diagnosed TTP and initiated treatment.
Before trial, plaintiff settled with Crittenton Hospital, Crittenton Corporation, Shah, and Oncology & Hematology of Oakland. Albaran filed a motion for leave to file notice of nonparty fault pursuant to MCR 2.112(K), which the trial court initially granted. When Hidalgo filed a similar motion, the trial court adopted plaintiff's position that the court rule was inapplicable in medical malpractice cases, because liability remains joint and several, and denied both Hidalgo's and Albaran's motions.
At trial, the testimony of plaintiff's three experts differed from their statements in their depositions and affidavits of merit. They stated that as part of their preparation for trial they had reviewed the hospital records and the doctors' depositions and that Albaran and Hidalgo had violated standards of care by, among other reasons, failing to review and follow up on blood tests, and failing to diagnose or recognize TTP. Albaran and Hidalgo sought to establish that, as a general surgeon and a neurologist respectively, they could not be expected to diagnose TTP, which is purely a blood disorder, and that Shah, as the hematologist, was the doctor responsible for such a diagnosis. Graham conceded that he no longer believed that Albaran had violated the standard of care with regard to protecting Barnett against postoperative infection. However, Graham stated that it was inexcusable that neither Albaran nor Shah had reviewed the results of Barnett's DIC screen. In response, defense counsel examined Graham with regard to the depositions of Albaran and Shah, where both testified that they had reviewed the DIC screen results. Albaran testified that he had reviewed the DIC screen results, that he had complied with the appropriate standard of care by requesting a hematology consultation, and that he had reasonably relied on Shah's assessment of Barnett's condition. Similarly, Hidalgo argued that he had reasonably relied on Shah's diagnosis and that Bowman, the attending physician, had been responsible for ordering a hematology consultation.
At the outset of trial, plaintiff moved to exclude the admission of her experts' affidavits of merit for any purpose and to exclude any reference to the fact that Shah had settled. The remaining defendants agreed that they would not mention the settlement at trial. Plaintiff and Albaran also agreed that Shah's deposition would not be read to the jury and that, in return, plaintiff would not read to the jury the deposition of one of the defense experts, in lieu of their live testimony at trial. The trial court admitted plaintiff's affidavits of merit as substantive evidence, including the ones referring to Shah, and permitted defense counsel to cross-examine plaintiff's experts regarding the differences between the affidavits of merit and their trial testimony. The jury found in favor of defendants, and plaintiff filed a motion for a new trial, which the trial court denied.
Plaintiff appealed by right, claiming that she was entitled to a new trial because the admission of the affidavits of merit as substantive and impeachment evidence, together with the use of Shah's deposition, denied her a fair trial. The Court of Appeals agreed and reversed the trial court's judgment. 268 Mich.App. 157, 163, 706 N.W.2d 869 (2005). First, the Court of Appeals held that the admission of the affidavits of merit that referenced Shah and listed Shah as a defendant was improper under Brewer v. Payless Stations, Inc., 412 Mich. 673, 316 N.W.2d 702 (1982), and Clery v. Sherwood, 151 Mich. App. 55, 390 N.W.2d 682 (1986), because it allowed the jury to speculate about a possible settlement. Second, the Court held that the affidavits of merit constituted inadmissible hearsay that could not be used as substantive evidence. Third, the Court held that the affidavits of merit were inadmissible as impeachment evidence because they were not...
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