Barnett v. Hidalgo, Docket No. 255318.
| Decision Date | 13 September 2005 |
| Docket Number | Docket No. 255318. |
| Citation | 268 Mich. App. 157,706 N.W.2d 869 |
| Parties | Wapeka B. BARNETT, Personal Representative of the Estate of James Otha Barnett, III, Deceased, Plaintiff-Appellant, v. Cesar D. HIDALGO, M.D., Cesar D. Hidalgo, M.D., P.C., 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 |
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.
Before: COOPER, P.J., and FORT HOOD and R.S. GRIBBS*, JJ.
Plaintiff1 appeals as of right from a judgment of no cause of action entered in favor of defendants Cesar D. Hidalgo, M.D.; Renato Albaran, M.D.; and their professional corporations, following a jury trial in this wrongful death action based upon medical malpractice. As the trial court committed a myriad of evidentiary errors affecting the outcome of this case, we reverse and remand for further proceedings consistent with this opinion.
On September 16, 1998, plaintiff's decedent, James Otha Barnett, III, was admitted to Crittenton Hospital for emergency gallbladder surgery. Dr. Albaran, a general surgeon, performed the surgery. After surgery, Mr. Barnett's blood platelet count was very low, leading the doctor to be concerned about internal bleeding. Dr. Muskesh S. Shah, a hematologist, determined that Mr. Barnett's platelet count was low because the surgery had exacerbated a preexisting blood disorder known as idiopathic thrombocytopenic purpura (ITP).2 Mr. Barnett's platelet count increased slightly, although it remained significantly below normal when he was released on September 20. However, Mr. Barnett was readmitted two days later after complaining that he could not think clearly. He was examined by Dr. Hidalgo, a neurologist, who initially suspected that Mr. Barnett had suffered a stroke. Dr. Hidalgo asked Dr. Shah to perform a disseminated intravascular coagulation (DIC) screen3 to rule out thrombotic thrombocytopenic purpura (TTP) — a fatal but treatable blood condition in which clots build up in the small vessels of the body, potentially cutting off blood to the brain. These tests were performed, but Mr. Barnett's medical records indicate that the results were never reviewed.4 Dr. Hidalgo subsequently transferred Mr. Barnett to another facility for a magnetic resonance imaging (MRI) examination on September 24, 1998. Mr. Barnett's condition was unstable at the time of the transfer. He went into cardiac and respiratory arrest and died that day. Mr. Barnett's postsurgical difficulties were actually related to the undiagnosed and untreated blood disorder TTP.
Before trial, plaintiff stipulated to the dismissal of Crittenton Hospital and Crittenton Corporation. Plaintiff also settled with Dr. Shah and his professional corporation and stipulated to their dismissal. Dr. Albaran and Dr. Hidalgo sought to file notices of nonparty fault pursuant to MCR 2.112(K), as they alleged that Dr. Shah was wholly at fault for Mr. Barnett's death. The trial court found that the parties were jointly and severally liable and, therefore, denied the doctors' motions.5 At the close of trial, the jury, by special verdict, found that neither Dr. Albaran nor Dr. Hidalgo was liable.
Plaintiff first argues that the trial court erred by admitting into evidence three affidavits of merit filed with the complaint pursuant to MCL 600.2912d.6 These affidavits had not been redacted. They listed Dr. Shah as a party to the suit. The affidavit of Dr. Rachel Borson also specifically noted Dr. Shah's negligence as a cause of Mr. Barnett's death. The affidavits of merit were marked as exhibits and shown to the jury. Plaintiff contends that these affidavits were inadmissible hearsay and that they impermissibly reference a "missing" settling party. We agree. Generally a trial court's decision to admit evidence will be reversed only for an abuse of discretion.7 However, when the trial court's decision involves a preliminary question of law, we review the issue de novo.8 A trial court abuses its discretion by permitting evidence to go to a jury that is inadmissible as a matter of law.9
The unredacted affidavits listed Dr. Shah as a party. The admission of the affidavits allowed the jury to speculate about a possible settlement with Dr. Shah, who became a nonparty long before trial. It is well established that a jury may not be informed of the existence or amount of a settlement unless there is a genuine dispute regarding the existence and amount.10 In Brewer v. Payless Stations, Inc, the Michigan Supreme Court held that such evidence is both prejudicial and confusing. The admission of such evidence can be prejudicial to either party.11 Furthermore, "the uncertainty of juror reaction to the fact of an indemnity release is considered as a foreseeable deterrent to settlements between plaintiffs and codefendants."12
In Clery v. Sherwood,13 this Court found the danger of prejudice and confusion to be even greater with the admission of misleading evidence referencing the "missing" settling party. In Clery, the trial court instructed the jury that certain parties had been dismissed before trial, without informing them that the parties were dismissed after a settlement had been reached. "[B]ased only upon partial and misleading facts," the jury was left to speculate regarding the missing party's whereabouts, the amount of a possible settlement, and the potential fault of the missing party.14 This Court found that the "potential prejudice" was so great that the error required reversal.15
The reference to Dr. Shah in the affidavits of merit was misleading. The affidavits clearly included Dr. Shah as a party in their captions, yet the jury was instructed that Dr. Shah was not a party to this action. The jury was allowed to speculate about Dr. Shah's absence from the trial.16 This was particularly onerous in light of the various other improper references to Dr. Shah throughout the trial. The admission of these affidavits, on this basis alone, constitutes reversible error.17
Additionally, Dr. Borson's affidavit of merit implicating Dr. Shah was inadmissible hearsay. Dr. Borson was originally retained by plaintiff, as a hematologist, to prepare an affidavit of merit pertaining to those claims against Dr. Shah. Following Dr. Shah's dismissal, Dr. Borson provided expert testimony at trial regarding the cause of Mr. Barnett's death. On cross-examination, Dr. Albaran's counsel questioned Dr. Borson at length regarding the potential negligence of Dr. Shah and of Mr. Barnett's primary care physician. Defendants offered Dr. Borson's affidavit of merit as substantive evidence of Dr. Shah's negligence.
Hearsay is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."18 Admissions made by a party-opponent are excluded from the definition of hearsay.19 MRE 801(d)(2) provides that a statement is not hearsay if
[t]he statement is offered against a party and is (A) the party's own statement, in either an individual or a representative capacity, ... or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship....[20]
Defendants sought the admission of Dr. Borson's affidavit of merit pursuant to MRE 801(d)(2), to be used as substantive evidence that Dr. Shah was wholly at fault for Mr. Barnett's death. However, the affidavit of merit was not an admission of any kind. Dr. Borson's affidavit contained only a qualified opinion based on the limited information available at the time the complaint was filed. Dr. Borson's affidavit implicated a nonparty. It was not an admission by plaintiff that Dr. Albaran and Dr. Hidalgo were free of fault. Dr. Borson did not form an opinion regarding the potential fault of Dr. Albaran and Dr. Hidalgo in preparing the affidavit of merit; plaintiff retained experts in the fields of general surgery and neurology to render opinions regarding the potential negligence of the defendant doctors.
Dr. Borson's affidavit of merit was prepared against Dr. Shah alone. When questioned, Dr. Borson agreed that the statements in her affidavit were true. However, as we have already noted, Dr. Borson did not address the additional and critical alleged negligence of Dr. Albaran and Dr. Hidalgo in preparing her affidavit. The statements in the affidavit presented only a partial history of the negligence contributing to Mr. Barnett's death and, therefore, were used out of context in this trial. The affidavit was an incomplete statement in which plaintiff did not manifest an adoption. Accordingly, Dr. Borson's affidavit of merit was irrelevant, inadmissible hearsay, and the trial court abused its discretion in admitting the affidavit as substantive evidence of Dr. Shah's liability.21
Two other affidavits of merit were also improperly used for impeachment purposes. MRE 801(d)(1) provides that a statement is not hearsay if "[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement," and the statement...
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Barnett v. Hidalgo
...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 def......