Doyle v. Hutzel Hosp.

• Decision Date: 29 August 2000
• Docket Number: Docket No. 210750.
• Citation: 241 Mich. App. 206,615 N.W.2d 759
• Parties: Joyce DOYLE, Plaintiff-Appellant, v. HUTZEL HOSPITAL, Lawrence Morawa, M.D., Lawrence Morawa, M.D., P.C., d/b/a Dearborn Orthopedic Surgery and Jeffrey Mast, M.D. Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

615 N.W.2d 759

241 Mich. App. 206

Joyce DOYLE, Plaintiff-Appellant, v. HUTZEL HOSPITAL, Lawrence Morawa, M.D., Lawrence Morawa, M.D., P.C., d/b/a Dearborn Orthopedic Surgery and Jeffrey Mast, M.D. Defendants-Appellees.

Docket No. 210750.

Court of Appeals of Michigan.

Submitted March 14, 2000, at Detroit.

Decided May 19, 2000, at 9:00 a.m.

Released for Publication August 29, 2000.

Granzotto & Nicita, P.C. (by Mark Granzotto), Detroit, and Gonderman Legal Corp., P.C. (by Robert F. Gonderman, Jr.), South Bend, Indiana, for the plaintiff.

Kitch, Drutchas, Wagner & Kenney, P.C. (by Linda M. Garbarino), Detroit, for Hutzel Hospital, Lawrence Morawa, M.D., and Lawrence Morawa, M.D., P.C.

Saurbier, Siegan & Sanfield, P.L.C. (by Scott A. Saurbier and Valerie Henning Mock), St. Clair Shores, for Jeffrey Mast, M.D.

Before: RICHARD ALLEN GRIFFIN, P.J., and HOLBROOK, JR., and J.B. SULLIVAN ¹, JJ.

RICHARD ALLEN GRIFFIN, P.J.

Plaintiff appeals as of right from an order granting summary disposition in favor of defendants and denying plaintiff's motion to amend her complaint in this medical malpractice case. On appeal, plaintiff challenges only that portion of the order denying her motion to amend. We reverse and remand.

I

On October 14, 1996, plaintiff filed a complaint against defendants asserting a claim ² for personal injuries arising out of a 1994 postoperative infection. The transactional setting of plaintiff's original complaint was set forth in paragraphs six through eleven:

6. On May 2, 1994, Dr. [Jeffrey] Mast operated on Joyce Doyle at Hutzel Hospital, performing correction of malunion of the pelvis and acetabulum with fixation and bone grafting; surgical residents, surgical nurses, and other employees of Hutzel Hospital assisted Dr. Mast in his surgery.

7. On May 2, 1994, Dr. [Lawrence] Morawa operated on Joyce Doyle at Hutzel Hospital, performing a total right hip arthroplasty; surgical residents, surgical nurses, and other employees of Hutzel Hospital assisted Dr. Morawa in his surgery.

8. After her discharge from Hutzel Hospital on May 17, 1994, Joyce Doyle developed drainage from a surgical incision, as well as positive wound cultures, and persistent elevated (above normal limits) sedimentation rates.

9. On August 16, 1994, an orthopedic surgeon removed a small piece of yellow material from Joyce Doyle's surgical incision, noting that the material had the consistency of the "IO—band" material used at surgery.

10. Dr. Mast admitted Joyce Doyle to Hutzel Hospital on September 9, 1994, with a diagnosis of infected right hip; on September 13, 1994, as a result of the right hip infection, Dr. Mast removed the right total hip arthroplasty, and performed right acetabular fixation with right tibial pin insertion.

11. Since September 13, 1994, Joyce Doyle has not had a functional right hip joint and has been confined to a wheelchair. Plaintiff's allegation of duty and theory of medical malpractice were presented in paragraphs twelve and thirteen:

12. On May 2, 1994, defendants and their agents and/or employees, owed to Joyce Doyle the duty to comply with the applicable standards of practice, or care, for the performance of correction of malunion of the pelvis and acetabulum with fixation and bone grafting, and total right hip arthroplasty.

13. Defendants, and their agents and/or employees, breached their duties to Joyce Doyle in the following ways, among others:

A. Drs. Mast and Morawa, as well as their surgical residents, caused foreign material to remain in Joyce Doyle's body at the close of their surgeries;

B. Drs. Mast and Morawa failed to insure that no foreign material remained in Joyce Doyle's body at the close of their surgeries;

C. The surgical nursing staff that participated in Joyce Doyle's surgery caused and/or allowed foreign material to remain in Joyce Doyle's body at the close of surgery.

In February 1998, after the expiration of the applicable period of limitation, M.C.L. § 600.5805(4); MSA 27A.5805(4), defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (C)(8), and (C)(10) on the basis plaintiff could not establish facts necessary to support her allegation that a foreign material was left in the surgical site during the May 2, 1994, surgery, or that any material removed on August 16, 1994, by the orthopedic surgeon was a foreign body. In response, plaintiff moved to amend her complaint, seeking to add two theories of professional negligence against defendants. Specifically, plaintiff alleged in the proposed amended complaint that her postoperative infection was proximately caused by defendants' malpractice in performing the surgery without eliminating the possibility of prior infection in plaintiff's body (her ankle) and in failing to properly diagnose and treat, following the surgery, the postoperative infection.

The trial court ultimately ruled that the evidence presented was not sufficient to raise a genuine issue of material fact with regard to the theory of liability raised in plaintiff's original complaint and granted summary disposition in favor of defendants. The trial court then considered plaintiff's motion to amend her complaint and determined that the new allegations in the amended complaint did not relate back to the original complaint because the amended complaint dealt with alleged negligent acts before and after surgery and the original complaint addressed only negligence during surgery. The trial court reasoned:

There is not a claim there was further medical malpractice during the course of the surgery. Medical malpractice was the preoperative treatment and postoperative treatment. Postoperative treatment still deals with the surgery. But, there are two instances one of which occurred, incident prior to the surgery which is claimed to be medical malpractice, and the other of which is after the surgery.

I knew there would be argument that of [sic] the preoperative malpractice relates to the surgery because they never should have gone ahead with the surgery. But the original complaint does not deal with going ahead with surgery. It deals with the condition during the course of the surgery.

So again we are into an issue of whether or not this relates back to the surgery. The two events are not directly related with the surgery itself. They are preoperative and postoperative.

* * *

The—as far as the relating back issue is concerned I would find that the new claims that were set forth are not claims that are associated with the surgery itself, but preoperative, postoperative, so therefore they would not be relating back to the same circumstances. Although we are dealing with same defendants, different circumstances, preoperative and postoperative.

On the basis of its conclusion that the amended pleading did not relate back to the conduct, transaction, or occurrence set forth in the original complaint, the trial court held that amendment would be futile because the applicable period of limitation had expired. The lower court therefore denied plaintiff's motion to amend her complaint. Plaintiff now appeals from that portion of the trial court's order denying her motion to amend the complaint.

II

On appeal, plaintiff contends the trial court abused its discretion in denying her motion to amend the complaint. Specifically, plaintiff argues the trial court erred in concluding, pursuant to MCR 2.118(D), the amended complaint did not relate back to the original complaint. According to plaintiff, all the new theories of negligence proposed in the amended complaint arose out of the same conduct, transaction, or occurrence set forth in her original complaint, namely, the infection of plaintiff's right hip following surgery. We agree.

"[D]ecisions granting or denying motions to amend pleadings, are within the sound discretion of the trial court and reversal is only appropriate when the trial court abuses that discretion." Weymers v. Khera, 454 Mich. 639, 654, 563 N.W.2d 647 (1997). See also Dacon v. Transue, 441 Mich. 315, 328, 490 N.W.2d 369 (1992); Hakari v. Ski Brule, Inc., 230 Mich.App. 352, 355, 584 N.W.2d 345 (1998). The question whether a proposed amendment relates back to the original complaint represents an issue of law that is reviewed by this Court de novo on appeal. Smith v. Henry Ford Hosp., 219 Mich.App. 555, 557, 557 N.W.2d 154 (1996).

MCR 2.118(A)(2) provides leave to amend a pleading "shall be freely given when justice so requires." If a trial court grants summary disposition pursuant to MCR 2.116(C)(8), (C)(9), or (C)(10), the court must give the parties an opportunity to amend their pleadings pursuant to MCR 2.118, unless the amendment would be futile. MCR 2.116(I)(5); Weymers, supra at 658, 563 N.W.2d 647. Generally, "an amendment relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading." MCR 2.118(D).³ It is well settled that the amended pleading can introduce new facts, new theories, or even a different cause of action as long as the amendment arises from the same transactional setting that was set forth in the original pleading. LaBar v. Cooper, 376 Mich. 401, 406, 137 N.W.2d 136 (1965). The parties in the instant case disagree on the application of this latter principle to the present facts.

In LaBar, the plaintiffs' physician sent Mrs. LaBar (hereafter the plaintiff) to a hospital to get an intermuscular shot. She allegedly suffered radial nerve damage after receiving the shot in her upper arm. The plaintiffs (Mrs. LaBar and her husband) filed a medical malpractice action against several defendants, including the physician. In the original complaint, the plaintiffs alleged only that the shot had been negligently administered. However, during the course of ensuing discovery, the physician was deposed and testified the shot should have been given in the plaintiff's...