Esselman v. Garden City Hosp.

• Decision Date: 04 June 2009
• Docket Number: Docket No. 280723.,Docket No. 280816.
• Citation: 284 Mich. App. 209,772 N.W.2d 438
• Parties: ESSELMAN v. GARDEN CITY HOSPITAL.
• Court: Court of Appeal of Michigan — District of US

772 N.W.2d 438

284 Mich. App. 209

ESSELMAN v. GARDEN CITY HOSPITAL.

Docket No. 280723.

Docket No. 280816.

Court of Appeals of Michigan.

Submitted January 14, 2009, at Detroit.

Decided June 4, 2009, at 9:00 a.m.

Fieger, Fieger, Kenney, Johnson & Giroux, P.C. (by Heather A. Jefferson and Vernon R. Johnson), Southfield, for the plaintiff.

Feikens, Stevens, Kennedy & Galbraith, P.C. (by Jon Feikens), Detroit, for Garden City Hospital.

Rutledge, Manion, Rabaut, Terry & Thomas, P.C. (by Matthew J. Thomas and Paul J. Manion), Detroit, for David J. Fertel, D.O., and others.

Before: SAAD, C.J., and DAVIS and SERVITTO, JJ.

DAVIS, J.

In these consolidated appeals, the defendants appeal orders that denied their respective motions for summary disposition. This medical malpractice case arises out of David Esselman's death, while in the care of defendants, from gangrenous cholecystitis¹ and sepsis, each of which he apparently had for at least 24 hours before his death. Defendants contend that plaintiff's notice of intent and affidavits of merit were insufficient. The trial court disagreed. We affirm.

The Decedent was admitted to Garden City Hospital on September 26, 2003. He was experiencing pain in his abdomen, back, and chest, and he was nauseous and vomiting. Initial testing revealed a small obstruction in the decedent's bowel. The next day, he continued to have the same symptoms, but additionally had a body temperature of 101 degrees Fahrenheit. Antibiotics and further testing were ordered, but no computerized tomography (CT) scan. On the next day, his temperature rose to 102 degrees. A CT scan and a dimethyl iminodiacetic acid (HIDA) scan were performed, from which it was concluded that his common bile duct was obstructed and that there were indications that the decedent suffered from acute cholecystitis. A second HIDA scan was ordered, though it appears it was not completed. Treating physicians ordered the attending nurses to report any rises in body temperature.

On September 29, 2003, the decedent's body temperature was recorded as being 102.7 degrees at 3:00 a.m., 102.6 degrees at 6:30 a.m., and 103 degrees by 8:00 a.m. At 1:30 p.m. that day, the decedent underwent surgery and died during the procedure. The certificate of death stated that he had died as a result of gangrenous cholecystitis and sepsis, each of which he had for at least 24 hours before his death.

On June 7, 2005, plaintiff received his letter of authority appointing him as personal representative of the decedent's estate. On September 26, 2005, plaintiff sent his notice of intent to file a claim (NOI) to the various defendants.² The NOI was 14 pages long and included a lengthy factual recitation of the decedent's stay at Garden City Hospital, including detailed discussions of the treatment provided by various individuals, as well as the acts and errors of the individual defendants. Furthermore, it contained the following statement of the "applicable standard of practice or care alleged":

Pursuant to MCL 333.21513 entitled: "Duties and Responsibilities of Owner, Operator or Governing Body of Hospitals", the owner, operator and governing body of a hospital licensed under this Article (A) are responsible for all phases of the operation of the hospital, selection of the medical staff, and quality of care rendered in the hospital.

The standard of care required from the above-named physicians, residents, nurses, etc., and entities include the following but are not limited to:

a. To timely diagnose and treat (an[d]/or refer to treat) gallbladder disease including but not limited to performance of timely ultrasound, HIDA scan, CT scan and/or MRI [magnetic resonance imaging] of the abdomen;

b. To fully and completely investigate and work up the patient for these disease processes including but not limited to appreciating the increasing laboratory values and deteriorating clinic[al] picture which began no later than Saturday, September 27, 2003; on Saturday, September 27, 2003 perform the above diagnostic testing so as to work up gallbladder disease which was clearly suggested by not only the clinical picture but also the laboratory results. To timely order and obtain a gastroenterological consultation and participation in the care of this patient so as to determine whether this was in fact gallbladder disease versus some other GI [gastroenterology] problem; and to timely determine whether a pre-operative ERCP [endoscopic retrograde cholangiopancreatography] and/or cholangiogram was necessary as well as to work up the blood in the stool and declining hemoglobin levels;

c. To timely perform a cholecystectomy on Saturday, September 27, 2003 or, at the very latest Sunday, September 28, 2003;

d. Failure to obtain serial abdomen films and exams as well as serial labs including arterial lactate as ordered on September 27, 2003 by the physicians and nursing staff;

e. On Sunday, September 28, 2003 failure by the physicians and nurses involved with Mr. Esselman's care to appreciate the findings as evidenced by the CT scan and HIDA scan that in fact this was acute cholecystitis and that Mr. Esselman had a deteriorating clinical picture including high fever, markedly abnormal laboratory values but especially significantly increased liver studies and white blood count, and that his abdominal examination revealed tympany necessitating an emergent operation on his gallbladder;

f. Not to unnecessarily delay Mr. Esselman's surgery such that it would be performed on either Saturday, September 27, 2003 or Sunday, September 28, 2003 at the very latest;

g. To order and obtain a timely gastroenterology consultation for a preoperative ERCP and in the event that one was unavailable, obtain those services from another GI [gastroenterologist] or alternatively proceed with the surgery without an ERCP;

h. Throughout the remainder of Sunday, September 28, 2003 that the nursing staff timely and immediately report signs of clinical deterioration such as increasing temperature and increasing abdominal symptoms to the attending physician after it was evident that the house officer would or did nothing with such information as well as failure by the nursing staff to record vital signs once every hour;

i. On September 29, 2003 failure by the nursing staff to immediate[ly] report markedly abnormal laboratory values and increasing temperature to either the house officer and/or the attending physicians;

j. Failure by the physicians and nursing staff to assure that an immediate[ly] and emergent operation was performed on Monday, September 29, 2003 instead of same occurring in the afternoon hours;

k. Failure by the anesthesiologist and/or CRNA [certified registered nurse anesthetist] to closely monitor end tidals C02 such that once they began to rise the anesthesiologist should have been immediately notified and timely interaction should have occurred including, but not limited to[,] hyperventilating the patient, provide bicarbonate, etc.;

l. Failure to timely prevent and otherwise identify and treat the signs and symptoms of sepsis; and,

m. Any and all other breaches of the standard of care found to be violated through the course of discovery. [Underlining in original.]

On March 28, 2006, plaintiff filed his complaint, accompanied by four affidavits of merit.

Defendants moved for summary disposition; their motions made generally the same assertions that (1) the NOI failed to comply with MCL 600.2912b because it did not specifically state a particularized standard of care for each individual defendant and that (2) the affidavits of merit failed to comply with MCL 600.2912d because they did not explain how defendants' conduct caused the decedent's death. The trial court denied those motions, and this Court granted defendants' applications for leave to appeal.

This Court reviews a trial court's decision regarding summary disposition de novo. Dressel v. Ameribank, 468 Mich. 557, 561, 664 N.W.2d 151 (2003). This Court's review is limited to the evidence that was presented to the trial court. Pena v. Ingham Co. Road Comm., 255 Mich.App. 299, 313 n. 4, 660 N.W.2d 351 (2003). Furthermore, this case presents an issue of statutory interpretation, which is also subject to review de novo. Grossman v. Brown, 470 Mich. 593, 598, 685 N.W.2d 198 (2004).

Pursuant to MCL 600.2912b(1), a person must send an NOI to a health care facility or professional at least 182 days before he or she commences any action for medical malpractice against the facility or professional. Furthermore, MCL 600.2912b(4) sets forth a number of requirements with which the NOI must comply. Specifically, it states:

The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:

(a) The factual basis for the claim.

(b) The applicable standard of practice or care alleged by the claimant.

(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.

(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.

(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.

(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.

The plain language of the statute therefore does not require multiple statements, nor does it state that plaintiffs must explicitly line up particularized standards with individual defendants.

We are first urged to conclude that the Legislature did intend to require plaintiffs to explicitly provide such an analysis in NOIs on the basis that the Legislature used singular words in the above statute. However, that argument is entirely contrary to the dictates of MCL 8.3b, which states that in construing stat...