Geralds v. Munson Healthcare, No. 240159 (Mich. App. 10/28/2003)

Decision Date28 October 2003
Docket NumberNo. 240159.,240159.
PartiesGREGORY GERALDS, Next Friend of ANDREW GERALDS, Minor, Plaintiff-Appellant, v. MUNSON HEALTHCARE, Defendant/Third-Party Plaintiff-Appellee, and ROBERT SWETNAM, D.O., Third-Party Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

William R. Seikaly for Andrew Geralds. Bloomfield Hills.

Johnson & Wyngaarden, P.C. (by David R. Johnson and Michael L. Van Erp), for Munson Healthcare. Okemos.

Law Offices of Thomas J. Trenta, P.L.L.C. (by Thomas J. Trenta and Nicolette S. Zachary), for Robert Swetnam, D.O. Bloomfield Hills.

Before: Meter, P.J., and Saad and Schuette, JJ.

SCHUETTE, J.

Plaintiff Andrew Geralds, by his next friend Gregory Geralds, appeals as of right from a trial court's order striking plaintiff's affidavit of merit, granting summary disposition in favor of defendant, and dismissing with prejudice plaintiff's malpractice complaint. We affirm.

I. FACTS

On December 21, 2000, plaintiff's counsel filed a complaint against defendant Munson Healthcare alleging that on August 21, 1997, defendant's agent, Robert Swetnam, D.O., who was board certified in emergency medicine, committed malpractice in the treatment of a laceration to plaintiff's left foot. The complaint was accompanied by an affidavit of merit signed by Dr. George Podgorny.

On September 13, 2001, defendant moved to strike plaintiff's affidavit of merit on the grounds that it did not comply with MCL 600.2912d and MCL 600.2169 because Podgorny was not board certified in emergency medicine. In a medical malpractice action, MCL 600.2169 requires the affidavit of merit and to be signed by a physician with the same board certification as the physician the affidavit is offered against. Defendant asserted that because the affidavit of merit was defective, it was insufficient to commence the lawsuit, the statute of limitations was not tolled, and defendant was entitled to summary disposition pursuant to MCR 2.116(C)(7) and (10). Defendant asked the court to dismiss plaintiff's complaint with prejudice.

On November 19, 2001, the trial court held a hearing on defendant's motion to strike Podgorny's affidavit of merit and for summary disposition. At the hearing, defense counsel argued that the trial court should strike plaintiff's affidavit of merit because Swetnam was board certified in emergency medicine, while Podgorny, who signed the affidavit, was not. Plaintiff's counsel asserted that William Seikaly, the attorney who signed plaintiff's complaint, initially spoke with Dr. Ronald Krome about preparing and signing an affidavit to attach to plaintiff's complaint, but that Krome, who was board certified in emergency medicine, knew Swetnam and was therefore unable to serve as the expert.

According to plaintiff's counsel, Seikaly asked Krome if he could recommend another doctor, and Krome recommended Podgorny and specifically stated that Podgorny was board certified in emergency medicine. In addition, plaintiff's counsel asserted that when Seikaly spoke with Podgorny, he allegedly stated, "I understand you're the past President of the Board of Emergency Medicine and I need a specialist in emergency medicine," and Podgorny responded affirmatively.

Krome submitted an affidavit in which he asserted that he recommended Podgorny to Seikaly and that when Seikaly inquired whether Podgorny was board certified, "I indicated to him that not only was he board certified, but he was a former President of the American Board of Emergency Medicine."

Seikaly explained in an affidavit the basis for his belief that Podgorny was board certified in emergency medicine. According to Seikaly, he believed that Podgorny was board certified in emergency medicine on the basis of Podgorney's status as a physician/president of the organization and the representations made by Krome. Seikaly further stated in the affidavit that he had never seen a case where a physician who was an officer of a specialty board, was not certified by that board. Seikaly further pointed to the fact that the board's website indicates that a physician must be certified in order to be an examiner for the board, and that Podgorny's curriculum vitae indicates that he was a chief examiner for both the written and oral examinations. Thus, Seikaly asserted that his belief of Podgorny's certification was reasonable under MCL 600.2169 and MCL 600.2912d. Podgorny's curriculum vitae does not, however, indicate that he is board certified in emergency medicine.

The trial court observed that Podgorny was "obviously . . . skilled and competent." However, the trial court was concerned that Seikaly had not specifically asked Podgorny if he were board certified in emergency medicine. The court reasoned that there is an obligation to confirm, before retaining an expert on any given case, whether that expert is, in fact, board certified, maintains the requisite clinical practice, and was board certified at the appropriate time in order to offer opinions in a case. The court did not accept the argument that one can simply reasonably rely upon referrals or the fact that a person may be on a particular board. The trial court held that plaintiff's counsel's belief that Podgorny was board certified in emergency medicine was not reasonable because the core question of board certification in emergency medicine was never asked.

On December 6, 2001, the court entered an order striking plaintiff's affidavit of merit and granting defendant's motion for summary disposition. The trial court dismissed plaintiff's complaint with prejudice. On February 26, 2002, the trial court denied plaintiff's motion for rehearing. This appeal ensued.

II. STANDARD OF REVIEW

This Court reviews de novo a trial court's grant or denial of summary disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998).

In determining whether a party is entitled to judgment as a matter of law pursuant to MCR 2.116(C)(7), "a court must accept as true a plaintiff's well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiff's favor." Farm Bureau Mut Ins Co v Combustion Research Corp, 255 Mich App 715, 720; 662 NW2d 439 (2003). "Where there are no factual disputes and reasonable minds cannot differ on the legal effect of the facts, the decision regarding whether a plaintiff's claim is barred by the statute of limitations is a question of law that this Court reviews de novo." Id

"A motion brought under MCR 2.116(C)(10) tests the factual support for [a] claim." Downey v Charlevoix Co Bd of Co Rd Comm'rs, 227 Mich App 621, 625; 576 NW2d 712 (1998). "The pleadings, affidavits, depositions, admissions, and any other documentary evidence submitted by the parties must be considered by the court when ruling on a motion brought under MCR 2.116(C)(10)." Downey, supra at 626; MCR 2.116(G)(5). When reviewing a decision on a motion for summary disposition under MCR 2.116(C)(10), this Court "must consider the documentary evidence presented to the trial court `in the light most favorable to the nonmoving party.'" DeBrow v Century 21 Great Lakes, Inc (After Remand), 463 Mich 534, 538-539; 620 NW2d 836 (2001), citing Harts v Farmers Ins Exchange, 461 Mich 1, 5; 597 NW2d 47 (1999).

III. ANALYSIS
A. Reasonable Belief

Plaintiff first argues that the trial court erred in granting defendant's motion for summary disposition because plaintiff's counsel reasonably believed that Podgorny was board certified in emergency medicine and because MCL 600.2912d does not contain language that requires a medical malpractice plaintiff or its attorney to conduct any specific inquiry as a basis to form a reasonable belief regarding whether a physician is board certified in a particular specialty. We disagree.1

MCL 600.2912d(1) provides, in part, that "the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169" (emphasis added). See also MCR 2.112(L). MCL 600.2169(1) provides:

(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:

(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. [Emphasis added.]

Under MCL 600.2169(1)(a), then, if the party against whom testimony is offered is a board certified specialist, the expert witness must be board certified in the same specialty. Therefore, because Swetnam was board certified in emergency medicine, the affidavit of merit accompanying plaintiff's complaint was required to be signed by a physician who was also board certified in emergency medicine. Plaintiff does not dispute that Podgorny, who signed the affidavit of merit that accompanied plaintiff's medical malpractice complaint, was not board certified in emergency medicine. However, plaintiff contends that under the unique facts of this case, his belief that Podgorny was board certified in emergency medicine was reasonable as allowed by MCL 600.2912d(1). Plaintiff's belief that Podgorny was board certified was based on a recommendation by another doctor who believed Podgorny to be board...

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  • Estate of Hubka v. Defever, No. 274857 (Mich. App. 2/14/2008), 274857.
    • United States
    • Court of Appeal of Michigan — District of US
    • 14 Febrero 2008
    ...supra at 586 (emphasis added; internal quotations and citations omitted).] Thus, the Kirkaldy Court overruled Geralds v Munson Healthcare, 259 Mich App 225; 673 NW2d 792 (2003), and Mouradian v Goldberg, 256 Mich App 566; 664 NW2d 805 (2003), cases in which this Court held that a nonconform......

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