Glisson v. Gerrity
| Decision Date | 06 March 2007 |
| Docket Number | Docket No. 264433. |
| Citation | 274 Mich. App. 525,734 N.W.2d 614 |
| Parties | Barry GLISSON, Successor Personal Representative of the Estate of Scott Glisson, Plaintiff-Appellee, v. Dianne GERRITY, M.D., Defendant-Appellant, and Robert Stuart Levy, M.D., Robert Levy, M.D., P.C., Daniel N. Scaff, M.D., and Pediatrics and Adolescent Medicine, Defendants. |
| Court | Court of Appeal of Michigan — District of US |
Tanoury, Corbet, Shaw, Nauts & Essad, P.L.L.C. (by William A. Tanoury and Anita Comorski), Detroit, for Dianne Gerrity.
Before: WHITBECK, C.J., and ZAHRA and DONOFRIO, JJ.
This is a wrongful death medical malpractice action arising out of the death of 18-month-old Scott Glisson on December 9, 2002. Defendant Dianne Gerrity, M.D., appeals by leave granted the trial court's denial of her motion for summary disposition on the basis of its determination that plaintiff Michael Glisson submitted an affidavit of merit in compliance with the statutory requirements of MCL 600.2912d. We reverse.
Between November 21, 2002, and December 7, 2002, several doctors at the Pediatrics and Adolescent Medicine clinic treated Scott Glisson. On November 21, 2002, Daniel Scaff, M.D., examined Scott Glisson, whose symptoms included difficulty in breathing, coughing, a runny nose, and a fever. Dr. Scaff diagnosed acute bronchitis and prescribed antibiotics. On November 22, 2002, Dr. Scaff again examined Scott Glisson because of continued coughing and vomiting. Dr. Scaff prescribed a different antibiotic and again diagnosed bronchitis. On November 30, 2002, Robert Stuart Levy, M.D., examined Scott Glisson and noted that his ears and lungs were clear; Dr. Levy made no additional diagnosis. On Saturday, December 7, 2002, Dianne Gerrity, M.D., evaluated Scott Glisson for frequent vomiting, weight loss, and fever. Dr. Gerrity diagnosed possible pneumonia and recommended that Scott receive a chest x-ray on the following Monday, December 9, 2002. However, in the early morning hours of December 9, 2002, Scott Glisson began choking and stopped breathing. He was pronounced dead at 3:30 a.m. at Henry Ford Wyandotte Hospital.
On February 14, 2003, Michael Glisson was appointed personal representative of the estate, and he filed a notice of intent to sue, as required by MCL 600.2912b, on November 17, 2003. The notice of intent named only Dr. Levy as treating Scott Glisson on the four occasions he was taken to the clinic. The notice of intent claimed that Dr. Levy breached the applicable standard of care by failing to have a chest x-ray performed immediately on December 7, 2002, when Scott Glisson exhibited symptoms of pneumonia. The notice of intent also indicated that, as a result of the failure to take a chest x-ray, Scott Glisson suffered untreated pneumonia.
On November 26, 2003, Michael Glisson filed an amended notice of intent, directed not only to Dr. Levy but also to Dr. Scaff, Dr. Gerrity, and Pediatrics and Adolescent Medicine. This amended notice of intent clarified that Dr. Gerrity had been the physician who treated Scott Glisson on December 7, 2002, and that Dr. Gerrity breached the applicable standard of care by failing to have a chest x-ray performed immediately.
Michael Glisson filed a complaint on behalf of the estate on June 2, 2004. In keeping with the amended notice of intent, the complaint alleged that Scott Glisson was treated by Dr. Scaff on November 21 and 22, 2002; by Dr. Levy on November 30, 2002; and by Dr. Gerrity on December 7, 2002. With the complaint, Michael Glisson also filed an affidavit of merit that was signed by board-certified pediatrician William E. Feldman, M.D., on November 26, 2003, and identified Dr. Levy as the pediatrician who treated Scott Glisson on December 7, 2002. Specifically, Dr. Feldman's affidavit of merit stated:
3. It is my professional opinion that Dr. Levy did not complete a thorough examination of Scott Glisson on 11/21/02 & 11/22/02 as he failed to properly note respirations and pulse rate in his notes for each office visit. Further, in light of a significant 2 lb weight loss due to vomiting, plus, a temperature of several weeks duration, and rhonchi of right lower lobe, Dr. Levy failed to obtain a chest x-ray at the time of the office visit on 12/7/02.
4. That as a result of the departure from the standard of care that Scott Glisson expired on 12/9/02.
5. I reserve my final opinion based upon further discovery to be conducted in this matter. [Emphasis added.]
As an affirmative defense, Dr. Gerrity asserted that Michael Glisson "failed to file an affidavit of merit which meets the requirements contained in MCL 600.2912d ... and that [the] action is thus barred[.]" Dr. Gerrity also gave notice that she would be moving for summary disposition on that ground.
In January 2005, the trial court dismissed Dr. Levy; Robert Levy, M.D., P.C.; and Dr. Scaff from the action on the ground that, with regard to those three defendants, the amended notice of intent was insufficient. The record does not indicate that any attorney ever appeared on behalf of Pediatrics and Adolescent Medicine.
On February 24, 2005, Dr. Gerrity moved for summary disposition, arguing that the affidavit of merit failed to comply with the requirements of MCL 600.2912d and that Michael Glisson therefore had not properly commenced his action. More specifically, Dr. Gerrity argued that the affidavit of merit was defective because it made no mention of her and failed to provide the specific information required by MCL 600.2912d(1)(a) to (d); that is, it contained no statement of the applicable standard of care, the alleged breach thereof, the appropriate actions to comply with the standard, or the manner in which the alleged breach caused the injury. Dr. Gerrity argued that because Michael Glisson had not timely cured these defects, the trial court should have dismissed the claims against her with prejudice.
Michael Glisson responded, explaining that Dr. Gerrity was not mentioned in the affidavit of merit because "it was impossible to determine her exact role" in Scott Glisson's care. Michael Glisson pointed out that Dr. Gerrity even admitted at her deposition that he could not have determined from the medical record who treated Scott Glisson on December 7, 2002. Michael Glisson also provided an affidavit of Dr. Feldman in which he explained that when he signed the affidavit of merit, it was unclear who treated Scott Glisson on December 7, 2002, because the medical records did not indicate the identity of the treating physician. Therefore, he was "under the impression that Dr. Levy was the physician who saw Scott Glisson on December 7, 2002." It was not until Dr. Levy was deposed in December 2004 that it became clear that Dr. Gerrity was actually the treating physician. Dr. Feldman averred that his opinion was nevertheless unchanged that the physician who treated Scott Glisson on December 7, 2002, departed from the applicable standard of care.
Dr. Gerrity replied, pointing out that the complaint filed on June 2, 2004, and the amended notice of intent filed on November 26, 2003, both referred to her. Thus, it was not "impossible" for Dr. Feldman in his initial affidavit of merit, signed on November 26, 2003, to have known about Dr. Gerrity's treatment of Scott.
On May 11, 2005, while Dr. Gerrity's motion was still pending, Barry Glisson was appointed successor personal representative of the estate. On June 14, 2005, after hearing oral arguments on the motion, the trial court concluded that the affidavit of merit was not defective, because it did "contain statements concerning the malpractice of December 7, 2002," and was, thus, sufficient to constitute an affidavit of merit against Dr. Gerrity. The trial court denied Dr. Gerrity's motion and directed the filing of an amended affidavit of merit. Barry Glisson filed the amended affidavit of merit on June 23, 2005. Dr. Gerrity's interlocutory appeal to this Court followed.
Dr. Gerrity argues that the initial affidavit of merit was defective because it did not name her and because it did not contain the requisite statutory statements. MCR 2.116(C)(7) provides that a motion for summary disposition may be raised on the ground that a claim is barred by the statute of limitations. Neither party is required to file supportive materials; any documentation that is provided to the court, however, must be admissible evidence.1 The plaintiff's well-pleaded factual allegations, affidavits, or other admissible documentary evidence must be accepted as true and construed in the plaintiff's favor, unless contradicted by documentation submitted by the movant.2 Absent disputed issues of fact, whether a cause of action is barred by a statute of limitations is a question of law that we review de novo.3 Further, absent any ambiguities, statutes are to be interpreted according to their plain language.4 The proper interpretation of a statute is a question of law that we review de novo.5
To properly commence a medical malpractice action, the plaintiff must submit an affidavit of merit.6 The statute governing affidavits of merit, MCL 600.2912d(1), provides that the affidavit of merit shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The...
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Carmichael v. Henry Ford Hosp.
......383, 388-390, 715 N.W.2d 72 (2006), application for leave to appeal in Supreme Court held in abeyance 722 N.W.2d 882 (2006), Glisson v. Gerrity, 274 Mich.App. 525, 538-539, 734 N.W.2d 614 (2007), or an unpublished Court of Appeals case cited by defendants, the case at bar does not ......