Kemp v. Harper-Grace Hosp., HARPER-GRACE

• Citation: 447 N.W.2d 780,180 Mich.App. 473
• Decision Date: 21 November 1989
• Docket Number: Docket No. 101406,HARPER-GRACE
• Parties: Freeland P. KEMP, Personal Representative of the Estate of Freeland C. Kemp; Gary Rex Kemp; and Francis Felicia Kemp, Plaintiffs-Appellants, v.HOSPITAL, Grace Hospital Division, Cardiovascular Associates, P.C., Luis Osterberger, M.D. and Edmundo Sagastume, M.D., Defendants-Appellees. 180 Mich.App. 473, 447 N.W.2d 780
• Court: Court of Appeal of Michigan — District of US

Page 780

447 N.W.2d 780

Freeland P. KEMP, Personal Representative of the Estate of

Freeland C. Kemp; Gary Rex Kemp; and Francis

Felicia Kemp, Plaintiffs-Appellants, v. HARPER-GRACE HOSPITAL, Grace Hospital Division,

Cardiovascular Associates, P.C., Luis Osterberger,

M.D. and Edmundo Sagastume, M.D.,

Defendants-Appellees.

Docket No. 101406.

180 Mich.App. 473, 447 N.W.2d 780

Court of Appeals of Michigan.

Submitted April 5, 1989.

Decided July 7, 1989.

Released for Publication Nov. 21, 1989.

[180 MICHAPP 474] Jemal & Jemal by Alexander J. Jemal, Jr., Harper Woods, for plaintiffs-appellants.

Kitch, Saurbier, Drutchas, Wagner & Kenny, P.C. by Susan Healy Zitterman, Detroit, for Harper-Grace Hospital and Edmundo Sagastume, M.D.

Plunkett & Cooney, P.C. by Robert G. Kamenec, Detroit, for Cardiovascular Associates, P.C., and Luis Osterberger, M.D.

Before DANHOF, C.J., and WAHLS and GRIFFIN, JJ.

PER CURIAM.

A Wayne Circuit Court jury returned a verdict of no cause of action in favor of all defendants. Plaintiffs appeal as of right. We affirm.

Plaintiffs brought this medical malpractice action against defendants based on their treatment of Freeland C. Kemp. Plaintiffs' theory was that Kemp died as a result of the cumulative effect of numerous acts of malpractice by defendants. On appeal, plaintiffs claim that the lower court erred in excluding evidence of defendants' alleged malpractice with respect to defendants' failure to monitor the circulation and pulse in Kemp's right leg, failure to monitor and treat anemia, pulmonary problems and edema, failure to timely and properly treat the high fever associated with a lung infection, and failure to properly resuscitate Kemp.

[180 MICHAPP 475] In Simonelli v. Cassidy, 336 Mich. 635, 644, 59 N.W.2d 28 (1953), our Supreme Court stated:

"In an action for damages occasioned by the negligence or malpractice of a physician or surgeon, every fact necessary to constitute a cause of action must be alleged in the declaration, complaint, or petition, and, moreover, such facts must be alleged with reasonable definiteness and certainty, although it is not necessary to couch the declaration in the technical language of the medical profession. Thus, it is essential to allege, with reasonable definiteness and certainty, the duty of the physician or surgeon to the person injured, the breach of duty complained of, the causal relation between the breach of duty and the injuries complained of, and resulting damage. Irrelevant and immaterial allegations should be stricken on demurrer, such as allegations which do not state issuable facts, but mere conclusions.

"Where the breach of duty relied on is negligence in the treatment of the patient, it is not sufficient merely to state that certain acts not negligent in themselves were done or omitted by the physician or surgeon without alleging that they were negligently done or omitted." 70 CJS, p 985, Sec. 61.

"When a declaration fails to advise the defendant with reasonable certainty, according to the circumstances of the case, of the facts upon which plaintiff proposes to rely, and will seek to prove it, it cannot be sustained." Creen v Michigan Central R Co, 168 Mich 104 [133 N.W. 956 (1911) ].

Some panels of this Court have interpreted Simonelli to require that medical malpractice must be pled more specifically than other types of negligence. See Lyons v. Brodsky, 137 Mich.App. 304, 307, 357 N.W.2d 679 (1984), lv. den., 421 Mich. 857 (1985); Welniak v. Alcantara, 100 Mich.App. 714, 716, 300 N.W.2d 323 (1980); O'Toole v. Fortino, 97 [180 MICHAPP 476] Mich.App. 797, 803, 295 N.W.2d 867 (1980), lv. den., 410 Mich. 863 (1980); Serafin v. Peoples Community Hosp. Authority, 67 Mich.App. 560, 565, 242 N.W.2d 438 (1976), lv. den., 397 Mich. 880 (1976); Bryson v. Stone, 33 Mich.App. 512, 518, 190 N.W.2d 336 (1971), lv. den., 385 Mich. 774 (1971); Haase v. DePree, 3 Mich.App. 337, 341, 142 N.W.2d 486 (1966).

However, in Martinez v. Redford Community Hosp., 148 Mich.App. 221, 229, 384 N.W.2d 134 (1986), a panel of this Court found that Simonelli did not require pleadings in a medical malpractice cause of action to be more specifically pled than other negligence or malpractice actions. See also Belobradich v. Sarnsethsiri, 131 Mich.App. 241, 247, 346 N.W.2d 83 (1983); Hill v. Freeman, 117 Mich.App. 788, 791-792, 324 N.W.2d 504 (1982), lv. den., 417 Mich. 1004 (1983). The Martinez Court stated:

In "solving the Simonelli riddle" we find that there is no language in Simonelli justifying an important departure from the traditional rules of pleading and negligence. Instead, we find that the Court in Simonelli applied the general rules of pleading and negligence to the facts before it. Thus, it is the nature of the cause of action itself which will dictate the degree of specificity required, i.e., the more complex the action, the more specific the averments should be. The application of GCR 1963, 111.1(1) [now MCR 2.111(B) ] to a medical malpractice lawsuit merely requires that a cause of action be specific enough to provide defendant with notice of the allegations against which to defend. [148 Mich.App. at 233, 384 N.W.2d 134.]

Plaintiffs urge us to evaluate their pleadings under the standard set forth in Martinez. We find that even under that standard plaintiffs' pleadings were inadequate to reasonably inform defendants [180 MICHAPP 477] of the nature of the claims they were called on to defend.

The lower court did not allow plaintiffs to introduce evidence on some of the alleged acts of malpractice which plaintiffs claimed had the cumulative effect of causing Kemp's death. Specifically, plaintiffs claim that the lower court erred in granting defendants' motion to preclude plaint...