Moy v. Detroit Receiving Hosp.
| Decision Date | 11 August 1988 |
| Docket Number | Docket No. 91182 |
| Parties | James Charles MOY, Plaintiff-Appellant, v. DETROIT RECEIVING HOSPITAL and University Health Center, a Michigan corporation, Harper Grace Hospital, Harper Hospital, Division, a Michigan corporation; Dr. Robert B. Stanley, M.D. and Dr. Donald Levine, M.D., jointly and severally, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Stephen J. Remski, Detroit, for plaintiff-appellant.
Kitch, Saurbier, Drutchas, Wagner & Kinney, P.C. by Susan Healy Zitterman, Detroit, for defendant-appellees Hospitals.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. by Robert G. Kamenec, Detroit, for defendant-appellee Stanley.
Coticchio, Zotter, Sullivan, Molter, Skupin & Turner, P.C. by G.W. Coticchio, Detroit, for defendant-appellee Levine.
Before SHEPHERD, P.J., and J.H. GILLIS and LATREILLE, * JJ.
Plaintiff appeals as of right from an order of summary disposition entered February 24, 1986, dismissing his medical malpractice claims against defendants Detroit Receiving Hospital, Harper Grace Hospital, Dr. Robert B. Stanley and Dr. Donald Levine. We affirm.
This case arises out of the care and treatment provided plaintiff in 1981 for a condition which was eventually diagnosed as tuberculosis. On June 29, 1981, plaintiff reported to the emergency room of Detroit Receiving Hospital, complaining of pain and swelling in his neck. He was released the following day with a diagnosis of soft-tissue swelling of the neck and anterior cervical lymphadenopathy and was instructed to report to the hospital's ears, nose and throat clinic. Sometime between June 30, 1981, and July 7, 1981, plaintiff contacted the clinic and was examined by defendant Robert Stanley, an ears, nose and throat specialist.
Dr. Stanley admitted plaintiff to Detroit Receiving Hospital on July 8, 1981. Various tests and examinations were performed including a tuberculosis test administered on July 17, 1981. On July 18, 1981, prior to receiving the results of the tuberculosis test, Dr. Stanley performed surgery on plaintiff's neck, draining the abscess on plaintiff's parotid (salivary) gland. Two days later Dr. Stanley noted on plaintiff's hospital chart that plaintiff had tested positive for tuberculosis and was in need of consultation with a specialist in infectious diseases. On that same day, July 20, 1981, plaintiff was examined by defendant Donald Levine, an infectious disease specialist, in consultation with Dr. Stanley. However, no further diagnosis of or treatment for tuberculosis followed, and plaintiff was discharged on July 24, 1981.
Plaintiff thereafter returned to Dr. Stanley with the same symptoms and complaints. On August 17, 1981, plaintiff was admitted to Harper Grace Hospital with a diagnosis of parotid wound infection. According to plaintiff, a note written by Dr. Stanley on plaintiff's hospital chart on August 17, 1981, indicated, that the results of the tuberculosis test were pending and authorized the hospital staff to administer a second tuberculosis test. The second test was performed on August 22, 1981. Surgery was again performed on August 25, 1981, and, based on the results of the pathology report, plaintiff was diagnosed on August 28, 1981, as suffering from tuberculosis. Plaintiff was treated and released from Harper Grace Hospital on August 31, 1981.
Plaintiff filed this action on June 30, 1983, alleging that defendants were negligent in treating him for an abscess rather than tuberculosis. Specifically, plaintiff alleged negligence in defendants' failure to: (1) obtain and maintain appropriate medical records, (2) properly diagnose plaintiff's condition during his hospitalization at Detroit Receiving Hospital, (3) administer proper diagnostic tests, (4) refer to the results of the tuberculosis test prior to performing surgery, (5) refrain from performing unnecessary surgery and (6) provide adequate postoperative care.
All of the defendants answered the complaint and discovery proceeded. Although all parties were required under local court rule to submit their witness lists no later than December 30, 1984, plaintiff did not submit his list until March 19, 1985. Wayne Circuit Court Rule 2.301(4) (rescinded, effective March 1986). Defendant Stanley moved to strike plaintiff's witness list as untimely, and an order granting the motion was entered by the assigned pretrial judge on May 14, 1985. The order was granted without prejudice to "plaintiff's right to seek relief from the Chief Judge of the Wayne County Circuit Court." On May 22, 1985, plaintiff's motion to submit a late witness list was denied. His motion for rehearing was denied by order of May 28, 1985.
On December 18, 1985, defendant Stanley filed a motion for summary disposition, which motion was subsequently joined in by the remaining defendants. Following oral argument on January 24, 1986, before the assigned pretrial judge, defendants' motion for summary disposition was granted on the ground that plaintiff would be unable to support his claim of medical malpractice at trial because he was precluded from calling any expert witnesses. A final order was entered February 24, 1986, from which plaintiff now appeals as of right.
Initially, we reject plaintiff's procedural challenges to the order of summary disposition as lacking in merit. While it is true that defendants failed to identify the specific subrule under which they sought summary disposition, it is apparent from the written motions and from oral argument that defendants' motion was at all times premised on plaintiff's inability to establish a prima facie case of medical malpractice because of the lack of expert testimony. Plaintiff could not have been confused or misled in defending against defendants' motion, and, indeed, our review of the pleadings and transcript reveals that plaintiff clearly understood the issue before the court. Compare Wells v. Firestone Tire & Rubber Co., 421 Mich. 641, 646 n. 1, 364 N.W.2d 670 (1984), where the designations summary and accelerated judgment were confused, with Hankins v. Elro Corp., 149 Mich.App. 22, 25-26, 386 N.W.2d 163 (1986), where the confusion involved the subrules under the former summary judgment court rule, GCR 1963, 117.2. Moreover, since defendants' motion rests entirely on the pleadings, the lack of impartiality in defendants' affidavits is irrelevant to our review and disposition of this case.
Plaintiff raises several additional arguments challenging the order of summary disposition on its merits. We first hold that plaintiff is required to provide expert testimony in order to establish his prima facie case of medical malpractice against the defendants. Rice v. Jaskolski, 412...
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