Potter v. Murry
| Decision Date | 20 March 2008 |
| Docket Number | Docket No. 262529.,Docket No. 263538. |
| Court | Court of Appeal of Michigan — District of US |
| Parties | Brian POTTER, Plaintiff-Appellee/Cross-Appellee, v. Kristyn H. MURRY, M.D., and Huron Valley Radiology, P.C., Defendants-Appellants, and St. Joseph Mercy Hospital Ann Arbor, d/b/a/ Trinity Health-Michigan, Defendant/Cross-Appellant, and Richard C. McLeary, M.D., Gary Augustyn, M.D., Robert Domeier, D.O., and Emergency Physicians Medical Group, P.C., Defendants. Brian Potter, Plaintiff-Appellee/Cross-Appellee, v. Robert Domeier, D.O., and Emergency Physicians Medical Group, P.C., Defendants-Appellants, and St. Joseph Mercy Hospital Ann Arbor, d/b/a/ Trinity Health-Michigan, Defendant/Cross-Appellant, and Richard C. McLeary, M.D., Kristyn H. Murry, M.D., and Gary Augustyn, M.D., and Huron Valley Radiology, P.C., Defendants. (On Remand) |
Siemion, Huckabay, Bodary, Padilla, Morganti & Bowerman, P.C. (by Susan J. Zbikowski), Southfield, for Robert Domeier, D.O., and Emergency Physicians Medical Group.
Foley, Baron & Metzger, PLLC (by Judith A. Sherman and Carole S. Empey), Ann Arbor, for St. Joseph Mercy Hospital Ann Arbor.
Chapman and Associates, P.C. (by Ronald W. Chapman, Brian J. Richtarcik, and David B. Mammel), Bloomfield Hills, for Kristyn Murry, M.D., and Huron Valley Radiology, P.C.
Before: WILDER, P.J., and ZAHRA and DAVIS, JJ.
ON REMAND
In these consolidated appeals, defendants appealed by leave granted orders in this medical malpractice action denying their motions for summary disposition pursuant to MCR 2.116(C)(7). Previously, a majority of this Court reversed, holding that plaintiff's complaint should be dismissed with prejudice because the attached affidavits of merit did not conform to the requirements of MCL 600.2912d. Potter v. McLeary, 274 Mich.App. 222, 732 N.W.2d 600 (2007). In lieu of granting leave to appeal, our Supreme Court reversed the portion of this Court's judgment "dismissing the complaint with prejudice, because the dismissal should have been without prejudice...." See 480 Mich. 915, 739 N.W.2d 866 (2007) (emphasis in original). Our Supreme Court remanded to this Court for consideration of the remaining issues not addressed previously. We now affirm in part, reverse in part, and remand.
As noted in our previous opinion, the alleged malpractice took place on June 7, 2001. The period of limitations in medical malpractice cases is two years from the date the claim accrued. MCL 600.5805(6). Presuming the notice of intent was sufficient, the running of the period of limitations would have been tolled for 182 days from the date of the notice. MCL 600.2912b(1). A notice of intent was sent to defendants Huron Valley Radiology, P.C., and Kristyn H. Murry, M.D., on May 30, 2003, leaving eight days remaining before the period of limitations expired. A notice of intent was sent to defendants St. Joseph Mercy Hospital Ann Arbor, Robert Domeier, D.O., and Emergency Physicians Medical Group, P.C., on May 13, 2003, leaving 25 days before the period of limitations expired. The notices tolled the running of the limitations periods, which recommenced on November 30, 2003, and on November 13, 2003, respectively. The limitations period expired on December 8, 2003, for all defendants. Plaintiff's complaint was filed on November 4, 2003.
There was no serious dispute in our prior decision that the affidavits of merit were fatally defective because they failed state how the physicians' alleged failures related to plaintiff's alleged injuries, so they did not contain the required statement of proximate cause. See MCL 600.2912d. No conforming affidavits of merit were filed by December 8, 2003. A majority of this Court previously determined that plaintiff had therefore not filed an affidavit of merit at all, pursuant to Geralds v. Munson Healthcare, 259 Mich. App. 225, 240, 673 N.W.2d 792 (2003), and Mouradian v. Goldberg, 256 Mich.App. 566, 574, 664 N.W.2d 805 (2003), so plaintiff's complaint should be dismissed with prejudice. This Court therefore deemed it unnecessary to address defendants' challenges to plaintiff's notices of intent.
After this Court's previous decision, our Supreme Court overruled Geralds and Mouradian as having misapplied the case of Scarsella v. Pollak, 461 Mich. 547, 553, 607 N.W.2d 711 (2000). Kirkaldy v. Rim, 478 Mich. 581, 583-584, 734 N.W.2d 201 (2007). Our Supreme Court explained that Scarsella had only held that "a medical-malpractice complaint filed without an affidavit of merit" was ineffective and would not toll the running of the applicable limitations period. Id. at 584, 734 N.W.2d 201 (emphasis in original). It further explained that Geralds and Mouradian had wrongly extended that holding to medical-malpractice complaints that were actually filed with affidavits of merit, but where those affidavits of merit failed to conform to the requirements of MCL 600.2912d. Kirkaldy, supra at 584-585, 734 N.W.2d 201. Our Supreme Court concluded that an affidavit of merit is presumptively valid — and therefore tolls the running of a limitations period when filed with a complaint — until successfully challenged in a judicial proceeding. Id. at 585-586, 734 N.W.2d 201. "Thus, if the defendant believes that an affidavit is deficient, the defendant must challenge the affidavit," and the proper remedy for a successful challenge is dismissal without prejudice, affording the plaintiff "whatever time remains in the period of limitations" to file a complaint with a conforming affidavit. Id. at 586, 734 N.W.2d 201.
Our Supreme Court's partial reversal in this case was based on its decision in Kirkaldy. As applied to the case at bar, plaintiff's complaint, filed with the affidavits of merit, tolled the running of the limitations period. Because we conclude that those affidavits of merit did not conform to the requirements of MCL 600.2912b, the proper remedy is for the trial court to dismiss plaintiff's complaint without prejudice. Plaintiff may then file a new complaint with conforming affidavits of merit within the time remaining in the limitations period.
Because we declined to do so previously, we must address defendants Murry's and Huron Valley Radiology's challenges to the sufficiency of the notices of intent sent to them.1 Murry and Huron Valley Radiology first argue that the notice does not properly state the applicable standard of practice or care as required by MCL 600.2912b(4)(b). We agree, in part. The second paragraph of plaintiff's notice sets forth the following standard of care:
The standard of care required Drs. Murry and/or [Gary] Augustyn and/or [Richard C.] McLeary to correctly read, interpret and report the correct results to the emergency room under the circumstances. Notwithstanding that standard of care, Drs. Murry and/or Augustyn and/or McLeary failed to properly interpret the MRI images and convey accurate information to the emergency room physician in charge of the patient that night.
The standard of care completely fails to make any reference to defendant Huron Valley Radiology. Our Supreme Court has explained that plaintiff is not obligated to provide a completely correct standard of care, but "plaintiff was required to make a good-faith averment of some particularized standard for each of the professionals and facilities named in the notices." Roberts v. Mecosta Co. Gen. Hosp. (After Remand), 470...
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