Snyder v. Advantage Health
| Decision Date | 18 November 2008 |
| Docket Number | Docket No. 274327. |
| Citation | 760 N.W.2d 834,281 Mich. App. 493 |
| Parties | SNYDER v. ADVANTAGE HEALTH PHYSICIANS. |
| Court | Court of Appeal of Michigan — District of US |
Grysen & Associates, Spring Lake (by B. Elliot Grysen) for the plaintiffs.
Smith Haughey Rice & Roegge, Grand Rapids (by Jon D. Vander Ploeg and Carol D. Carlson) for the defendants.
Before: WILDER, P.J., SAAD, C.J., and SMOLENSKI, J.
Plaintiff1 appeals by leave granted the lower court's order granting defendants leave to file a notice of nonparty fault against Dr. Chad Williams. We reverse and remand.
Before August 2002, plaintiff was active and in good health, and a patient of Caledonia Family Practice and of Dr. Jennifer H. Battiste. In August 2002, plaintiff went to the Caledonia Family Practice with complaints of numbness in her toes and fingers, and was examined at that time by Dr. Battiste. In September 2002, lumbar spine x-rays taken at Saint Mary's Mercy Medical Center (St.Mary's) revealed mild disc space narrowing in the lower lumbar spine. A magnetic resonance imaging (MRI) of plaintiff's lumbar spine conducted on the same day at St. Mary's revealed a mass in plaintiff's uterus. In light of this result, Dr. Battiste advised plaintiff to have an ultrasound. In early October 2002, Dr. Williams, a radiologist, performed, at St. Mary's, the ultrasound recommended by Dr. Battiste. A few days later, Dr. Williams authored a report that interpreted the ultrasound study to find a lipoleiomyoma (a common benign, smooth muscle tumor in the uterus). Williams's report interpreted the mass to represent a 7.2 cm lipoleiomyoma.
A copy of Dr. Williams's ultrasound report was sent to Dr. Battiste, who informed plaintiff that the mass was benign. Dr. Battiste did not recommend any additional workup or a consultation with a gynecologist.
Plaintiff suffered heavy postmenopausal bleeding in May and July 2003. At the end of July 2003, plaintiff's gynecologist diagnosed the mass in plaintiff's uterus as a liposarcoma (a form of cancer). In July 2003, plaintiff underwent extensive surgery to remove her uterus, ovaries, fallopian tubes, and cervix. Unfortunately, the cancer had already spread, and the operating physicians were unable to remove all of it. According to plaintiffs, had plaintiff's uterine mass been timely diagnosed as a liposarcoma, and had surgery to remove it been performed in October 2002 instead of July 2003, plaintiff's chances of survival would have been greater than 90 percent, but with the delayed diagnosis her chances of survival dropped to less than 15 percent.
In July 2004, plaintiffs, pursuant to MCL 600.2912b, sent a notice of intent to sue to St. Mary's and its employees and providers, Dr. Williams and any employing professional corporation, Dr. Battiste and any employing professional corporation, Caledonia Family Practice and its employees and providers, and Advantage Health Physicians and its employees and providers. On November 5, 2004, counsel for potential defendant St. Mary's acknowledged receipt of the notice of intent to sue St. Mary's and informed plaintiffs' counsel that she represented St. Mary's.2 Counsel for St. Mary's then spoke with plaintiffs' attorney over the telephone, in which conversation plaintiffs' counsel informed St. Mary's counsel that plaintiffs would not be suing St. Mary's or Dr. Williams. Upon learning this, counsel for St. Mary's immediately stopped working on the case. None of the potential defendants provided a written response to the initial notice of intent.
On November 15, 2004, after reviewing the available medical reports and records and consulting with their experts, plaintiffs filed an amended notice of intent to sue (NOI). This amended NOI omitted Dr. Williams and St. Mary's as potential defendants. It is unclear from the record which potential defendants, if any, responded to this amended NOI.
On February 15, 2005, plaintiffs filed a complaint naming Advantage Health Physicians, Caledonia Family Practice, and Dr. Battiste as defendants. The complaint did not name St. Mary's or Dr. Williams as defendants. Counsel who had previously represented potential defendant St. Mary's was retained to represent the named defendants, and filed an answer on their behalf on March 18, 2005. Defendants did not file a notice of nonparty at fault within "91 days after the party files its first responsive pleading." MCR 2.112(K)(3)(c). However, after discovery, during which the records of Dr. Donald Heggen, plaintiff's obstetrician/gynecologist, first became available in the litigation, defendants, on December 13, 2005, filed a motion to permit the delayed filing of a notice of nonparty fault naming Dr. Heggen. Defendants asserted "that the facts on which the notice is based were not and could not with reasonable diligence have been known to the moving party earlier." Plaintiff did not oppose this motion. On February 6, 2006, the trial court entered an order granting defendants' motion, and on February 9, 2006, defendants filed a notice of nonparty fault against Dr. Heggen.
In April 2006, a cancerous mass was discovered in plaintiff's lung.
On August 24, 2006, Dr. Williams was deposed. According to defense counsel, Dr. Williams was not represented by counsel at his deposition. The following exchange took place between plaintiff's counsel and Dr. Williams:
Q. So from the radiographic appearance on ultrasound and MRI, were you able to say with certainty what was causing this mass?
A. No, not with a hundred percent certainty.
* * *
Q. Were you able to reach the conclusion that this mass was benign or malignant to a hundred percent degree or certainty by just the radiographic appearance?
A. A lipoleiomyoma is benign, therefore, my impression was that this was a benign mass.
Q. And my question was, were you able to reach that conclusion to a hundred percent degree of certainty without tissue diagnosis?
* * *
A. Obviously not in this case, because I was wrong.
* * *
Q. We took Dr. Battiste's deposition, and she did have some recollection of talking to you. Have you reviewed that?
A. No.
Q. I'll read it to you and then hand it to you. She said at page 41, I asked her — I was taking the deposition — "and do you recall what the conversation was about?" And her answer was, "Just his definition of a lipoleiomyoma, to make sure that I was giving the correct information to her." And I said, "Sure, and what was his definition of a lipoleiomyoma?" His answer was that it was a fibroid, and the question was, "Okay" — from me against [sic] — "Did you have any conversations with the radiologist about whether he believed it was malignant or benign." "Do you know if lipoleiomyomas are benign?" She answered, "I don't know that." "Do you know what percentage of lipoleiomyomas are benign?" And her answer was, "No."
Do you know, based upon your training, as to what percentage of lipoleiomyomas are benign?
A. 100 percent are benign.
Q. All right. If that's true, and I think you told me that earlier, how is it that this one turned out to be malignant?
* * *
A. This was not a lipoleiomyoma.
When Dr. Alexander was deposed on August 25, 2006, he testified as follows, criticizing the radiological interpretation of the plaintiff's pelvic ultrasound:
Q. [By plaintiff's counsel] Can you tell us how you believe a reasonable and prudent radiologist interpreting this ultrasound would — what would be the interpretation — the official interpretation given?
* * *
A. Would be something like irregularly — irregular, incompletely seen hyperechoic uterine mass. Not typical of leiomyoma. And I would suggest a follow-up MRI — full pelvic MRI for further assessment.
Q. Can the diagnosis of what type of mass this is be made by the radiologist?
* * *
A. Ultimately, tissue typing can never be made. We can — we can come close on a full MRI using fat saturation and so forth, but ultimately, no.
* * *
Q. To the best of your recollection, in the conversations that you had with me about these films in 2004, did you express any criticisms of either of the radiologists who read these films?
A. I believe that I felt that they hadn't completely investigated the imaging of this lesion —
Q. Okay.
A. — and didn't request such.
Q. Did you reach an opinion as to whether that violated any standards of radiographic interpretation to suggest exactly what tests should be done?
* * *
A. Yes. As I said, I think this was — should not have been left as done.
On cross-examination, Alexander indicated that had the radiologists who read the MRI been named as defendants in this action, he would have been comfortable opining that the radiologist's interpretive work fell below the requisite standard of care.
After receiving the transcript of Dr. Williams's deposition, defendants, on October 17, 2006, and pursuant to MCR 2.112(K), moved in the trial court for leave to file a notice of nonparty fault against Dr. Williams. Defendants argued that the delay in seeking permission to file such a notice was not caused by dilatory conduct but by a surprising revelation during discovery that Dr. Williams may be at fault.
Plaintiffs opposed the motion, arguing that because the notice of intent included Williams, and because counsel represented St. Mary's, Dr. Williams's employer, when the notice of intent was mailed, there was no reason why defendants could not have discovered Dr. Williams's potential liability in the two years since the notice of intent was sent. Plaintiffs argued that defendants took no action to investigate whether Dr. Williams was negligent in interpreting the ultrasound.
A hearing on defendants' motion to file a delayed notice of nonparty fault was held on October 20, 2006. The trial court agreed with defendants, and granted the motion.
On October 31, 2006, plaintiffs filed a second amended NOI. This NOI was addressed, among others, to St. Mary's and its employees, Dr....
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