O'Toole v. Fortino

• Decision Date: 03 June 1980
• Docket Number: Docket No. 44422
• Parties: Martin O'TOOLE, Administrator of the Estate of Genevieve S. O'Toole, Deceased, and Martin O'Toole, individually, Plaintiff-Appellant, v. Silvio P. FORTINO, M. D., William P. Drescher, M. D., Daniel E. Williams, M. D., Harry J. Schmidt, M. D., and their Professional Corporation and Associations, jointly and severally, Defendants-Appellees. 97 Mich.App. 797, 295 N.W.2d 867
• Court: Court of Appeal of Michigan — District of US

Page 867

295 N.W.2d 867

Martin O'TOOLE, Administrator of the Estate of Genevieve S O'Toole, Deceased, and Martin O'Toole individually, Plaintiff-Appellant, v. Silvio P. FORTINO, M. D., William P. Drescher, M. D., Daniel E. Williams, M. D., Harry J. Schmidt, M. D., and their Professional Corporation and Associations, jointly and severally, Defendants-Appellees.

Docket No. 44422.

97 Mich.App. 797, 295 N.W.2d 867

Court of Appeals of Michigan.

June 3, 1980.

Released for Publication Sept. 24, 1980.

[97 MICHAPP 799] George J. Platsis, Okemos, for plaintiff-appellant.

Webb A. Smith, Lansing, for Fortino.

John L. Christensen, Detroit, for Drescher.

Richard C. Kraus, Lansing, for Williams.

Eugene F. Townsend, Jr., David E. Marvin, Lansing, for Schmidt.

Before J. H. GILLIS, P. J., and ALLEN and KELLY, JJ.

J. H. GILLIS, Presiding Judge.

This is a medical malpractice action. Plaintiff appeals from summary judgments granted in favor of the defendants on the ground [97 MICHAPP 800] that plaintiff failed to state a claim upon which relief could be granted. GCR 1963, 117.2(1).

In August, 1974, Genevieve O'Toole, wife of Martin O'Toole, discovered a lump in her right breast. On September 6, 1974, Mrs. O'Toole consulted defendant Dr. Fortino for examination, evaluation and treatment of the lump. During the next year she saw Dr. Fortino three additional times. After the last visit, on August 11, 1975, Dr. Fortino referred Mrs. O'Toole to defendant Dr. Schmidt for a surgical biopsy.

The biopsy was performed by Dr. Schmidt on August 15, 1975. Pathological examination of the lump revealed it to be cancerous. A radical mastectomy of her right breast was performed by Dr. Schmidt on August 21, 1975.

The next day, at the request of Dr. Schmidt, defendant Dr. Williams, an oncologist, undertook the treatment of Mrs. O'Toole. Over the next 15 months, Dr. Williams prescribed chemotherapy and radiation therapy for Mrs. O'Toole. On November 29, 1976, Mrs. O'Toole consulted Dr. Williams concerning a lump on her right shoulder. On December 13, 1976, the lump was removed by Dr. Williams and found to be cancerous. A single chemotherapy treatment followed on December 17, 1976. On December 22, 1976, Genevieve O'Toole died.

On December 22, 1976, defendant Dr. Drescher was the assistant medical examiner for Ingham County. On that date, Dr. Drescher, based on Mrs. O'Toole's medical history and body condition, determined that an autopsy was not required. He further determined that the cause of her death was pneumonia and that "metastatic carcinoma of breast" was an "other significant condition" contributing to the death.

[97 MICHAPP 801] Plaintiff filed his original complaint on May 17, 1977. Plaintiff thereafter filed four amended complaints. Each of these complaints was found by the lower court to be deficient for their failure to comply with minimum pleading requirements. On March 14, 1979, the lower court granted summary judgments to the defendants pursuant to GCR 1963, 117.2(1). The judgment in favor of Dr. Drescher was granted on the basis of governmental immunity. The judgments in favor of the remaining defendants were granted on the basis that plaintiff had failed to comply with the pleading requirements of a medical malpractice action. Plaintiff appeals as of right from the entry of those judgments. GCR 1963, 806.1.

We address first the question of the propriety of the grants of summary judgment in favor of defendants, Drs. Fortino, Williams and Schmidt.

GCR 1963, 111.1 provides in part:

"A pleading which sets forth a claim for relief, whether a complaint, counterclaim, cross-claim or third-party claim, shall contain

"(1) a statement of the facts without repetition upon which the pleader relies in stating his cause of action with such specific averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend."

The general requirement of stating the "facts" on which the pleader relies in stating his "cause of action" relates to separate requirements of a pleading. The primary requirement is that the pleading must give notice of the nature of the claim sufficient to permit the preparation of a meaningful response. This requirement is addressed to the technical sufficiency of the pleading as a matter of form.

[97 MICHAPP 802] The second requirement of a pleading is that it must state a set of facts that is sufficient to meet the substantive requirements for relief. That is, the pleading must state a "claim upon which relief can be granted". GCR 1963, 117.2(1). See, 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), pp. 194-198.

Our examination of plaintiff's fourth amended complaint discloses that it is sufficient to comply with the notice requirement of GCR 1963, 111.1. It reasonably informs the adverse parties of the nature of the claim they are called upon to defend. See Hanselman v. Carstens, 60 Mich. 187, 27 N.W. 18 (1886).

We next must consider whether the second requirement of a pleading was met. Did the fourth amended complaint state a claim as to these defendants upon which relief can be granted?

The standard governing this Court's review of a grant of summary judgment due to the failure to state a claim upon which relief can be granted, GCR 1963, 117.2(1), is well settled. The motion is to be tested by the pleadings alone. Todd v. Biglow, 51 Mich.App. 346, 214 N.W.2d 733 (1974), lv. den., 391 Mich. 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman's, Inc. v. Lake State Development Co., 60 Mich.App. 175, 230 N.W.2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under the subrule should be denied, Crowther v. Ross Chemical & Manufacturing Co., 42 Mich.App. 426, 202 N.W.2d 577 (1972), Partrich v. Muscat, 84 Mich.App. 724, 729-730, 270 N.W.2d 506 (1978).

[97 MICHAPP 803] Medical malpractice must be pled more specifically than other types of negligence. Simonelli v. Cassidy, 336 Mich. 635, 644, 59 N.W.2d 28 (1953). See the comment on Simonelli in 1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed.), p. 197. General allegations of negligence are insufficient. In a medical malpractice action, every fact necessary to constitute a cause of action must be alleged with reasonable certainty and definiteness. Thus, it is essential to allege the duty of the physician to the person injured, the breach of the duty complained of, the causal relation between the breach of the duty and the injuries complained of and the resulting damage. Simonelli, at 644, 59 N.W.2d 28, quoting 70 C.J.S. Physicians & Surgeons § 61, pp. 986-987. Where the breach of duty relied on is negligence in the diagnosis and treatment of the patient, it is insufficient for a plaintiff to simply describe what a physician did or failed to do and then allege that the action or omission was negligent. The plaintiff must allege the proper or accepted method of diagnosis and treatment. Simonelli, at 643, 59 N.W.2d 28.

Plaintiff's fourth amended complaint (hereinafter referred to as complaint) must be measured against these standards to determine if it was sufficient to state a claim upon which relief can be granted.

Paragraphs 9, 10 and 11 of plaintiff's complaint state:

"9. That defendants at all times herein mentioned held themselves out as medical doctors having the required knowledge of the state of the then existing art and skill to perform the duties set forth herein.

"10. They represented that they possessed and exercised their own, prevailing and recognized standards of learning, skill, care and diligence of average medical [97 MICHAPP 804] doctors similarly situated, and acceptable professional practices in Lansing and communities similar to Lansing.

"11. In addition, defendants Schmidt, Williams and Drescher represented that they possessed and exercised their own, prevailing and recognized standard of care within their respective specialities as surgeon, oncologist and medical examiner as reasonably available under the circumstances and as applied in light of the facilities available in Lansing and communities similar to Lansing, the standard of care of a reasonable specialist practicing medicine in light of present day scientific knowledge and under the laws of this state."

Paragraphs 80, 81 and 82 state:

"80. That in evaluating said lump and any underlying condition prior to August 11, 1974, defendant Fortino owed the following duties to Genevieve and plaintiff:

"a. To evaluate the likelihood said lump was cancerous and the urgency of resolving any doubts as to the cause of said lump by conducting a physical examination of both breasts and axillary areas of Genevieve O'Toole, ascertaining her medical and family history relative to cancer and related predisposing conditions.

"b. To chart the size and location of the lump on each and every such visit aforementioned and on a monthly basis.

"c. To conduct said examinations every mid-month after her menstrual periods and after having determined the size and location of any lumps and breast structures and irregularities immediately before several of her menstrual periods.

"d. To keep abreast of available medical literature, books and correspondence immediately available to him regarding the evaluation, care and treatment of and the resolution of doubts or conflicts as to the existence, size and importance of breast lumps in a 47 year old woman such as Genevieve, and women similarly situated.

"e. To consult with another physician with more experience than he possessed regarding the evaluation [97 MICHAPP 805] of a woman who complained of a breast lump in September 1974, and thereafter on each...