Welniak v. Alcantara

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM
• Citation: Welniak v. Alcantara, 300 N.W.2d 323, 100 Mich.App. 714 (Mich. App. 1980)
• Decision Date: 18 September 1980
• Docket Number: Docket No. 45097
• Parties: Constance J. WELNIAK, as Administratrix of the Estate of Opal Strzepek, Deceased, Plaintiff-Appellant, v. Lucilo ALCANTARA, M. D., Raymond Suwinski, M. D., and Conant Clinic, a Michigan corporation, jointly and severally, Defendants-Appellees. 100 Mich.App. 714, 300 N.W.2d 323

Page 323

300 N.W.2d 323

Constance J. WELNIAK, as Administratrix of the Estate of Opal Strzepek, Deceased, Plaintiff-Appellant, v. Lucilo ALCANTARA, M. D., Raymond Suwinski, M. D., and Conant Clinic, a Michigan corporation, jointly and severally, Defendants-Appellees.

Docket No. 45097.

100 Mich.App. 714, 300 N.W.2d 323

Court of Appeals of Michigan.

Sept. 18, 1980.

Released for Publication Jan. 29, 1981.

[100 MICHAPP 715] Michael P. Pianin, Southfield, for plaintiff-appellant; Carl L. Gromek, Detroit, of counsel.

Charles F. Glass, Detroit, for defendants-appellees.

Before GILLIS, P. J., and V. J. BRENNAN and MILLER, ^* JJ.

PER CURIAM.

This malpractice action was commenced on April 11, 1975, in Wayne County Circuit Court against Dr. Lucilo Alcantara, Dr. Raymond Suwinski, the Conant Clinic, and North Detroit General Hospital. On April 24, 1979, following a partial consent judgment between plaintiff and North Detroit General Hospital, the case proceeded to trial as to the remaining defendants. After the jury was selected and plaintiff's opening statement, defendants moved for a directed verdict. Following argument, the trial court granted the motion and denied plaintiff permission to amend her pleadings. Plaintiff appeals as of right.

This litigation arose out of the October 13, 1974, death of plaintiff's decedent Opal Strzepek, alleged to have resulted from defendants' negligence. Ms. Strzepek died following an improper blood transfusion at North Detroit General Hospital. She had [100 MICHAPP 716] been a patient of the other defendants for some time prior to her death and had been treated by them for severe vaginal bleeding since 1969. Plaintiff theorized that improper treatment by Dr. Alcantara and Dr. Suwinski contributed to the death.

The basis of the motion for directed verdict was that plaintiff's pleadings failed to state a cause of action. The nature of medical malpractice litigation requires that factual allegations be more specific than might otherwise be necessary. They must inform a defendant of the negligent acts or omissions complained of and indicate what the prevailing medical standards would have required. Simonelli v. Cassidy, 336 Mich. 635, 643, 59 N.W.2d 28 (1953). The purpose is to provide a defendant with sufficient notice to prepare a defense to the charges.

Plaintiff's allegations were general and provided no reference to prevailing medical standards. They were clearly defective under Simonelli, supra. However, this did not justify a directed verdict. In Simonelli, the defendant specified in his answer that the plaintiff's declaration failed to state a claim and moved to strike and dismiss. The answer reserved these motions and indicated that they would be brought up for hearing at trial. Id., 638, 59 N.W.2d 28. In the instant case, defendants failed to challenge the pleadings prior to plaintiff's opening remarks.

A trial court may direct a verdict following an opening statement where facts are conceded that demonstrate that no cause of action exists or where the opening statement puts forth an entirely new theory of liability and counsel admits that the theory pled cannot be proven. Tyus v. Booth, 64 Mich.App. 88, 235 N.W.2d 69 (1975), [100 MICHAPP 717] Makuck v. McMullin, 87 Mich.App. 82, 273 N.W.2d 595 (1978). However, such directed verdicts are not favored and are improper when based on lack of particularity in the pleadings where the moving party has failed to move for a more definite statement under GCR 1963, 115.1. Fenton Country House, Inc. v. Auto-Owners Ins. Co., 63 Mich.App. 445, 234 N.W.2d 559 (1975). Here, although the pleadings were not satisfactory, it was not at all clear that no cause of action existed.

The correct action for the lower court would have been to permit plaintiff to amend her pleadings to more fully inform the defendants of her claims. While amendment is necessarily a matter of trial court discretion, that discretion is limited and leave is to be denied only for particular reasons, such as undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by previous amendm...