Gay v. Select Specialty Hospital
295 Mich. App. 284
| Mich. Ct. App. | 2012Background
- Dolores Wright, admitted for rheumatoid conditions in Oct 2003, suffered a fatal fall after a nurse left her unattended on a commode in Nov 2003.
- Patricia Gay, as personal representative of Wright's estate, sued Select Specialty Hospital in Nov 2008 for nursing malpractice.
- Gay submitted Kathleen Boggs, RN, as an expert via affidavit of merit stating conditional standard-of-care duties to prevent a fall.
- Hospital moved to strike Boggs as unqualified under MCL 600.2169(1) and to dismiss the complaint; Gay sought to add a substitute expert.
- Trial court found Boggs did not meet the professional-time qualifications (l(b)) and dismissed the case with prejudice; ordered no alternate expert.
- Appellate court reversed, holding Boggs met the qualifications, requiring remand for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Boggs met MCL 600.2169(1)(b) qualifications | Gay asserts Boggs spent majority time in active clinical nursing or teaching. | Hospital contends Boggs did not spend majority time in qualifying activities. | Boggs met the qualifications; trial court erred in striking her. |
| Whether dismissal was proper given the failed expert proffer | Gay argues substitution or amendment could cure the defect or dismissal without prejudice is appropriate. | Hospital argues dismissal with prejudice was proper due to lack of timely, qualified expert. | Remand for proceedings; not sufficient to terminate with prejudice at this stage. |
| Whether dismissal with prejudice was proper under the wrongful death saving period | Kirkaldy tolls the limitations for defective affidavit of merit; could refile within the saving period. | Ligons negates tolling the wrongful death saving period; no time remains. | Dismissal with prejudice appropriate because no remaining wrongful death saving period. |
Key Cases Cited
- Siirila v Barrios, 398 Mich 576 (1976) (standard-of-review for expert qualification and discretion)
- Daubert v Merrell Dow Pharm, Inc., 509 US 579 (U.S. Supreme Court 1993) (gatekeeper reliability and relevance in expert testimony)
- Gilbert v DaimlerChrysler Corp, 470 Mich 749 (2004) (proper gatekeeping and application of law to expert testimony)
- Kumho Tire Co Ltd v Carmichael, 526 US 137 (1999) (broad gatekeeping standard extending to non-scientific experts)
- People v Whitfield, 425 Mich 116 (1986) (limits on admissibility and trial court discretion)
- Adair v Michigan, 486 Mich 468 (2010) (application of law governing expert qualifications in Michigan)
- Cooter & Gell v Hartmarx Corp, 496 US 384 (1990) (extraneous considerations and abuse of discretion)
- Lukity v People, 460 Mich 484 (1999) (abuse of discretion standard when applying law)
- Kidder v Ptacin, 284 Mich App 166 (2009) (arising from erroneous application of statute in expert qualification)
- Kiefer v Markley, 283 Mich App 555 (2009) (interpretation of the professional-time requirements under MCL 600.2169)
- Dean v Tucker, 182 Mich App 27 (1990) (distinguishes discovery sanctions from expert qualification issues)
- Ligons v Crittenton Hosp, 285 Mich App 337 (2009) (wrongful death saving period tolling and dismissal consequences)
- Kirkaldy v Rim, 478 Mich 581 (2007) (tolling impact on wrongful death saving period)