Jones v. Botsford Continuing Care Corporation
871 N.W.2d 15
Mich. Ct. App.2015Background
- Amos Jones, an elderly nursing-home resident with a PEG tube, allegedly had the tube improperly reinserted at Botsford Continuing Care (BCC), leading to infection and death; Mildred Jones (personal representative) sued for medical and nursing malpractice and wrongful death.
- Plaintiff served the required notice of intent under MCL 600.2912b; defendants failed to provide the statutorily required written responses identifying factual defenses and the applicable standard of care.
- Plaintiff filed the complaint with affidavits of merit: Dr. Gregory Compton (physician; internal medicine and geriatric medicine) and Amy Ostrolenk (nurse; RN). Defendants later filed affidavits of meritorious defense (including an RN and physicians with differing board certifications).
- Defendants moved for summary disposition arguing the affidavits of merit were deficient because the affiants did not match the defendants’ specialties under MCL 600.2169 and plaintiffs counsel could not reasonably have believed they did, so MCL 600.2912d was not satisfied.
- The trial court found the affiants failed to meet MCL 600.2169 and dismissed the case; the Court of Appeals reversed and remanded, holding plaintiff’s counsel reasonably could have believed the affiants met MCL 600.2169 for presuit affidavit purposes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of nursing affidavit (RN as affiant) | Jones: given records and BCC’s failure to respond to the notice, it was reasonable to rely on an RN affidavit to support nursing malpractice claims; factual dispute over whether caregiver was LPN or RN | BCC: the caregiver who reinserted the PEG was an LPN, so an RN affiant could not match the defendant and affidavit was deficient | Court: Reversed dismissal as to nursing claims — genuine factual dispute whether caregiver was RN or LPN and counsel reasonably believed RN affiant was appropriate (also BCC failed to comply with notice-response duty) |
| Adequacy of physician affidavit (Dr. Compton) | Jones: Compton listed geriatric medicine and internal medicine specialties; Selznick held himself out (website, role as medical director) as board-certified/qualified in geriatrics, so counsel reasonably believed Compton matched the relevant specialty | Selznick/BCC: Compton did not match Selznick’s specialty; affidavit therefore failed MCL 600.2169 and MCL 600.2912d | Court: Reversed dismissal as to physician claims — at presuit stage counsel reasonably believed Compton matched the specialty (court limited decision to MCL 600.2912d sufficiency and did not decide trial admissibility under MCL 600.2169) |
| Meaning and application of “reasonably believes” (MCL 600.2912d v. MCL 600.2169) | Jones: the presuit standard demands only a reasonable belief by counsel based on available information; discovery is not yet available | Defendants: the affidavit must actually match the statutory criteria or counsel could not reasonably believe it did | Held: Court reiterates distinction — MCL 600.2912d requires reasonable belief at presuit stage (a lower standard than trial qualification under MCL 600.2169) and applied that standard in Jones’s favor |
| Dismissal with prejudice / amendment of affidavits | Jones: original affidavits were sufficient; plaintiff later submitted corrected affidavits by different affiants (and could amend) | BCC: dismissal should be with prejudice if affidavits defective | Held: Court reversed dismissal and remanded for further proceedings; did not award dismissal with prejudice; left open issues about trial-stage expert admissibility and did not need to resolve amendment question |
Key Cases Cited
- Grossman v. Brown, 470 Mich. 593 (Supreme Court) (presuit “reasonable belief” standard for affidavits of merit differs from trial admissibility under MCL 600.2169)
- Woodard v. Custer, 476 Mich. 545 (Supreme Court) (a certificate of special qualification can constitute a board certification; subspecialties qualify as specialties for matching analysis)
- Halloran v. Bhan, 470 Mich. 572 (Supreme Court) (earlier holding that an expert must match defendant’s board certification; addressed limits on subspecialty matching)
- McElhaney v. Harper-Hutzel Hosp., 269 Mich. App. 488 (Court of Appeals) (distinguishing presuit affidavit reasonableness from trial expert qualification)
- Lucas v. Awaad, 299 Mich. App. 345 (Court of Appeals) (review standard and statutory requirements for affidavits of merit)
- Bahr v. Harper-Grace Hosp., 448 Mich. 135 (Supreme Court) (specialist may testify about standard of care applicable to resident/trainee in related context)