Kalaj v. Khan
295 Mich. App. 420
| Mich. Ct. App. | 2012Background
- Plaintiff Kalaj injured his head and neck in a July 2006 diving accident.
- Khan, a diagnostic radiologist, reviewed July 31, 2006 x-rays and deemed them negative for fracture.
- On August 8, 2006, Cesul treated Kalaj and his x-rays were read as consistent with a C5 fracture by Cesul.
- Beaumont imaging confirmed a C5 fracture; MRI showed a tear drop fracture with spinal cord mass effect.
- Plaintiffs filed a medical malpractice action in January 2009; Mirvis submitted an affidavit of merit claiming negligence.
- Mirvis later learned the films he reviewed were not the Basha films; the actual Basha films were not located.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Elimination of affidavit viability when films misidentified | Kalaj argues Mirvis's affidavit meets MCL 600.2912d despite misidentified films. | Khan contends Mirvis lacked foundation without reviewing the Basha films. | Affidavit complies; dismissal improper |
| Statutory foundation under MCL 600.2912d(l) | Mirvis reviewed records provided by plaintiffs; sufficient foundation under statute. | Review of missing Basha films is required for proper foundation. | Review of Basha films not required; affidavit adequate on its face |
| Role of missing evidence in evaluating affidavit at this stage | Absence of Basha films affects weight, not admissibility at initial stage. | Without Basha films, credibility issues render the affidavit invalid. | Striking affidavit without Basha films was error; abuse of discretion avoided |
Key Cases Cited
- Sturgis Bank & Trust Co v Hillsdale Community Health Ctr, 268 Mich App 484 (2005) (establishes scope of affidavit-of-merit inquiry under 600.2912d)
- Grossman v Brown, 470 Mich 593 (2004) (statutory framework for affidavit of merit; scope of evaluation at initial stage)
- Ligons v Crittenton Hosp, 490 Mich 61 (2011) (requires affidavit elements; standard of care and breach definitions)
- Jackson v Detroit Med Ctr, 278 Mich App 532 (2008) (abuse of discretion standard; interpretation of 600.2912d)
- Craig v Oakwood Hosp, 471 Mich 67 (2004) (elements of medical malpractice and need for expert testimony)
- Decker v Rochowiak, 287 Mich App 666 (2010) (necessity of expert testimony to establish standard of care and breach)
- Teal v Prasad, 283 Mich App 384 (2009) (causation and expert testimony considerations in medical malpractice)