Dacon v. Transue

Trаnsue Dacon v TRANSUE DACON v 7). (Calendar 8, January Argued Decided No. 90339. Docket No. 29, September 1992. minor, Dacon, Dacon, M. next friend of Ericca Walter Wayne malpractice brought action in Circuit a medical Lee, Transue, against E. Mon K. J. Thomas Drs. David Court Kim, provide alleging Hospital, that failure to and John St. dosage appropriate medication in treatment or duration, failing chloramphenicol, specifically to administer damage. meningitis, neurological The caused to Ericca for J., court, determining Reilly, that Maureen P. after "appropriate in his plaintiff’s of the treatment” use term vague allegation liability pleadings to an of was too to amount treatment, beginning plaintiff’s delay on denied the based jury pleadings allege theory. request to that The to his amend malprac- although pediatricians that had committed found medication, proximate it was not the tice in their choice of injuries, Hospital had not of and St. John cause malpractice. The The court found no cause of action. committed Shepherd P.J., Appeals, Doctoroff, and Gribbs, of Court curiam, per holding JJ., opinion unpublished in an affirmed delay plaintiff’s theory regarding beginning treat- that the allegation failing properly to because the ment excluded provide provide appropriate no- did not reasonable treatment (Docket allegation of No. tice to the defendants of the 95871). appeals. plaintiff The opinion by joined by Chief Justice Brickley, In an Justice Riley Cavanagh Supreme Griffin, Court and Justices held: plaintiff did not The trial court’s determination failing provide comply notice with MCR 2.111 in reasonable beginning theory delay in the of treatment was conclusory allegations correct; general pleadings offer deny provide not reasonable notice. The decision did theory complaint request plaintiff’s to amend his add 2.118(C)(2) clearly an indicates that offer was correct. MCR also rejected during unless it is pleadings trial be amend should party affirmatively that the would be established adverse requested plaintiff to make prejudiced. made nor neither 441 Mich 315 showing. such a did not show that the trial court applying abused its discretion in its decision. complaint provide opposing 1. A must reasonable notice to parties. 2.111(B)(1) liability, specifies To assert a MCR allegation facts, repetition, that an must state the without relies, pleader specific which the allegations and state the necessary reasonably party to inform the adverse of the claims. case, plaintiff’s allegation pediatricians In this the that the did provide appropriate not treatment or medication in dosage specifically or generally any duration did not refer to By alleging everything, alleged nothing. facts. it The trial court distinguishing did not abuse its discretion in between the theory may injury that Ericca have suffered because of the particular failure to theory administer a medication and the may injury that she have suffered because of in the therapy, excluding theory. initiation of and in the latter 2.118(C)(2) 2. requirements MCR establishes strict for amend- ing pleading trial, during requiring requesting a party the to satisfy prejudice the court that the amendment would not the objecting party. plaintiff Because the neither made this show- ing it, correctly nor asked to make the trial court denied his request addition, to correctly amend. In the court ruled that he provided had not reasonable notice to the defendants and that prejudicial surprise. plaintiff amendment would may cause A rely upon facially allegation, a insufficient which necessi- amendment, prejudicial surprise

tated by to alleviate caused the amendment. properly 3. applied The trial court its decision that the plaintiff plead delay did not in the administration of antibiotics as a violation of the standard of care. It did not exclude evidence of causation. concurring, Boyle, Justice stated that the sole issue is refusing whether the plaintiff trial court erred in to allow the pleading during to amend his additionally allege trial to delaying defendants were liable for the initial administra- tion complaint of antibiotics. The failed to set forth facts regarding delay, plaintiff such a provide and the failed to interrogatories answers to sharpened that could have the issues sufficiently provide adequate to theory notice of the in advance addition, plaintiff’s of trial. In summary mediation opening statement focused on the defendant’s fаilure to treat. plaintiff’s theory

While might adequate have been under 2.111, adequate 2.118(C)(2). MCR it was not notice under MCR practice, education, discovery, Motion and the considerable management authority designed of the trial court are to insure Dacon v Transue instances, parties litiga- that, to civil but the rarest in all they try to be and how will tion know what issues are tried of in this case was not an abuse them. The trial court’s refusal discretion.

Affirmed. dissenting, Mallett, joined by Justice Levin, stated Justice fully adequately in- the defendants were because expert plaintiff’s and her mediation statement formed deposition theory Drs. Kim and Lee vio- of witness’ her failing to administer correct the standard care lated to John within one hour of her admission St. medication treating child Hospital, a and that time is of essence meningitis, her her failure seek amend with bacterial excluding expert theory justify complaint to state that does not testimony supportive of it. might a new it to a to introduce Just as be unfair defendant trial, so, too, plaintiff ignore a is it unfair to issue at plaintiff’s has claims the defendant actual notice of interrogatories, discovery depositions, answers to received statements, To before trial. or other documents filed mediation opportunity support deny present evidence in an recovery have such which the defendants had of a tanta- is to reintroduce extreme formalism full and fair notice straightjacket If forms of action. to the ancient mount discovery, deposition developed during in specific facts on interrogatories, fully response in the com- must stated be exclusion, necessary peril plaint it will become to avoid the of discovery completed, plaintiffs, seek to has been for after specific developed complaints the facts their to set forth amend during discovery. Implicit in the were on notice the claim that defendants they provide plaintiff an effective the had failed claimed have claim that an effective antibiotic should antibiotic the administered, initially subsequently. timely trial and been concerning rulings striking barring testimony the and court’s timely urgency of of administration effective antibiotic the concerning urgency therapy only the of excluded evidence administering therapy during delay the avoiding in antibiotic hospital, plaintiff the in the one-half hours was first three and avoiding concerning urgency the of evidence but also excluded during therapy administering first the in antibiotic hospital. twenty-four in that she was the hours regarding the hour at which that was stricken The evidence only begun probative not should have antibiotic treatment In of care also of the issue causation. of the standard of but Mich Opinion the of Court striking plaintiff’s testimony expert the concern- witness’ trial ing hour the when the administration of antibiotics should begun, barring have and in cross-examination of the defen- expert treating physicians of dants’ witness and defendant concerning the of hour when administration antibiotics begun, plaintiff effectively have should the court barred introducing probative concerning from evidence issue of causation, may persuaded jury evidence that have that the twenty-four-hour delay administering chloramphenicol in causally right-sided hemiparesis related to her and seizures. question question timing of choice of medicine and the of delay medicating plaintiff inextricably in and were inter- Ultimately, only related. issue that have there could any departure case was whether from the standard of by jury delaying care found of choice medicine and day hospitalization until the second the administration of chloramphenicol right-sided hemiparesis was a cause and extraordinary It seizures. was to rule that the issue choice of tried, medicine should be but bar the from effec- trying tively the issues of standard care and causation. Bleakley (by McKeen, & P.C. H. Thomas Bleak- ley); Bendure), (by Thomas, & Bendure of counsel Mark R. plaintiff.

for the (by Schureman, Frakes, Glass & Wulfmeier Schwarze) Cheryl L. Chandler and Priscilla L. for pro- Transue, defendants Lee and Kim their corporation. fessional

Portnoy, Pidgeon (by Leader, Roth, & PC. Berlin), Robert Roth P. S. Marc for St. John Hospital. malpractice "[T]his J. ais medical

Brickley, relating action to the failure to administer chlo- ramphenicol Minor, to Plaintiff’s who was suffer- ing meningitis.”1 appeal from This concerns whether the trial court abused its discretion excluding theory, by plaintiff first raised Response Hospital’s Plaintiff’s to Defendant Motion for Protective Fees, Expert 10, April Order and Set To Witness 1985. Dacon v Transue Opinion of the Court trial, that defendants should also

the third dаy the initial administration delaying for be liable neither Because plaintiff to Ericca. antibiotics amending nor his justified pleaded it, the trial we decide to include pleadings affirm. its discretion and did not abuse court i born, 1974, months after she was nine April, In a of illnesses. from series Dacon suffered Ericca 11, April wors- they around Starting innocuously men- culminating in bacterial progressively, ened 11, fell out Ericca April end. On ingitis by month’s took her her Mrs. Dacon crib and hit head. of her Transue, Kim, pediatricians, Drs. family to the diag- Kim her and Dr. Mon examined and Lee. week, Later on contusion of head. nosed a to the Ericca back 15, brought Dacon April Mrs. fever developed she had a pediatricians because Ericca Dr. Thomas Lee treated visit. since last of the left an infection diagnosed day Ilosone, antibiotic, an prescribing ear. After inner home. condition then Dr. sent Ericca Lee 16, Ericca was April considerably. On deteriorated Green, who Dr. Hospital. Children’s admitted defect, a heart congenital for had treated Ericca and started pneumonia her condition as diagnosed Bicillin, When penicillin-family antibiotic. her on hospital days from the three was released Ericca ampicillin, her later, oral which prescribed doctors the next five When gave days. to her for mother 26, Dr. Lee saw April ran out on ampicillin K, a penicillin- Pen-Vee prescribed He Ericca. antibiotic, her home. and sent family 29, took later, Mrs. Dacon April days Three This time Dr. pediatricians. to the Ericca back Ericca, appeared who He examined her. Kim saw 441 Mich 315 op Opinion the Court however, leaving, normal. As Mrs. Dacon was she that Ericca cried her neck mentioned whenever forward. pushed Recognizing rigid- that such a ity symptom meningitis, can be Dr. Kim performed examination, a immediately physical for searching further He ordered symptoms. then blood complete Informing a count for Ericca. Mrs. Dacon that he Kim suspected meningitis, pre- Dr. scribed Pediamycin Dimetapp and and sent daughter mother and home to await further in- structions. back,

When the blood came count Dr. Kim told Mrs. Dacon that Ericca should be taken to St. John Hospital. She was admitted soon thereafter p.m. at 2:40 Savin, intern on duty, per- Dr. spinal tap, formed which revealed "grossly cloudy” spinal fluid. Dr. Savin sent the fluid on for laboratory analysis. returned, When that analysis Dr. diagnosed Savin Ericca’s condition partially as treated bacterial meningitis. given Ericca was am- p.m. picillin 29, at 6:00 April 1974.

Performing his regular rounds the next day, 30, Dr. April Lee visited Ericca. She improved had little. He then chloramphenicol, decided add antibiotic, another to the ampicillin Ericca had receiving. The first dose of chloramphenicol given the afternoon on April 30. From that forward, point illness Ericca’s slowly steadily but improved. Although better, got infection nurses noticed neurological ominous signs. Ericca seemed favor one of her side more body than the other. The physicians, realizing that neurologi- cal complications often result meningitis, from attempted to halt the deterioration. By time course, the illness had run its Ericca suffered from a generalized muscle weakness on the right side of her known body as right-sided hemiparesis periodic seizures. Dacon v Transue Opinion of the Court

II meningitis, Eight years bout with after Ericca’s friend, St. John Dacon, sued both next as Mr. family pediatricians. Hospital The com- and the alleged plaint malpractice committed had defendants both inju- damages sought for Ericca’s paragraph genesis appeal lies in of this ries. The 10(a)(7) specifying complaint. as Instead of of that pediatricians possible precisely what they plaintiff merely alleged wrong, failed that did "appropriate provide medica- and/or treatment to dosage appropriate In an and/or duration.” in tion attempt get ambiguity, de- this studied behind interrogatory requesting that an served fendants plaintiff "appropriate specify treatment” what provide they it.2 Plaintiff failed to meant and how response directly. only not to answer chose that could received was defendants any particular specify of the standard breaches this infor- that defendants could discover and care experts plaintiff’s At later.3 from mation point, the matter rested. allegations were more concrete Plaintiff’s other 10(a)(7). paragraph allegation He al- in

than his provide pediatricians leged did not that Ericca’s allegatiоns acceptable fo- office treatment. These practices taking a his- medical cused on such specifically 'appropriate interrogatory "Set forth what read: dosages and/or duration’ treatment and/or medication you plaint. paragraph your com 10-A 7 of have reference to as stated in practice requires this treat forth the standard of Set when specific.” or medication. Be ment response responded by referring to a to a defendants Plaintiff my attorneys question: informed "I have been similar expert Interrogatory subject is one that calls for matter of this point expert yet progressed testimony. Discovery where has not discovery Upon completion after be witnesses can identified. testifying, purposes expert plaintiff have selected for the witnesses interrogato timely supplement to these further answers will supplemented never this answer. ries.” Plaintiff Mich 315 Opinion op the Court tory, doing physical referring examination, a specialists. Although during Ericca to referred plaintiff’s testimony, theory of case did not hinge on them.4 theory

Plaintiff’s focused on the medication Er- pediatricians. icca evolved from three She her received from This allegations complaint. her alleged pediatricians her should have ampicillin-resistant meningitis po- included as a diagnosis problems, they tential of her should have determined whether she did suffer from am- picillin-resistant meningitis, they and that should presumptive diagnosis ampicillin- have made a meningitis. allegations, resistant the From these three parties "appropriate assumed treatment” drug ampicil- meant treatment with a other than understanding simply lin. Their mutual was stated by plaintiff response to defendant’s motion for a deposition: discovery-only "[T]his ais medical mal- practice relating action to the failure adminis- chloramphenicol Minor, ter suffering to Plaintiff’s who was meningitis.”5

from Plaintiff linked the provide failure to complications effective antibiotics to Ericca’s powerful, straightforward theory. physicians If the had administered effec- April tive recovered, 29, on medication Ericca would have thereby preventing hemiparesis her seizures. understanding, parties prepаred

With this all days for trial. started, Three however, before trial plaintiff’s startling discovery. counsel made a Reading closely, Ericca’s medication chart he no- 4 trial, At claim essential was that Dr. Kim should not have prescribed Pediamycin meningitis. testimony for agreed All medical to inappropriate. have done so have would been Dr. Kim con prescribe Pediamycin meningitis, but, tended that he did not for rather, respond dangers resulting to to the of infection from Ericca’s congenital heart defect. 5See n 1. 323 Transue Dacon v Opinion of the Court ampi- first time that Ericca received for the ticed discovery- April 29. This on cillin at 6:00 p.m. along surprised had assumed all him because he ampicillin at 1:00 first received that she had p.m. kept April this informa- 29.6Plaintiff’s counsel on implications himself. tion and its Momentary began difficulty smoothly. trial a ver- moved for directed when defendants arose dict after opening plaintiff’s it statement because liability. specify of not a concrete did plaintiff’s agreed, judge allowed counsel but opening day give of trial. on the second another judge not to direct a He so convinced did against no mention of his client. There was verdict plaintiff’s in had found the information counsel chart. Ericca’s medication plaintiff day trial, started of the On third response presentation his In a of case. plaintiff’s question posed by hypothetical counsel, plaintiff’s expert witness, Thoman, Dr. Mark testi- begin hour within an fied that treatment should objected,7 argu- immediately diagnosis. Defendants making ing medication, not that choice always diagnosis, in the case. had issue 6 course, assumption open doubt because this was to serious Of p.m. April Hospital 29. John at 2:40 on was admitted St. Ericca Plaintiff’s thought explained time that he later counsel plaintiff’s p.m., time 1500. Whichever incorrect 3:00 which would be ampicillin believed, was first he did know that it is clear counsel given p.m. April 6:00 29. at out, points to when antibiotics Dr. Thoman referred As the dissent this, objected. From the dissent once before defendants should start infers negligence. fully on notice of this claimed that defendants were differently. When Dr. of the record indicates A careful examination begin, it first mentioned when antibiotics should Thoman practice. Nothing response good general medical to a statement applica question indicates that this described or the context Monson, 135, care, see, generally, Lince v 363 Mich ble standard (1961), pediatricians 139-140; had or that defendant NW2d suggest did of care. When violated standard somehow that Dr. Kim violated the standard regard, defense of care in answer. moved to strike the counsel Mich Opinion op the Court judge plaintiff’s then asked counsel to show pediatricians’ timely where the failure to treat alleged. Although Ericca had been he had not delay known about the short in treatment until days plaintiff’s repre- trial, three sented to the court alleged before counsel had, fact, it because in treatment awas failure to provide appropriate ascertaining treatment. After responded pediatri- had not to the request clarify meaning "appropri- cians’ judge treatment,” ate ruled that vague provide treatment was too reasonable notice to defendants and struck the witness’ an- swer. vigorously opposed

Plaintiff’s counsel this deci- major argument complaint sion. His had, was that properly fact, notified defendants of the days he discovered three before. Counsel argument. Although offering added another never prejudiced, to show that defendants would not be permission complaint he asked allege quest to amend his theory. judge the new denied this re- again as well. The issue arose a number of during plaintiff’s attempted times trial as counsel ways get liability theory to find new the new judge argument into evidence. The trial listened to on the issue several more times and each time plaintiff’s attempts. blocked ruling during Even after the court’s Dr. Tho- testimony, plaintiff attempted man’s to examine regarding Dr. Kim the standard of care with re- spect timing therapy. to the After much discus- again sion, questions the court ruled such inadmis- sought sible. Plaintiff clarification of the court’s exclusionary ruling beginning testimony at day. the next only The court made it clear that regarding standard of care evidence the hour at begun which antibiotics should have was inadmis- Transue Dacon v op Opinion the Court present indicated, could, the court sible. Plaintiff linking injuries to un- evidence causation parties meningitis.8 then for the Counsel treated prevent any cautionary instruction drafted plaintiff’s may from that have arisen confusion inappropriate attempts repeated stan- to introduce any simply say more it I don’t know how The Court: given not the issue. that was is time of medication the [than] The kind of given the issue. medication that was you [your] Bleakley, giving that will refer can I assurance Mr. have by day rather hour? the of medication [than] my Bleakley: Mr. You have assurance. proximate clear, arguing planning on just on And so I’m I’m day administering delay the that a of one cause basis appropriate damage. this child’s brain antibiotics caused problem you any that? with The Do have Court: Mr. Roth: No. you Bleakley: think have instructed the Mr. That’s all—I cautionary requested jury the that’s reason I’ve now and instruction. jury you that from the removed issue I think that have instructions, you your see. them, in this time is not issue lawsuit. You said to an have appro- to the —not the And an issue in this lawsuit as time is 6:00, Ampicillin priateness an issue as to appropriate at but it’s of the administration administering delay in whether or not the reasonably medically probably caused antibiotic condition. child’s say problem you None of have the with—when Court: us delay day. there was a one instructions, . will make . . clear And when we have the we the reason. problem when child was I have no because your position you brought day, I first it’s and believe in on the Ampicillin given Ampi- clearly, have claimed Chlor-Amphenicol given, the should not have been cillin should given. have been Bleakley: That’s Mr. correct. given proper until next And the one was not The Court: day. problem I take it there will I have with that. Court: no poses way? objections it in then he be no if Mich Opinion of the Court Upon agreement dard of care evidence. from all parties fairly the instruction reflected plaintiff’s theory pleaded,9 the court cautioned jury timing in these words: "The as to when therapy the initial antibiotic was administered at Hospital April St. [sic] 29, John’s 1974 is not an may issue in Plaintiff’s claim that consider, the case. You however, the antibiotic therapy (In- April was not 29, started on 1974.” court.) plaintiff pre- structions of this, After sented the rest of his case and rested before the again became an issue. spite

In court, his assurances to the delay thеory during raised the once more his cross- Dajani, examination of Dr. Adnan defendants’ ex- pert Dajani witness. He asked Dr. whether he agree general proposition "would as a that time is treating of the essence in individuals with bacte- meningitis?” suggested rial Plaintiff that the rea- challenge son for this statement was to the credi- bility Dajani’s testimony of Dr. that the defen- plaintiff’s Ericca, dants had treated words, in "exemplary fashion.” The court ruled that the statement under the involved the standard of that, care and previous rulings, plaintiff could not ask question.10 that delay This was the last time the issue arose._ 9 pediatricians Counsel for objected the defendant because she

believed the court’s jury instructions allowed the to consider an unpleaded variation on agreed, the timeliness theme. All counsel however, accurately the portrayed plaintiff’s instruction theory respect timing. of the case with to 10 highlight sharp ifAs the contrast between causation evidence evidence, plaintiff and standard just of care had elicited causation testimony Dajani questions from Dr. four earlier. Plaintiff asked: respect concept With Q. of treatment [the] of bacterial meningitis, recognized principal is it not a well the [sic] longer goes one greater without treatment the the sequela? likelihood of generally A. I think principal that’s adhered to which I [sic]

think is correct. 327 Dacon v Transue op Opinion the Court jury testimony, Upon the conclusion ought to which medication to consider instructed pediatricians given and found that have malpractice. however, decided, It committed had proximate malpractice had not been jury injuries. also decided of Ericca’s cause malprac Hospital no had committed that St. John tice. Appeals, appealed Court

Plaintiff then plaintiff’s raising The exclusion of issues. three unpublished them. In an was one of Appeals opinion per curiam, affirmed the Court of alleging ruling it believed trial because court’s put "appropriate defendants treatment” did granted delay theory. We of the reasonable notice question appeal to the whether limited leave plaintiff’s delay theory properly excluded. (1991). Mich 1047

hi presents The first is This thrеe issues.12 case plain- the trial court’s determination whether failing comply MCR 2.111 tiff failed to This claim the court excluded. claim that appropriate greater in that these permanently disabled.’ sided consider whether amend more erred when it excluded” the requires ^[12] administering As In her testimony hemi-paresis broadly. the consideration problems concurrence, likelihood it is pleadings. treatment when pleaded, no amendment would have been court summarized It limits offers chloramphenicol well-recognized that and seizures are trial ” of the review permanent complications. Justice causation evidence court grant suffering delay theory. pleading now "to plaintiff’s theory, properly Boyle order, however, phrases until in nature and present from It suggests that we issue whether the issue because had April denied is contended that longer in Ericca. bacterial In our 30th caused the plaintiff’s have " one 'It view, necessary. and the meningitis, the It goes rendered is contended should trial court attempt this order Plaintiff’s the the issue without dissent right- delay only her Mich 315 Opinion of the Court provide delay theory reasonable notice of the pleadings general, correct. It was. The make con- clusory allegations, provide which do not reason- pleadings able notice to the defendants. Such to meet the standard fail imposed by MCR 2.111 and Cassidy, 635; Simonelli v Mich 59 NW2d 28 (1953).

The second issue is whether the trial court’s plaintiff denying permission decision to add the theory Michigan pleadings new was correct. It was. clearly Court Rules indicate that pleadings during amendments of offered trial rejected plaintiff affirmatively should be unless preju- establishes that defendants would not be 2.118(C)(2). diced. MCR Plaintiff neither made nor showing. asked to make this applied The last issue is whether the trial court correctly. firmly its decision correctly It did. The court opportunity denied to offer respecting unpleaded standard of care evidence liability theory, plain- but also made it clear that present detailing leaving tiff could evidence how essentially roughly Ericca unmedicated for a full day hospitalized plain- after she was without what appropriate drug may tiffs contended have simply harmed her.13 Plaintiff has failed to show an abuse of discretion.

A concerning meaning scope Decisions pleadings fall within the sound discretion of the Consequently, only trial court. we reverse when the court has abused that discretion. Simonelli v Cassidy, supra quoting 641, at Grant v Nat’l Man Plating Co, ufacturer & 453; 258 Mich 243 NW 21 (1932). Establishing such an abuse is difficult. As part See d. 329 Dacon v Transue Opinion of Court will stated, abuse of discretion an Court has palpably and is "so the decision found when be logic grossly it evidences of fact and violative perversity will, not thereof, not of of will but exercise not the judgment-but defiance of the exercise passion or reason but rather the exercise Spalding, 382, Spalding 384-385; 355 Mich v bias.” (1959). mind, this standard With 810 94 NW2d in this at issue the decisions turn to review we appeal.

B provide complaint notice to reasonable must A 2.111(B)(1); parties. Simonelli, opposing su MCR 111 pra; 111 Hall, 434; NW2d 364 Mich Jean v (1961); 322; 103 NW2d Cleveland, 360 Mich Scott v (1960). designed to avoid two This rule is 631 opposite, equivalent, lies At one extreme evils.

but straightjacket action. forms of of ancient plain summarily suits when dismiss Courts would abstract into these fit the facts could not tiffs packages. conceptual extreme lies At the other Leaving pleading. ambiguous a uninformative grounds guess upon what defendant justified recovery notions basic is violates believes justice. play for Extreme and substantial of fair equiva ambiguity interfere extreme malism and lently judicial system ability of the dispute leads The former merits.14 on the resolve a to potentially claims while meritorious dismissal of opportunity a defendant’s undermines the latter supra. Scott, Neither present Jean and defense. a acceptable. allegation plaintiff’s defen- that the case, In this "appropriate provide pediatricians did not dant appropriate dos- medication and/or treatment Clements v Constantine, 344 Mich 446; 73 NW2d 889 (1955). Mich Opinion Court age any introduce issue and/or duration” does not liability, MCR into the case. ‍‌​‌​‌​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‍To assert 2.111(B)(1) specifies allegation must an repetition, facts, . . . the without "state[ ] specific pleader relies,” "the alle- which gations necessary reasonably party” and state the to inform adverse allegation pleader’s claims.15 This First, fails on both counts. it does not refer either specifically generally any facts. The first plaintiff’s complaint paragraphs of set out several underlying in detail the facts of the lawsuit. This allegation, gives others, hint unlike the no of the allega- this, it facts tion ond, which refers. Without proper under the court rule.16 Sec- cannot be generality allegation defini- of the defies nothing specific tion. It delineates about how the pediatricians By literally alleging every- erred. thing, allegation alleges nothing. Allegations this provide as this do not reasonable notice to such proper 2.111. defendants and are not under MCR response ruling, plaintiff In to the trial court’s argued, complaint alleges not that the' pleaded, theory, theory actually fail- but antibiotic, ure to select an effective included the delay in the initial administration antibiotics argument, theory. Plaintiff’s other raised before supra, Cassidy, Court, this is that Simonelli v requiring plaintiffs provide case reasonable defendants, notice to is obsolete and anachronistic ought argument not to be followed. Neither is persuasive. complaint allege

Plaintiff’s does that Ericca chloramphenicol should have received instead of 111.1(1) drafted, 1963, complaint At the time the GCR is, governed respects, equivalent sufficiency allegations. of the It in all material 2.111(B)(1). to MCR course, concise, drafting pleadings any organized Of those can use presentation they long require choose as as it meets the substantive ments of MCR 2.111. Dacon v Transue op Opinion the Court chlorampheni- provide ampicillin.17 The failure essentially plaintiff contended, Ericca left col, twenty-four roughly after hours for unmedicated entering Lacking hospital. medication effective suggested, plaintiff period, neu- led to the for theory damage rological This Ericca suffered. theory on the advanced new from the distinct suggested day trial. That third p.m. on 3:40 before initiate medication failure to April Ericca. differ- 1974, harm to 29, caused subtle, vast. but theories is these ence between ampicillin. The the choice to use criticizes The first anything be- to do the failure criticizes second April 29, 1974. 6:00 2:40 tween p.m. p.m. despite argument plaintiff’s that, for The basis standard of difference, of the the latter breach overlap temporal hinges pleaded on the carе was proximate of both theories. cause element in the sought theory, recover for In the first may she re- have suffered because Ericca harm twenty-four chloramphenicol nearly hours ceived hospital. entering second, the In the after unpleaded sought theory, plaintiff for to recover may she did have suffered because Ericca harm and one- for the first three medication not receive hospital. are distinct These hours in the half pleaded the failure to of harm. Plaintiff sources theory chloramphenicol recov- administer theory. plead delay ery The trial but did chloramphenicol complaint specify in the did not Plaintiff however, why did, specifically detail He the antibiotic to be used. parties wrong drug Because all knew ampicillin to select. was the effective, medica- chloramphenicol to select effective failure chloramphenicol course of over the select failure to tion became theory focusing be Ultimately, should discovery. on whether something chloramphenicol” or else beclouds "failure to select called provide failure to select point. of the did notice Plaintiff the essential provide through complaint, did not but medicine correct notice, delay delay theory. exclusion of Without such notice of proper. theory was Mich Opinion of the Court not abuse its discretion distin- court thus did excluding guishing theories and between these therapy plaintiff’s delay the- in the initiation ory. himself from the difficulties caused

To extricate plead to in the initial his failure suggests antibiotics, administration ought supra, Simonelli, to abandon Court malpractice requiring defen a case that medical provided of the dants be with reasonable notice against claims them. Simonelli,

In this Court affirmed a lower court’s complaint for failure to state a dismissal of a question we considered was whether claim. complaint provided before us sufficient facts support held that it a cause of action. This Court alleged negli- wrote, did not. As we gence "Plaintiff has failing diagnose malady an undefined failing proper precautions pre- and in to take operation, injury during the course of the but vent only specific statement. . . . we find one factual allegations We do not believe that such constitute a sufficient statement of facts to establish a cause Although supra Simonelli, at 643. de- of action.” malpractice in the context of a medical cided applied general princi- action, the Simonelli Court ples pleading. Illustrative is the Court’s reliance Michigan Co, such as Creen v Central R on cases (1911), 104; 168 Mich 133 NW 956 which indicated: " a declaration fails to advise the defendant 'When according certainty, reasonable to the circum- upon plain- case, stances of the tiff cannot be sustained.’ of the facts which proposes prove rely, it, it and will seek to ” supra Simonelli, at 644. hinged importance Because Simonelli on the proce- fair notice to the defendant and not some Dacon v Transue op Opinion the Court quirk practice,18 dural of 1950’s civil its lesson is neither obsolete nor anachronistic and is one we will continue follow. 10(a)(7)

Paragraph plaintiff’s complaint alleges pediatricians family provide failed to "appropriate ap- treatment and/or in medication propriate dosage plain- and/or duration.” Because complaint support tiff’s reveals no factual for this 2.111(B)(1) allegation, required by both MCR plaintiff Simonelli, and plead we decide that did not delay in the initial administration of theory. decision, however, antibiotics This does appeal. arguing resolve this In addition to vocifer- ously pleaded had, fact, that he in theory, plaintiff medication asked the alterna- complaint tive to amend his to include it. The trial request, court denied this and we now discuss this decision.

c governs pleadings. MCR 2.118 the amendment of 2.118(C)(2) Specifically, MCR re- establishes strict quirements amending pleading during for trial. party requesting Unless the amendment "satisfies court . . . . . amendment . would not prejudice objecting party,” amendment "shall sharply not be allowed.” This rule contrasts the free amendment trial. Ben P allowed before Fyke Co, 649; & Sons v Gunter 390 Mich (1973). NW2d 134 Because neither made showing it, nor asked to make we find that plaintiff permission correctly the trial court denied to amend._ procedural formality during This Court’s attitude toward that era Clements, supra n 14 at 452 is best illustratеd our statement procedure merely whereby "all a methodical means the court wrongs; rights remedy it must never reaches out to restore important purpose accomplish.” more than the it seeks to

become Mich 315 Opinion the Court ways. challenges this conclusion two

Plaintiff argues could not be First, that defendants he meaning prejudiced rule of the court the within allegation. they Second, of the had notice because "special points rec- to a to several references he suggests by that we counsel and made trial ord” construe request the a to make one of these as 2.118(C)(2) showing requires. MCE argument, plaintiff’s regard the first With plaintiff correctly had not ruled that trial court provided to the defendants and reasonable notice prejudicial surprise. would cause that amendment This Court long of amend- has condemned use surprising defendants. at trial as a means of ments given supra. Scott, If have been reason- defendants plaintiff source, notice, that able from whatever prejudicial trial, the claim at no intended to assert surprise 2.118(C)(2) meaning of MCE within provide did not can occur.19Because the case,20 would reasonable notice this amendment case, would cause In this defendants contended amendment First, prejudice ways. they in a number of defendants indicated them would have had to investigate Hospital’s practice St. John twelve Second, they depose years before the trial. would have had to several testimony relevant to the choice of medica witnesses whose was not theory. Finally, suggested they would have had tion to track down records services. were unfounded. defendants that ranging from medication charts to bills for showing prejudice Plaintiff made no these claims of 20 dissent, had notice of In Justice Levin asserts that defendants However, reviewing discovery delay theory through discovery. the materials included founded. Justice Levin sition theory. refers to which medicine should have been chosen. Neither indicates that this claim is un the record indicates depo quotes portions of Dr. several Thoman’s testimony had notice of to indicate that defendants however, appendix examples, See dissent Each of these a. plaintiff might raising delay theory. be a suggests plaintiff put Additionally, the dissent defendants delay theory they notice of the definite statement and were able to file an answer to a different theory. provide defendants’ reasonable and cannot be made the basis for because did not move for a more suggestion complaint the fact that did

This notice of the incorrect overlooks theory. light, medication Seen in preparation only theory pleaded wholly to defend the inferring notice of an Dacon v Transue Opinion of the Court surprise. Simply prejudicial clearly have caused facially plaintiff may rely put, insufficient on a allegation, amendment, which necessitated surprise prejudicial the amend- caused alleviate ment. claiming had notice defendants than

Other plaintiff points theory, to trial counsel’s of his new making special refer, record. None references however, making showing required by MCR 2.118(C)(2). request right after the came The first ruling had not initial that defendants trial court’s delay theory. given notice of reasonable simply make a record asked to Plaintiff’s counsel showing plaintiff’s expert information witness respect forming opinions upon to his with relied request given This had Ericca Dacon. the care nothing showing that the amendment to do with prejudice defendants. would not special request only make a record other to The plaintiff’s during of defen- cross-examination came Dajani. expert Dr. Da- witness, Dr. Adnan dant’s opinion pediatri- expressed jani an had appropriately. Plaintiff had treated Ericca cians focusing impeach opinion by sought on the this delay initiating therapy. The trial antibiotic inadmis- this line of cross-examination court ruled special plaintiff sought this, to make a After sible. record, apparently to show that antibiotics should Again, begun an hour of admission. have within Furthermore, unpleaded theory. motions for a more definite state- pleadings procedural clarifying would not and other devices for ment have produced delay theory. Plaintiff’s counsel discov- notice of the days delay three before trial the factual basis for ered theory prevents party began. Lacking from basis for the a a factual Thus, any pleading asserting signing it 2.114. if at time a under MCR days prior moved for a more definite to three before trial defendants statement, responded plaintiff the incorrect medica- would have theory. for a more definite choice not to move tion statement does the Defendants’ they possessed support notice of an inference that theory. in medication Mich op Opinion the Court attempt nothing any to do with this had request remotely not even his arid was complaint amend showing prejudice absence connected with 2.118(C)(2). Without such a show- MCR required by granted. "shall not” be ing, request to amend imposed by failed to meet the burden plaintiff 2.118(C)(2). permis- The trial court’s denial of MCR amend was therefore correct. sion to

D the trial court remaining issue is whether above, its decision As discussed applied correctly. effective the failure to initiate plaintiff argued increased therapy promptly antibiotic complications. appeal, for On permanent chances trial court excluded suggests review relating theory. evidence Our vital the trial court handled of the record reveals precisely evenhandedly. matter this difficult standard of care Carefully distinguishing between the hour at which ántibiotic concerning evidence link- begin and causation evidence therapy should permanent complications the chances of ing medication, the court excluded lack of effective the standard of such evidence that described only care as it related to what hour treatment should concerning relationship the have started. Evidence meningitis and Ericca’s com- of untreated bacterial admissible and was received plications fully find no error. objection. without We as error the trial court’s exclu- assigns Plaintiff however, Plaintiff, evidence. sion of causation did introduce tending evidence to show could and medicate with an effec- alleged how the failure to 29, 1974, April the first led day, tive antibiotic fact, In medical wit- complications. every Ericca’s theory. The support plaintiff’s ness testified in v Transue Dacon Opinion of the Court harm Ericca suffered relating to the first evidence Thoman, expert. plaintiff’s Dr. Mark from came phy- the defendant the failure of He testified сause of was a process the disease to arrest sicians opin- expressing After complications. Ericca’s Er- caused practice medical unacceptable ion that testified: Dr. Thoman injuries, icca’s had period, is that she time Taking the whole antibiotics, erythromycin treated with been Ilosone, injec- penicillin and then was the which Ampicillin; these were orally, penicillin tion and Ilosone, within except for family in the same all she continued family antibiotics and the same getting well she was not symptoms, so to have family. given in that drugs that were under that, given in and was she went And with different opinion, if it was a drug. my And in same said, appropriate, have been I that would family as used, have been it should drug had been if that or have drugs that would other supplemented with more effective. have Ericca would simply, was theory, stop- and that antibiotics different with improved her prevented have would disease earlier ping Dr. Thoman agreed Dr. Kim complications. complications this indicated He regard. meningitis. from resulted Kim, on Dr. based opinion, have an Q. you Do as to whether probability, medical reasonable hemiparesis right sided and the seizures complication of a result of caused as were meningitis April, 1974? bacterial the men- complications from I think she has A. paralysis. got seizure and ingitis moved on testimony, eliciting After Dr. Thoman examination. topic of to another 315 Mich Opinion op the Court Kim supporting first provided testimony Dr. theory: causation plaintiff’s element complications. caused her meningitis untreated Dr. expert, Dr. defendant’s Adnan Da- Lee and Both regarding testified the second element. jani, longer patient goes said that a without doctors treatment, greater appropriate antibiotic complications such as Ericca’s likelihood Lee, cross-examining plain- occur. Dr. would While tiff first established the standard of care required questions antibiotics. Two appropriate link that of the standard designed to breach care to the harm Ericca suffered followed:

Q. you opinion, Do have an based on reasonable probability, medical the Dacon at the tion, tis as whether the seizures right hemiperises suffered Erica [sic] [sic] hospitalization ques- time of the meningi- occurred as a communication of the experienced by the child? A. Yes. Q. agree you upon Would that based reasonable probability, longer goes

medical without inaccurate antibiotic tibiotic a child medical treatment such as therapy inappropriate an- therapy, greater that the the likelihood of sequella meningitis? to a condition of [sic]

A. Yes. Bleakley: completes Mr. That’s the cross- [sic] examination, Your Honor. Plaintiff elicited similar from Dr. Da- testimony jani. Q. respect concept With of treatment of [the] meningitis, well-recognized

bacterial is it not a principle longer goes appro- one without priate greater treatment the likelihood of se- quela? A. I generally princi- think that is a adhered to ple which I think is correct. Dacon v Tránsete op Opinion the Court Dajani, according Thus, Dr. Dr. treat- Lee and April wrong ing Ericca the medication with injury. chances for increased her Together, Lee’s, Thoman’s, Dr. Da- Dr. Dr. and case on presented powerful jani’s testimony cau- According jury. Thoman, Dr. de- to the sation alleged the standard of care breach of fendant’s process and, ac- to continue the disease allowed cording longer Dajani, and Dr. to Dr. Lee likely meningitis, the more Ericca from suffered permanent injury. was to she suffer Although plaintiff not bar trial court did showing introducing how the evidence from medicating may effectively caused Ericca have tending harm, the court did exclude evidence trial required of care to establish that standard begin of within an hour treatment antibiotic diagnosis. evidence, course, inad- Irrelevant does not make missible. MRE 402. When evidence a fact "of consequence to the determination of probable,” it is not relevant. or less action more MRE plaintiff plead 401. did not Because respect to the with standard of care breached begun, have facts hour at which treatment should required tending to that the of care show standard By treatment a certain hour were irrelevant. at reasoning, relating exclusion of evidence which standard of care and hour at medication would should have been administered have proper.

Upon reviewing statements, it is the excluded with relate the standard care clear all the begin. respect to hour that treatment should example, examining plaintiff Kim, Dr. For while please, you directly, indicate, "Can what asked respect for to mode and calls standard care added.) timing therapy?” (Emphasis Plaintiff again you agree thereafter, "Would tried soon Mich Opinion of the Court practicing the standard of care for a licensed and physician specializing pediatrics . . . that promptly appro- administer[ ] standard of care is to added.) priate (Emphasis antibiotic treatment?”21 questions Because the answer to these would not any make fact relevant to the action more or less probable, upon objection, correctly the trial court excluded them. repeated rulings

The result of the trial court’s plaintiff’s unpleaded was an exclusion of standard theory, plaintiff’s of care but admission of causa- testimony perceive tion full its force. We no abuse of discretion in either. We conclude the trial properly applied court its decision that plead delay in did not the administration of antibiotics a violation of the standard of care.

IV appeal presented This three issues. The first was plaintiff pleaded whether in the initial theory. administration of antibiotics Because the complaint provides any specific no factual basis theory, statement of this we hold that he did not. plaintiff The second issue is whether should have complaint been allowed to amend his to include 21 dissent, provides example In Justice Levin another which he contends establishes that He is of the essence in meningitis?’ Post, the trial court excluded causation evidence. quotes plaintiff’s question asking from to Dr. Kim "whether 'time treating suffering a child from bacterial ” however, p complete quotation, 360. The makes it question proper clear that related to the standard of care for any theory. treatment and not to causation treatment, Kim, respect With Dr. time is of essence Q. treating suffering meningitis? a child from bacterial Is that not true? question regarding Because this ately standard of care was asked immedi- inadmissible, questions after the court had ruled such the court intervened beforе Dr. Kim answered. Dacon v Transue Opinion Boyle, J. day delay theory trial. Because the third pleadings governing amendment rule the court without a such amendments authorize does not showing not have been would that defendants permission prejudiced, to amend was denial challenges plaintiff Lastly, the trial court’s correct. proximate Because the cause evidence. exclusion of evidence, we find causation not exclude did court Appeals judgment of the Court of error. no affirmed. therefore Riley JJ.,

Cavanagh, C.J., Griffin, J. Brickley, concurred majority’s Although I in the concur J. Boyle, permit refusal the trial court’s conclusion that pleading not an to amend his separately discretion, I write because abuse opinion majority’s can be read that the the extent Cassidy, 635; 59 336 Mich Simonelli v to reaffirm (1953), disagree. I NW2d

i presented is whether in this case issue The sole it excluded erred when the "trial court plaintiff’s theory were liable the defendants delaying of antibiot- initial administration for (Order appeal.) granting Mich leave to ics.” (1991). question requires to that The answer 1047 2.118(C)(2), interpretation the rule of MCR an governing during pleading trial.1 amendments 2.118(C)(2)provides: MCR ground it is not objected the that to at trial on If evidence is pleadings, con- by amendment the issues raised within the seeking party proof unless the not be allowed shall form to that the amendment and court the the to amend satisfies objecting prejudice the would not of the evidence admission party merits. maintaining on the her action or defense his or in Mich Opinion Boyle, J. answering question Court, before the In question opine on the is no need to there supra, question Cassidy, v because Simonelli complaint for should be dismissed not whether lack of specificity; question is the trial whether refusing an amendment court erred to allow during trial. majority correctly rules that it was not an the trial to conclude

abuse of discretion for court 1) plaintiff’s complaint theory that the set forth upon parties proceeded trial was which the diagnose ampicillin defendants failed to 2) meningitis, theory resistant dif during being fered from that said, raised trial. That unnecessary Simonelli, it is to reaffirm a case prior adoption decided to the of the General Court req pleading 1963, which Rules liberalized uirements.2 case,

In this the Court is not confined to an analysis complaint of the and the amendment analyzing it is the trial court’s exercise of because trial initial com- discretion after commenced. The plaint regarding delay in failed to set forth facts diagnosis. Despite requests treatment specific after for supporting allegations facts of a failure to provide appropriate interrogatories, treatment provide sharpened failed to answers that sufficiently provide adequate in at the issues notice presented advance of trial that a be trial was a in the administration of medica- grant may adjournment objecting The court an to enable the party to meet the evidence. 1963, 111, 2 Honigman prede and Hawkins observe that GCR 2.111, similar, substantially cessor of MCR which is liberalized the requirement pleaded pleading facts be "to the extent that no reasonably party shall be deemed insufficient if it informs the adverse upon Honigman nature of cause he is called to defend.” & (2d Hawkins, ed), Michigan Court Rules Annotated Committee Notes 111, p to Rule 191. Dacon v Transue Opinion by Dissenting meningitis. upon diagnosis Moreover, tion plaintiff’s opening summary state- mediation focus on failure at trial continued to ment meningitis. ampicillin-resistant It for treat that the trial court considered context within whether right grant plaintiff his amend complaint day third of trial. on the malprac- complexity sure, of medical

To be litigation way may fair more in the demand tice slip The answer to than a fall. notice adequate given question notice has been whether depends plaintiff’s theory obvious, it is To state the on when asked.

might adequate when have been adequate notice of filed, it was not it was theory but practice, discov- at trial. Motion advanced management ery, mediation, and the considerable authority that, in all but trial court insure of the litigation parties instances, to civil the rarest they tried issues are to be and how know what the will trial try one—the In that rare case—this them. prevent authority to belated court broad has blindsiding by party. has not demon- either It necessity new is a to breathe that there strated importantly, my view, into Most life Simonelli. add ammunition to the war it is unwise to discоvery process too can all attrition that easily become. (dissenting). majority J. The concludes

Levin, properly judge to allow the circuit refused expert testimony Ericca to introduce Dacon E. Lee violated the Drs. Mon K. Kim and Thomas standard appropriate they of care when failed direct her administered to medication be following to St. her admission within one hour diagnosis suspected Hospital bacterial John meningitis. plaintiff majority ”[b]ecause so concludes plead the standard of care did respect to the hour at which breached with 441 Mich 315 Dissenting Opinion Levin, J. . -”1 begun (Emphasis have . . treatment should added.) ignores that while Ericca did not majority Hospital

so Drs. Kim and Lee and St. John plead, 1985, learned, deposition in May, when the witness, Thoman, Dr. expert Mark taken, trial, over a before the that Ericca year expert testimony would offer that the standard required care medication —"mul- antibiotics;” tiple chloramphenicol or other medi- ampicillin cation in addition to the that was ad- ministered —be administered within one hour after Ericca was admitted to the Dr. hospital. Thoman deposition: testified on why say multiple

That’s I antibiotics are started initially. Ideally, within the ñrst hour after patient hospital. At presents time done, spinal stain, tap history, physical gram and ordered, ‍‌​‌​‌​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‍lab tests are and antibiotics are [Emphasis started within that ñrst hour. added.] 1 majority states: plead Because did not that the standard of care was respect

breached with to the hour at which treatment should begun, tending have required reasoning, facts to show that the standard of care By treatment at a certain hour were irrelevant. relating exclusion of evidence the standard of [to] care and the hour at which medication should have been proper. [Ante, p administered would have been 339.] only The court made it clear that standard of care evidence regarding begun the hour at which antibiotics should have [Id., pp inadmissible. 324-325.] this, plaintiff sought record, special appar- After to make a ently begun to show that antibiotics should have within an [Id., p hour of admission. 335.] only court excluded such evidence that described [T]he standard of care as it related to what hour treatment should [Id., p Emphasis originаl.] 336. in have started. v Transue Dacon Dissenting Opinion deposition that also testified Dr. Thoman ampi chloramphenicol medications, not and other "[o]n alone, have administered should cillin hospital.2 Thoman added: Dr. admission” you get meningitis you "Usually cloudy have a when diagnosis possi you fluid, fastest make the stops pull start out all You ble. antibiotics added.) (Emphasis together . . . .” introducing expert precluding from In Ericca treating testimony "time is of the essence” meningitis, suffering from bacterial a child majority ignores mediation statement that Ericca’s initiating "time is of the essence stated therapy appropriate meningitis.”3 the treatment antibiotic Chloramphenicol Ericca, in was administered twenty-four ampicillin, hours after she addition was admitted left her with life, John, but to St. and saved her hemiparesis right-sided sequelae, chloramphenicol was eventu seizures.4 Since and prog ally and to Ericca arrested administered disease, of adminis the "timeliness” ress of the tration necessarily chloramphenicol an is of was necessarily sue, on notice were and defendants was an issue. that timeliness

i judge medicine—chlo- ruled that choice of The 2 Doctor, you you what would I want to tell me antibiotics Q. point in time. on Erica Dacon at have ordered [sic] meaning Bleakley lawyer]: point in At this time Mr. [Ericca’s Hospital]? April Ericca admitted to St. John 29th date was [the 29th, [hospital’s lawyer]: April 1974. Roth Mr. Bleakley: Mr. On admission? Right. Mr. Roth: 3 12, 1985, year summary over one before dated March Mediation August, in 1986. the trial 4 administering deposition chloram Dr. Thoman testified on twenty-four phenicol "too late.” hours after admission was Mich by Dissenting Opinion ramphenicol timing, ampicillin or not was an —but stating: may issue in the case "You about talk proper you medication, medication, correct but may get into timeliness.” judge apparently impression

The under the medicine,” of "choice but not timeliness of only medicine,5 administration of correct pleaded. proceeds majority issue The on the same premise stating: erroneous in "Plaintiff’s com- plaint allege does that Ericca should have received chloramphenicol ampicillin.”6 instead In actual- ity, complaint specific allegation made no con- cerning сhloramphenicol, administration or concerning timing delay. complaint specificity why

The stated some ampicillin medication, was incorrect but did not spell out what would have constituted correct therapy. generally, agree, pedia- It stated I that a presented patient exhibiting trician with a signs, symptoms, history and demonstrated duty appropriate Ericca "had a to administer treatment and/or medication in added.) dosage (Emphasis and/or duration.” complaint particular- not, indeed, thus did except general timing delay ize, terms, particularize, was an But issue. neither did it except general terms, choice medicine may was an issue. Whatever have been the defi- pleading, properly ciencies in one cannot differen- regard pleading tiate in that of medicine as an issue and the between the of choice

pleading timing administering medicine an issue. pleading as to one issue suffers from the same deficiency pleading the of the other._ 5Chloramphenicol, the that medication Ericca claimed should have hospital, twenty-four on administered her to the admission not hours later. 6Ante, pp 330-331. v Dacon Transue by Dissenting Opinion chloramphenicol appear in the word

Nor does summary, 21, March dated mediation Ericca’s generally again "Eric[c]a that 1985, stated which appropriate provided ther- antibiotic not was drug Ampicillin; prescribed apy. Instead, she or should have doctors knew the Defendant treating Eric[c]a’s in known, would be ineffective meningitis.” spe- actually more statement

The mediation timing regarding in of medicine than choice cific longer a child with menin- it that "the stated therapy, gitis goes antibiotic without sys- potential greater for central nervous complications,” in and "time is of the essence tem therapy initiating appropriate in the antibiotic added.) (Emphasis meningitis.” of treatment spe- have notice of the The defendants did not therapy Dr. until criticism of of Ericca’s cifics deposition the defendants’ was taken Thoman’s lawyers. They the claimed learned about then timing in and in in both choice of medicine errors importance of of, and the avoid- the administration ing delay in, medication. to the defendants notice

Since source concerning specifics of claim choice testimony depo- Thoman’s was Dr. of medicine deposition, very and, he testi- sition, same timing concerning importance fied administering avoiding delay correct medication —chloramphenicol, ampicillin is, I alone—it one conclude believe, unfathomable how could that choice medi- were on notice the defendants ampicillin chloramphenicol, alone—was cine— timing issue, but were not on notice an administering medi- correct avoidance of issue. The conclusion cation7 was an 7 Chloramphenicol, claimed. Ericca 348 Mich 315 Dissenting by Opinion timing defendants were not on notice that and delay administering avoidance of correct medi- especially cation was an issue is difficult to under- chlorampheni- stand under the circumstance that eventually col was administered. good judgment persuades The same

majority "appropriate to read treatment and/or appropriate dosage medication and/or duration” (the language complaint) including of the "fail- ure added), (emphasis to select an effective antibiotic”8 enlighten

should it to read those words as including "failure to select an effective antibiotic timely Surely, "timely administered.” administra- timely tion” would include "initial” administration timely "subsequent” as well as administration.

ii Cassidy, Simonelli v 635; Mich 59 NW2d 28 (1953), distinguishable because in that case the physician defendant was not on notice before the trial of the omissions claimed to constitute mal- practice. Simonelli discovery was decided before depositions opponent’s expert of an witness were generally parties taken, available and and before exchanged mediation statements.

A physicians hospital The defendant served on interrogatories asking Ericca that she set forth specifically by "appropriate what was meant treat- majority states: response In ruling, plaintiff to the trial argued, court’s not complaint alleges that the actually pleaded, delay theory, but that antibiotic, failure to select an effective in- cluded the in the initial administration of antibiotics

theory. [Ante, p Emphasis 330. added.] Dacon v Transue Levin, J. Dissenting Opinion dosages and/or medication ment responded in- Ericca duration.” and/or quiry discovery testimony, expert for called expert point progressed where had expert identified, that after be could witnesses purposes of testi- for "selected had been witnesses timely supplement an- fying,” "further she would Interrogatories.” to these swers hospital Although to re- moved the defendant interrogatories respond quire to to certain Ericca directing so, the to do her an order obtained and defendants did compel supple- her to to not seek promised, and she as had the answers she ment do so. did not incomplete. majority’s While recitation is

The ambiguity majority the stresses supplement pleading, her an- failure to and her interrogatories, consider, it not does to the swers part crucible, one that Dr. Thoman’s of the seventy-page deposition was taken hundred year May trial, 21, 1985, a before the or over directing Er- to seek an order defendants’ failure interrogato- supplement her to the answers icca to directing file more definite state- her to a ries or ment. appear why not the defendants did It does keep compel promise her Ericca

move to interrogatories. supplement her to the answers recog- explanation likely defendants by requiring gained a to be nized that little was interrogatories under fuller answer lengthy had taken a that defendants circumstance They may deposition have well of Dr. Thoman. depo- seventy-page one hundred concluded that the sition made superfluous filing supplemental a an- interrogatories, judge and that to the swer they made such concluded had also have so would motion. a Mich Dissenting Opinion by Levin, J.

B majority’s generalizations regarding provide adequate need to defendants with notice of specifics they of Ericca’s claim so that would opportunity present have a full and fair a obviously indisputable. defense on the merits are provide fact-specific The court rules do indeed for pleading. they provide But also that a defendant may move for a more definite statement before filing responsive pleading if the defendant claims pleading vague ambiguous that the is so or that it comply requirements fails to with the of the rules.9 treating physicians hospital Both the and the complaint. filed answers to the Neither asserted complaint that the failed to contain a statement of specific allegations the facts with necessary reasonably to inform them of the nature of the they claims were called on Neither, to defend. claiming complaint vague ambigu- that the comply ous or require- otherwise failed to with the rules, ments of the moved for a more definite following filing statement either before or their answers. might

Just it be unfair to a defendant to introduce a new issue at trial, so, too, the it is plaintiff ignore unfair to a to the actual notice of plaintiff’s claims that the defendant has received discovery depositions, in interrogato- answers to 9 provide The court complaint rules that a must contain a "state pleader ment of the facts” on which the stating relies in a cause of specific allegations action "with the necessary reasonably to inform party the adverse of the nature of party the claims the adverse is 2.111(B)(1). called on to defend . . . MCR provide The court rules pleading also vague that if a is "so ambiguous rules, comply it requirements fails to with the of these opposing party may an move for a more definite statement filing responsive pleading.” before statement a If the motion for a more definite granted obeyed, is may is not the court strike the 2.115(A). pleading. MCR v Transue Dacon by Opinion Levin, J. Dissenting statements, or other documents ries, mediation the trial. filed before excerpts only from examine the to

One needs testimony deposition forth Dr. Thoman set the of greater regarding appendix a, detail to see in specifics forth claim are there set of Ericca’s pleading possibly a set forth in be than could providing of the court rule run afoul would not pleading allegation clear, of must be "[e]ach a concise, and direct.”10 present plaintiff opportunity deny to an a

To recovery support of a in evidence fairly fully and have been the defendants which discovery depositions, mediation state- notified interrogatories, docu- or other ments, to answers simply because the trial ments filed bеfore specific plead facts later failed pre- pretrial discovery developed other in the majority, processes, is, in the words of the trial formalism” tantamount "[e]xtreme reintroduce straightjacket forms of action.”11 of ancient "the

c expert particularly many cases, a case where In specific required, testimony fully facts will be long developed12 through discovery only after complaint filed and answered. has been require, opinion appears majority If, as the process discovery developed specific in the facts complaint fully to avoid stated must be peril theory support of evidence of exclusion adequately appearing recovery in the added.) 2.111(A)(1). (Emphasis MCR 11Ante, p 329. case, case, ambiguity,” referred to "studied In such a 321) (id., p may at the time the com majority be unavoidable the plaint may filed, of limitations be as in a case where statute is or must delay. it is filed without further action unless bar the Mich by Dissenting Opinion process discovery deposition response inor interrogatories, necessary plain- it will for become discovery completed, tiffs, after has to seek to complaints specific amend their to set forth developed discovery process. in facts paperwork might tidy While this additional things up somewhat, it means additional work for lawyers representing plaintiffs defendants, and charged and more be billable hours to to clients. In hard-fought employment discharge/ areas of malpractice, product discrimination, medical and approach liability, majority’s encourages resis- plaintiff, tance to a motion to amend. And the preparing complaint, the motion amend his had letter-perfect something lest, better be if is omit- ted, defendant claim omission constitutes developed fully an abandonment of a claim in the discovery process. regime describing, that I am and which the

majority opinion for, to call seems is alien to the practice. process, rely discovery Bench and bar on the statements,

mediation and status confer- ences to narrow the issues flush out whatever ambiguities might complaint there be in the answer.

D Wayne This case was filed before the Circuit adоpted system. Court This individual docket originally assigned case was to the docket of a judge judge circuit other than the who tried the years spun case. later, Four it was off to be tried judge August, another circuit 1986. The trial judge, pretrial thus, was not familiar with history knowledge case, of the and the of what the judge pretrial case is about that a who decides picks up deciding motions such motions. 353 Dacon v Transue Dissenting Opinion lawyers, case, it not the defendants’ In this was judge, appendix b, raised who rather the see but question delay in treatment had been whether opening pleaded. statements It clear from eagerly lawyers although that, the defendants’ opportunity exploited Ericca’s undermine timing presented judge raised when case independently question, them occur to it did might ambiguity in there have been whatever that the ment regarding complaint in treat- the deficiencies justified exclu- of Ericca and medication deposi- developed discovery in the of evidence sion tions. Wayne had if Circuit Court

I am confident that adopted system this docket before an individual judge filed, the trial not have been would case was in doubt that part timing as much a were of Ericca’s claim choice of medication.

E needlessly majority Simonelli. reconsiders take some time The mischief to will ensue will forty years undo. Simonelli was decided almost doing quite ago. Practitioners have been well opinion from the interim another without expounding They will, I ex- Court pect, on Simonelli.13 judges the assistance of trial who have patience empty exercises, find for no time practical injustice obviating, many cases, means opinion today’s other will cause in adept judge man- is less at case cases where agement entirely adversary counsel are their approach._ 13 Appeals opinions. O’Toole v For have Court of See There (1980), Stone, tino, Bryson 797; App v 33 Mich 97 295 NW2d 867 Mich DePree, 337; (1971), 512; App

App 3 142 336 Haase v Mich 190 NW2d Freeman, 788; (1966), App v 117 Mich 324 NW2d 504 486 Hill NW2d (1982), Hosp, App 221; Community v 148 Mich and Martinez Redford (1986). 384 NW2d Mich Dissenting Opinion by Levin, J.

P lawyer sure, To be move, did after the judge’s rulings trial, adverse at the to amend her complaint judge complaint after the ruled that her deficient, Simonelli, under because there was allegation delayed "no as to а treatment.” It does any not follow that there move, need to dur- ing trial, amend, and thus it does not follow any there is need for this Court to consider either Simonelli or whether the motion to amend granted. should have been agree, case, In this a issue, central we all judge barring whether the erred in the introduc- tion of evidence that medication should have been administered to Ericca within Hospital. one hour of her admission to St. John fully Because informed, adequately the defendants were Ericca’s mediation statement and Dr. seventy-page deposition, Thoman’s one hundred that her was that Drs. Kim and Lee vio- failing lated the standard of care in to administer chloramphenicol correct in addition medication — ampicillin to admission one hour of her —within Hospital St. John because time is of the essence in treating meningitis, a child with bacterial her seek, failure to before trial, to amend her complaint justify excluding to so state does not expert testimony supportive theory. of her my opinion, thus,

There is no need to recon- concerning Simonelli, sider pleading, specificity in fact during or whether the motion the trial complaint granted. to amend the should have been

hi majority opinion, As set forth in the Ericca was examined in morning Dr. Kim’s office on the v Transue Dacon Opinion by Dissenting hospital. day

April 29, to the she admitted meningitis symptoms of Kim did not observe Dr. home with a until, send Ericca as he about prescription,14 relatively "ordinary” Eric- antibiotic cried whenever mother mentioned that she ca’s pushed alerted, So Dr. Kim forward. her neck was rigidity symptom recognized that such was a complete meningitis a blood count for and ordered "stat.,” he Ericca, which meant wanted Mrs. Dacon testified that within the hour. results meningitis. suspected that he Dr. Kim said hour, back count came blood Within highly cell count. Dr. white blood with a elevated telephoned Ericca to St. Mrs. Dacon take Kim Hospital possible. admit- as She was soon John preliminary diagnosis menin- of bacterial a ted on twenty gitis after Dr. Kim minutes at 2:40 p.m., telephoned resident An intern a Mrs. Dacon. tap spinal performed 3:00 which before p.m., immediately examination, revealed, on visual "grossly cloudy” spinal fluid. confirming meningitis, was tantamount

This count, bacte- оf the white blood cell and, because meningitis. to the labora- The fluid was sent rial analysis tory not come would for further which twenty-four hours. for at least back Lee, the nor Transue or Dr. Kim Drs. Neither clinic, on the in the visited Ericca other doctors ampicil- hospital. Orders administer 29th at the given telephone by before sometime lin were p.m. 6:00 why Ericca at trial he did visit asked ‍‌​‌​‌​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‍When day hospital admitted, Dr. she on the at the group in his medical doctors Kim said that making weekly changed responsibility rounds for group hospitals covered, and at the three 14Pediamycin.

356 Mich 315 by Dissenting Opinion during April that, 29, 1974, it week of had been one of the other doctor’s turn. by

When Ericca was visited Dr. Lee the follow- ing day condition, and he observed her he ordered spinal tap chloramphenicol another and that be ampicillin day added to the started the before—the multiple therapy expert that Ericca’s witness claimed was the standard of care. Ericca was chloramphenicol medicated with between 2:30 and April twenty-four 3:00 on hours after she p.m. 30— meningitis was admitted —and until thereafter repressed.

iv majority lawyer states that Ericca’s ad- theory day vanced a new on the third of trial. The theory suggested says "new” time, the first —for majority the failure to initiate medica- —that (one April tion before 3:40 29, hour p.m. Hospital) after Ericca’s admission to St. John caused harm to Ericca. The majority states that "unpleaded” theory, new, this "criticizes the fail- anything ure to do between 2:40 and 6:00 p.m. p.m. ”15 April 29, on ing 1974. The asserted in advanc- theory lawyer’s is attributed to Ericca’s misreading stating Ericca’s medication chart as (3:00 p.m.) actually when it stated 1800 p.m.). (6:00 majority sought states that Ericca to re- cover under her first the ma- —deemed jority "pleaded”16 to have been harm suffered —for chloramphenicol because she did not receive until nearly twenty-four entering hospi- hours after "unpleaded” tal, theory, second, under her for harm suffered because she did not receive medica-

15Ante, p 331. accompanying Footnote 3 and text. v Transue Dacon Opinion by Dissenting Levin, J. hours in the three and one-half tion the first for hospital.17 theory majority’s first recitation of Ericca’s

The part was that —be- of her first omits that medicating for the essence cause time meningitis chloramphenicol should bactеrial — hour of her one administered within have been hospital, suffered and that she to the admission administer chloram- of the failure to harm because ensuing twenty-three during phenicol each delay, first two and hours which included following first after she hour hours one-half hospital. to the was admitted importance Eric- no whether It of little or was lawyer chart, or medication ca’s misread Ericca’s startling discovery”18 he when observed "made a begin at 3:00 did not but that medication p.m., day p.m., at 6:00 she was rather commenced admitted hospital. theory, to the Ericca’s first com- pletely stated, that correct medication should was one hour of her have administered within hospital, she ad- admission to the whenever was mitted. only theory every one

Ericca’s and administering medication, hour correct chloramphenicol, antibiotics rather than other ampicillin beyond alone, one hour after admission hospital, departure from standard of care.

A theory, majority Ericca’s "new” describes 17Ante, pp 331-332.

18Id., p 322. kept majority adds: "Plaintiff’s counsel information Id., p implications its to himself.” 323. "startling importance discovery,” I am Since I little or no see "implications” lawyer perceive surprised that did not not requiring sort of disclosure. some Mich Dissenting Opinion days” seeking trial, "discovered three before the to recover for harm caused "to Ericca” as a result of "failure initiate medication before 3:40 p.m. April majority 29, on 1974 . . . .”19 The states theory, this, the "new” seeks to recover for twenty hours, the three minutes "failure to do anything between 2:40 6:00 and p.m.....” p..m. theory This "new” has been as the described "delay administering ampicillin” theory. in It is recognized now there could not have been theory, seek, such a that Ericca did not nor could sought, she have to recover for harm caused as a delay administering result of in an ineffective drug, ampicillin, unless there an effective drug, chloramphenicol, that could and should have theory Thus, been administered.20 the "new” criti- anything” cizes, not the "failure to do between 2:40 and 6:00 but rather the failure to p.m. p.m., chloramphenicol administer 29th 6:00 before on the p.m. during ensuing twenty forty hours, only theory.” minutes —Ericca’s "one and There was no "new” theory._

19Ante, p 331. 20Having postulated lawyer sеeking at the trial that Ericca’s delay administering ampicillin, physicians’ recover for in lawyer correctly states on brief in this Court that such a would seek wrong drug to recover on the basis "that was not started at the 'right’ time.” lawyer administering ampicil- success, Ericca’s in fact advanced no theory. lawyer attempted, lin without to make clear attempting delay medicating that Ericca was not to recover for her ampicillin: inappropriate There’s never been an issue that antibiot- [ampicillin] given.

ics should have been judge responded lawyer The that Ericca’s could not introduce regarding evidence the timeliness of administration of medication— any discussion of timeliness was forbidden. Timing word, that, and timeliness became a "t” once the defen- lawyers perceived judge’s rulings, dant’s the direction of the touched objections rulings Ericca, excluding off and adverse to evidence re- garding chloramphenicol. timeliness the administration of Dacon v Transue Opinion by Dissenting sought "plaintiff majority states may have suffered be- Ericca for harm recover for the first receive medication she did not cause hospital.”21 As set hours in the and one-half three agree earlier, that the defendants were all forth they had failed that Ericca claimed notice provide Implicit in such an "effective antibiotic.”22 effective antibiotic is the claim that an a claim initially timely administered, should have been rulings striking judge’s subsequently. concerning urgency barring testimony timely ther- of effective antibiotic administration concerning apy "only” evidence excluded avoiding delay administering urgency antibi- during therapy the first three and one-half otic hospital, in the but also excluded hours Ericca was avoiding delay concerning urgency evidence during administering therapy ñrst antibiotic hospital. twenty-four she was in the hours B judge evi- not confine the exclusion of The did delay”23— bearing on the "short dence to evidence 3:40 2:40 ampicillin (one at after Ericca was admitted hour p.m. 6:00 when medication and p.m.) p.m., actually all She struck commenced. including testimony, trial Dr. Thoman’s objection following testimony admitted without judge question raised the before sometime pleaded: "timeliness” whether very cloudy, If the fluid is then that’s a spinal meningitis in fact a high this is indication begin actually from the time treatment must and 21Ante, p 331.

22 accompanying n 4 text. See and 23Ante, p 324. Mich Dissenting Opinion

you meningitis. spinal tap, think of The i.v. antibiotics, everything begin actually must within transpires. an hour after all So once the considered, diagnosis initial tests and the are in order treat medications started that. And generally, and for the last well over two decades intern, since I was an it’s an been within hour begin. after that’s considered the treatment has to [Emphasis added.] judge testimony,

After the struck Dr. Thoman’s lawyer attempted Kim, Dr. Ericca’s to ask one of treating physicians, the defendant "what the stan- respect dard of care calls for with timing mode therapy,” and whether "time is of the treating suffering essence a child from bacterial added.) meningitis?” (Emphasis judge The sus- objections stating tained that she had "ruled time- you may case, liness is not an issue but ask proper about the mode of treatment once the condition is that would be expected.” lawyer Ericca’s later asked Dr. Kim whether promptly "the standard of administer[] care is to appropriate judge antibiotic treatment.” testimony stating: "Promptness, barred the you express timeliness, it, however want to I have ruled is not an issue in . . . .” the case lawyer, later, still Dr. directed Kim’s complaint. attention to the When asked the rele- points: vance, he stated: "Two meningitis treatment of bacterial to a medical professional who should not be in- misunderstood things: ,” volves two the "t” word. Timeliness — judge jury The excused the and said: Bleakley, going Mr. I’m to make this statement hope you and I understand it. I have made a ruling, repeated ruling. I have I have listened your to ways trying get of to ruling. around that I Dacon v Tránsete Opinion Dissenting now, one you you to if mention timeliness indicate time, contempt I of you more will hold court. [Emphasis added.] sought lawyer, nevertheless, to be cre-

Ericca’s finding way present to evidence ative in another timely importance administration of of drug therapy when, in the of cross-examin- course expert ing Dajani, Dr. witness for the Adnan defendants, mony testi- he called his attention his Kim and Lee had treated Ericca

that Drs. "exemplary fashion,” whether the wit- and asked agree general proposition that as a ness "would treating with the essence in individuals time got meningitis.” responded "Yes,” He but bacterial hospital lawyer for the ob- no further when jected. lawyer "why judge did

The then asked question?” responded you He he was ask that seeking credibility. challenge The the witness’ testimony judge "What difference does his said: being any case, case, time of the other do in this case?” essence, have to issues questions permit judge added that she would ampicillin concerning the administration of chloramphenicol it, as to "but not the timeliness you might credibility, or else not as to whatever disregard jury ques- it.” call was told tion. rulings, judge’s exclud-

It is thus clear that ing one hour” both "time essence” "within concerning testimony, ur- excluded evidence gency timely administration of effective antibi- during therapy, only the "short” two-three otic delay encompassed by twenty hour, minute theory,” assertedly but excluded evi- "new also concerning urgency timely adminis- dence therapy during the effective tration of antibiotic 315 Mich by Levin, J. Dissenting Opinion ensuing twenty forty minutes hours and between drug, ampicil- the ineffective the administration of lin, drug, chloramphenicol. the effective judge’s ruling not limited The effect of the was ruling, twenty minutes. Her to two hours and excluding testimony concerning urgency therapy, correct immediate administration of not limited to the "short delay,” two hours and p.m. p.m. twenty minutes, between 3:40 and 6:00 on longer April applied delay 29, as well to the but p.m. approximately twenty-four hours, from 2:40 April 29, admitted, Ericca was to 2:30- on when p.m. April therapy 30 when the cor- 3:00 adding chloramphenicol by rected to the medica- judge tion. The said: talking it Let me make clear. Whether we’re five minutes, hour, hours, 24 hours one seven or two time,

years, when we talk about as far as I’m concerned, talking we’re timeliness. about longer any There is no issue and there never was timeliness this case. medication, may You talk about the correct medication, get

proper liness. you may but into time- Understood?

C majority notes that Dr. Lee and the defen- expert Dajani, witness, Dr. dants’ testified that longer goes patient appropriate "the without greater treatment, antibiotic the likelihood complications such as Ericca’s would occur.”24 supportive testimony This was indeed of Ericca’s administering claim that an- sequela therapy tibiotic fered, caused thе suf- she right-sided hemiparesis and seizures. 24Ante, p 338. Transue Dacon v Dissenting Opinion testimony not, how- does of such

The admission striking testimony of ever, all the render harmless concerning expert Thoman, witness, Dr. urgency of cor- administration immediate medication, further testi- the exclusion of or rect importance regarding mony Dr. from Thoman therapy, timely of correct administration expert barring of defendants’ cross-examination essence, the or other time was of whether witness Dajani, Kim, Lee of Drs. cross-examination concerning timely urgency of the of administration medication. correct responses Dajani, apparent

It from the of Drs. is concerning delay questions Kim, and Lee to administering antibiotics, had the correct that permitted lawyer judge to cross-examine specifically whether should them more antibiotics not, one hour —if within be commenced within many time is of hours doctor?—and whether how the lawyer Dajani acknowledged essence, the as Dr. before may hospital objected, the Ericca for that very from the well have obtained concessions expert treating physicians that and their witness imperative. timely that treatment is Statements patient goes appropriate longer a without the greater treatment, likelihood the the antibiotic that complications convey occur, do the will not urgency. same sense timely expert testimony, that

Without medical imperative therapy correct administration (that essence), that, Dr. Thoman time is (made deposition, tap spinal a on when testified immediately to the hos- after Ericca was admitted "you pull cloudy pital) out all fluid shows together,” [multiple] stops and start the antibiotics jury admission, did the hour of within longer despite the concession have — patient goes treat- without antibiotic Mich Opinion Dissenting complications— greater ment, the likelihood had to assess it should have all the evidence twenty-four-hour in administer- whether the chloramphenicol, may ing medication, the correct right-sided responsible for the hemi- have been paresis and seizures.

D majority opinion, jury set forth in the As improperly medicated, with found that Ericca was ampicillin, by Lee, Drs. Kim and but administering chloramphenicol delay in —which progress her arrested the of the disease and saved hospitaliza- twenty-four hours after her life—until proximate right-sided tion not the cause of the hemiparesis and seizures. majority attempts to draw a distinction on standard of care and evidence

between evidence stating judge causation, that the "made it clear regarding only standard of care evidence begun hour at which antibiotics should have pre- inadmissible,” but indicated that Ericca could linking injuries sent "causation evidence meningitis.”25 to untreated portions the tran- I have read substantial scripts. judge lawyers the nor the for the Neither drew a distinction between evidence on defendants standard of care and evidence

concerning causa- although, judge tion, ruled and after the had proofs completed plaintiff’s largely had been recognition minimal there was some that causa- an issue. It is unclear on basis the tion was what perceives judge majority "indicated,” the present ruled, could causa- when she Ericca tion evidence. events, stricken,

In all that was evidence 25Ante, p 325. v Dacon Transue Dissenting Opinion

"regarding the hour at which antibiotics should begun,” probative only have of the stan- dard of care but also on the issue of causation. In excluding striking evidence, in such Dr. Thoman’s testimony concerning trial the hour when the begun, administration of antibiotics should have barring and expert cross-examination of defendants’ treating physi-

witness and of defendant concerning cians the hour when the administra- begun, judge tion of antibiotics should have effectively introducing proba- barred Ericca from concerning causation, tive evidence the issue of may persuaded jury evidence that have twenty-four administering hour chlo- ramphenicol right-sided hemiparesis caused the and seizures.

v majority day states that on the fifth of trial judge jury instructed the as follows: " timing 'The as to when the initial antibiotic therapy Hospi was administered at St. John’s [sic] 29, April on tal You is not an issue in the case. consider, however, may the Plaintiff’s claim appropriate therapy antibiotic was not ”[26] 29, April [Emphasis started on 1974.’ added.] majority’s ignores The that reliance this instruction judge during Dr. course of Thoman’s testimony, jury had instructed the that "timeliness going of the administration of is not medication case,” be an issue in this and that the instruction day ("[y]ou may on the fifth of the trial consider” "claim that Ericca’s therapy antibiotic 29”) April was not started on did not ^[26] Id., p 326. Mich Dissenting Opinion "timeliness of instruction that the earlier

retract not an of the medication” the administration majority’s this instruction reliance on issue. concerning testimony expert ignores that also urgency appropriate timely administration therapy stricken and barred. had been antibiotic lawyer agreeing instruction, Ericca’s to this In judge correctly thereby agree that the had did not expert testimony only of Ericca’s stricken correctly witness, had further examina- barred expert witness and cross-examina- tion of Ericca’s treating physicians concern- the defendant tion of agreeing urgency timely ing In treatment. seemingly endless an instruction —after to such argumentation concerning the "short” two-three administering twenty hour, in minute lawyer ampicillin medicine, ineffective —Ericca’s agree judge properly excluded did not urgency avoiding concerning the fur- evidence ensuing delay, during twenty forty hours, ther drug, administering minutes, an effective chlo- ramphenicol. jury apparently events,

In all doubt judge jury shortly after the had instructed the jury it retired to consider its verdict. The before inquiring timing an sent notes whether issue. thereby jury indicated it did not under- concerning timing in admin- stand the instructions istering medication. responding jury,

In to the notes from the judge said: convey timing trying you

I have been only distinguish you is an issue this case when April April 29th 30th. Plaintiff between ‍‌​‌​‌​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‍claims antibiotic was antibiotic, singular plural administered — —was April not administered on 29th. Dacon v Transue 367 Dissenting Opinion by Levin, J. saying you may I’m consider that it was not 30th, April you agree until if that that started was the appropriate April it to start 30th. That’s only way you may that consider time in this case, you distinguish is when between what was opposed 29th done on the as to what was done on the 30th or later. And it relates to the administra- tion of the antibiotic, timing not to the diagnosis any [Emphasis other situation. added.]

In stating only way "the that you may case, distinguish consider time in this is when you what was 29th opposed between done on the to later,” what was done on the 30th or the judge appears was from saying colloquy with counsel —as responded before she to the nоtes: jury’s Jury I have to make it clear to the have tried —I administering to do so—that the issue of time for the appropriate* treatment has to be limited to April opposed April 30th as 29th. judge saying timing thus was —and in administering effective

delay medication —could until day be considered the after Ericca was hospital. admitted to the This was more than one hour, minutes, more than two-three hours twenty (between than nine twenty more hours minutes p.m. April 2:40 midnight). judge and What meant, understood, and the jury may have timing could not be considered until Dr. Lee on the 30th and appeared actually ordered that chloramphenicol be added to the ther- antibiotic in addition to apy, ampicillin. and 29th

Clearly, timing delay on the was an respecting issue at least whether there was a relationship causal between from p.m. p.m. 6:00 on the 29th until 2:30-3:00 on the Mich by Dissenting Opinion Levin, J. right- chloramphenicol adding and 30th hemiparesis Ericca. suffered seizures and sided compre- inability jury’s understandable saying, judge the thin distinc- hend what tion between medication, timing of and medicine choice of judge’s coupled decision adduced, con- that had been evidence strike avoiding timing importance cerning and respecting tim- delay, evidence further bar may administering medication, ing delay in treating physi- finding jury’s explain medicine, but in the choice of cians erred right-sided hemi- of the not the cause was error paresis and seizures.

VI ampicillin Indisputably, ineffective, and was ampi- Clearly, chloramphenicol life. saved chlorampheni- wrong and medicine was the cillin col the regard right to whether without medicine departure in of care the standard from was a there administering initially am- medicine —in choice of picillin ramphenicol delaying of chlo- the administration in and day.27 the next until administering chlorampheni- delay in Unless right-sided causally hemi- to the related col was importance paresis no seizures, it was of and ampicillin medicating rather Ericca with whether chloramphenicol of the stan- was a breach than medicating necessarily Timing was in of care. dard an issue. question of medicine and of choice

The medicating delay timing question Ericca in and departure from questions whether there was factual were drug, medicating the ineffective in Ericca with of care the standard chloramphenicol, drug, and ampicillin, the effective rather than causally administering chloramphenicol was in whether hemiparesis right-sided seizures. and to the related Dacon v Transue Opinion Dissenting Timing inextricably were, thus, interrelated. again, necessarily medicating, an issue. once Entirely apart the defendants from whether timing delay in and medicat- on notice that were ing the record shows Ericca was an issue—and they notice, other- and did not claim were question judge whether until the raised wise they implicit, judge appar- as the were on notice — recognized, majority ultimately ently recognizes, also is the of choice of medicine the issue timely ad- effective medicine issue whether ministered. recognize majority appears is- it states that evidence are interrelated when

sues concerning suffering happens person to a what wrong meningitis receives the medica- from who component” proximate of the "is the cause tion "wrong theory. choice of medication” point exhaustingly trying no at There was (ten great, great length days) and at some- trial every possible aspect tedious, of the detail times trying by also issue of choice of medicine without — concerning— allowing introduce evidence Ericca to timing delay. the issue Ultimately, only issue that there could have jury on which the in this case—the issue respecting against Ericca, the issue which found and barred —was whether evidence was stricken departure by any of care found from the standard delaying jury medicine, until in of in the choice hospitalization day of the administra- the second chloramphenicol, the medication that saved tion of right-sided life, the hemi- was a cause of paresis and seizures. judge, extraordinary rule, did the

It was of medicine should be that tried, the issue of choice put refusing by in Ericca to to allow but — timing delay respecting bar her evidence —to Mich Dissenting Opinion effectively trying the issues of standard from assuredly did The defendants care and causation. jury, by verdict, causation, the its concede and not found against very that issue. Ericca on judge, direction, in reversal a belated jury immediately it retired to before instructed the plaintiff’s of liabil- its verdict that consider ity delay in ad- that the included the contention day ministering chloramphenicol until the second right-sided hospitalization hemi- caused the of paresis judge had issue and seizures28—the treating expert and found, physicians witnesses when physi- chair, were in the witness hospital By then, have notice of. and did not cians however, rulings during repeated judge had, in timing respecting and trial, evidence excluded administering delay and, thus, evi- in antibiotics tending support Ericca’s claim that dence delay chloramphenicol administering caused the right-sided hemiparesis and seizures.

VII entitled, a Ericca is At the new trial which expert permitted her witness is trial at which timing importance testify respecting and the administering chloramphenicol, avoiding delay permitted lawyer to cross- at her is which expert treating physicians their examine the judge jury: instructed the well-recognized it It is Plaintiff’s claim suffering longer goes when one without treatment compli- meningitis, greater the likelihood from bacterial administering chlo- cations. It is contended right-sided ramphenicol April hemi- until 30th caused the present paresis It and seizures now in Ericca. is contended problems permanent her these are in nature and have rendered permanently disabled. Dacon v Transue by Dissenting Opinion Levin, J. timing and and at which regarding delay, witness medicating is instructed jury was the on chloramphenicol theory Ericca with to recover —as this was sought jury which she instructed, after evidence ultimately belatedly supporting delay-in-administering-cMoram- was stricken and excluded —the phenicol malprac- conclude that there was might again jury chloramphenicol failing to administer tice ampicillin, and also medication lieu other was the malpractice proximate that such conclude and seizures. right-sided hemiparesis of the cause for a new trial. I reverse and remand would J., concurred with J. Levin, Mallett, A

APPENDIX Dr. excerpts from Thoman’s following are deposition testimony. yourself by the treatment of choice

Q. What was time? at that call generally was what we

A. The treatment or even three multiple therapy where we use two dosages. The three antibi- in substantial antibiotics antibiotics, antiseptic one which or the two otics ’70s early in the to mid sulfa. Gantrisin is ampicillin, and Chloromycetin, one sulfa the time. that was used at being antiseptic? Q. Sulfa A. correct. That’s ’74, April testimony that as of

Q. your Is it the treatment of could have been Chloromycetin choice in and of itself? A. alone. Not or Savin this order that Doctor Gavin Q. You stated [the signed resident], whoever

intern or 441 Mich 315 Dissenting Opinion inap- that was April ampicillin, 29th of time, that correct? at that is propriate treatment A. That’s correct. a have ordered in of that he should Q. And lieu

Cephalosporin Chloromycetin? or ordered, it taken has to be A. If that had been fact, had, in ways. ampicillin If different started had in Mich- assuming they never one ampicillin, then igan that ever was resistant at the same had to be started other antibiotics ampicillin, would have in- which time with the sulfa, for exam- Chloromycetin and cluded ple. appropriate it to admin- Q. you’re saying was So long as it was ampicillin in this case as ister administered as antibiotic, along such with another Cephalosporin Chloromycetin? or ampicillin clarify this. If had A. No. Let me said, started, main my and as I criticism been that two weeks given for ampicillin penicillins had been getting sicker, you and the child was thing make the the same that didn’t don’t use child well. higher dosages, if to use this in So one were dose, much more than which is a massive textbook then it would also be present, recommends at time and imperative that other anti- antiseptics technically be used biotics be used higher dosages, conjunction ampicillin stop I’ll there. Chloromycetin and sulfa. such as you Mr. read that answer back. Roth: Could read.) (The requested portion of the record was Doctor, you I to tell me what antibiotics Q. want ordered on Dacon at this you would have Eric[c]a point in time. meaning Bleakley: point Mr. At time April 29th? 29th, [hospital’s April 1974. lawyer]:

Mr. Roth Bleakley lawyer]: On admission? Mr. [Ericca’s Right. Mr. Roth: Chloromycetin intrave- A. I would have used preparation, such as

nously type and some of sulfa Gantrisin. 373 Transue Dacon v Dissenting Opinion Levin, J. dosages?

Q. In what range from 100 to Chloromycetin would A. The milligram per hundred milligram per kg. One 200 milligram kilograms 7.4 so kilogram. She was dose. an have been would . . . Q. Per kilograms so if period. She’s 7.4 A. In a 24-hour milligrams go would use were to

you per —some loading in the dose kilogram day the first ’70s, one would have been which in grams case early Chloromycetin. a hаlf average we of what if to take So one were grama ago, use about years do 11 we would would along day particularly the first Chloromycetin with sulfa.

Q. How much sulfa? milligrams per kg could A. the Gantrisin Of milli- essentially 750 and that would be be used grams. period?

Q. In a 24-hour correct, A. That’s iv. therapy initially at antibiotic

Q. What other stage appropriate? this would have been penicil- in penicillin used A. One could have penicillin, since she had aqueous lin but G or use some might it elect been on before one antibiotic, Cephalosporin. type such as other those? Q. What are marketed. A. I whether Kefzol was don’t know Keflex, Kefzol. We’re say Cephalosporins

Let’s talking about, kilogram. It milligrams per say, 100 might type dosage that one would have been the give talking the first 24 hours. So we’re within milligrams. kilogram So 750 a 7.4 child. about again? Q. dayA

A. That’s correct. the Keflex true with

Q. That would have been and Kefzol? group. There as a Cephalosporins

A. The taken came I when one brand several. don’t know were Cephalospo- generation third in the out. We’re rins now. [of] 441 Mich 315 Dissenting Opinion appropriate either to Q. it have been So would Cephalosporins you one of the have administered have indicated? option, yes. one A. That would have been Cephalospo- Q. Anything what? with With rins? Chloromycetin use the with A. Yes. You could problem . . . Cephalosporins. The

Q. dosage? What given you

A. I had that. Q. dosage you as told me before? The same correct, milligrams per kg. A. 100 to 200 That’s Q. the other mode would have And the sulfa? just Chloromycetin ampicillin at 200 A. And one could elect to use particu- milligrams per kg penicillin, but alone appro- it before wasn’t larly since hadn’t worked priate opinion. my utilized, case, Q. ampicillin If your opinion it would have had have been accompanied by what else? Chloramphenicol. A. Sulfa and Q. Chloromycetin? and the Sulfa correct, triple therapy. A. That’s Chloram- phenicol interchangeable Chloromycetin are terms. it, timing giving it Q. Other than the give

appropriate to it. thought appropriate. A. I it was Q. Together ampicillin, problem? no with the problems already A. Save for the I have dis- cussed. Well, length

Q. problem you discussed at ampicillin earlier was in and of itself.

A. That’s correct.

Q. Together Chloramphenicol, with the is there any problem? ampicillin qualification A. The with the of the discussed, ampi-

dosage we have if sodium given, given cillin had beеn it shouldn’t have been given Chloromy- alone. It should have been 375 v Transue Dacon by Dissenting Opinion giving problem here is it more than My cetin. admitting. hours after B APPENDIX stating majority Dr. in that when The errs begin that "treatment diagnosis,” should Thoman testified within an hour of diately objected, imme- "[defendants arguing medication, that choice of delay making diagnosis, always in a had in the case.”29 the issue

A lawyers object Dr. did not when Defendants’ begin treatment should Thoman testified diagnosis” hour an "initial "within an after” meningitis They objected when, "is considered.” thirty forty said, later, minutes Dr. Thoman rapidly possible.” "diagnosis must be made as making diagno- objection delay in a meningitis "delay issue, not that sis of was not an diagnosis” making in was not an issue. judge lawyers It was the defendants’ —not —who alleged question Ericca had

raised the whether delay in treatment. objection trying lawyers’ issue of judge

delay diagnosis in was transformed objection trying the issue of into an through transformed, treatment. This was further trying objection mischaracterization, into an administering ampicillin.30 delay "new” issue of

B expert witness, Thoman, Dr. was asked point should trial at what time treatment at the spinal cloudy you begin "the fluid is but when added). Ante, p (emphasis 323 and n 7 accompanying text. See n 20 and Mich 315 by Dissenting Opinion other tests back?”31 He have all of these don’t objection: without responded cloudy, very then that’s a spinal If the fluid is meningitis high and is in fact a indication that this begin from the time actually treatment must meningitis. spinal tap, and you think of The i.v. antibiotics, begin actually everything must within transpires. all this So once the an hour after considered, initial medications are started and the diagnosis is the tests in treat that. And order to generally, and for the last well over two decades intern, an hour since I was an after that’s considered it’s been within begin. the treatment has to [Emphasis added.]

Dr. Thoman’s continued for another testimony when, responding minutes in to the thirty forty opinion he was of the that question why Kim, Dr. he by standard of care was breached said "diagnosis rapidly possi- that must be made as as "[d]eiay physicians’ lawyer objected ble.” The in had not making diagnosis meningitis a been . . . .” an issue this case The whether he had judge lawyer asked the stan- ever claimed that the doctors violated making diagnosis. dard of care a He by delay Dr. responded that he "did not understand Tho- oрinion diagnosis man’s to state delayed, delayed.” but treatment was He added that Dr. Thoman’s was "that testimony majority inquiry general "a statement characterizes good practice” "good medical and asserts that medical care” is not care,” argues: description "applicable a plaintiff regard, of the standard of "When suggest did that Dr. Kim violated the standard of care this n 7. Ante, 323, p defense counsel moved to strike the answer.” distinguish majority I what do understand on basis the seeks "good practice” Any of care.” motion between medical and "standard response inquiry, to strike was not addressed to Dr. Thoman’s to this and, events, judge, "allegation lawyer, in all was made after the not the raised delayed question there was an as to a whether treatment.” v Transue Dacon Levin, J. Dissenting Opinion diagnosis delay in a treatment once that there was had obtained.” lawyer physicians’ judge to the then turned claiming you is no asked, there "Are delayed

allegation She re- treatment?” as to respect, ‍‌​‌​‌​‌‌​​‌‌​​‌​‌​​‌​​‌​‌‌‌​​​‌‌‌‌‌‌​​‌​​‌​​​‌‌‌‍yes.” sponded: "Yes, in this with inquiry on, became that moment From delay treatment, in medica- timeliness whether diagnosis, delay issue, an tion, not presenting prevented lawyer from concerning importance, ur- indeed evidence medicating chloramphenicol. gency, Ericca jury judge "timeli- instructed the that then is not of medication of the administration ness going case,” Dr. and struck to be an issue in testimony concerning timeliness med- Thoman’s chloramphenicol. icating Ericca with testimony that was not administra- stricken drug ampicillin ineffective tion of —should —the begun hour, but rather that within an have been chloramphenicol, appropriate medicine, or other administered hour. have within the should

c stressing judge it was the who intro- In administering delay the issue whether duced chloramphenicol issue, I do not wish be was an saying judge may that a raise understood as bump proverbial issues, on and must sit like log. My point, rather, is that it was not until judge raised the issue that defendants timeliness/delay not issues. claimed that were object lawyers The failure defendants’ timeliness/delay in treatment was the basis that sug- judge the issue not gests issue until raised an they were on notice timeliness/ they was an issue. The record shows Mich Dissenting Opinion by Levin, J. through depo- were indeed on notice Dr. Thoman’s sition and the mediation statement.

Case Details

Case Name: Dacon v. Transue

Court Name: Michigan Supreme Court

Date Published: Sep 29, 1992

Citation: 490 N.W.2d 369

Docket Number: 90339, (Calendar No. 7)

Court Abbreviation: Mich.