JONES v BOTSFORD CONTINUING CARE CORPORATION
Docket No. 317573
Michigan Court of Appeals
April 7, 2015
310 Mich App 192
Submitted December 4, 2014, at Detroit. Decided April 7, 2015, at 9:05 a.m.
Mildred Jones, as the personal representative of the estate of Amos Jones, brought a medical malpractice action in the Oakland Circuit Court against Botsford Continuing Care Corporation, Dr. Thomas Selznick, and Livonia Family Physicians, PC. After being admitted to Botsford and while in an agitated state, Amos pulled out a percutaneous endoscopic gastronomy (PEG) tube that had been inserted through his abdominal wall to provide him nutrition. The tube was reinserted approximately eight hours later. Plaintiff alleged that the tube was improperly reinserted leading to an infection and Amos‘s death. Defendants moved for summary disposition under
The Court of Appeals held:
1. Under
2. Under
Reversed and remanded.
DONOFRIO, P.J., concurring in part and dissenting in part, concurred with the result reached by the majority with respect to reversing the grant of summary disposition on plaintiff‘s nursing malpractice claim, but disagreed that plaintiff‘s counsel could have held a reasonable belief that Compton was qualified to give standard of care testimony regarding Selznick and would have affirmed the trial court‘s grant of summary disposition on the physician malpractice claims. With regard to the nursing malpractice, Botsford failed to support its motion for summary disposition with documentary evidence. Looking at the nursing notes in the light most favorable to plaintiff, there was a question of fact regarding whether an RN or an LPN reinserted the PEG tube. Summary disposition, therefore, was not appropriate. Judge DONOFRIO did not join, however, the majority‘s discussion related to whether an RN may offer standard of care testimony concerning an LPN, because the discussion was not necessary to resolve the issue presented in this case. Regarding the claims of physician malpractice, although Compton‘s and Selznick‘s board certifications in their subspecialties shared the common word “geriatrics,” their certifications were not equivalent. Compton‘s board certification of geriatrics in the field of internal medicine was not the same as Selznick‘s board certification of geriatrics in the field of family medicine. As a result, under
Bendure & Thomas (by Mark R. Bendure) and McKeen & Associates, PC (by Andrew F. Kay), for Mildred Jones.
Riley & Hurley, PC (by Robert F. Riley and Allison M. Ensch), for Thomas Selznick and Livonia Family Physicians, PC.
Tanoury, Nauts, McKinney & Garbarino, PLLC (by Linda M. Garbarino and David R. Nauts), for Botsford Continuing Care Corporation.
Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ.
FORT HOOD, J. Plaintiff, Mildred Jones, as the personal represеntative of the estate of her husband, Amos Jones, appeals from the trial court order granting summary disposition in favor of defendants, Botsford Continuing Care Corporation, Dr. Thomas Selznick, and Livonia Family Physicians, PC, in this medical malpractice and wrongful-death lawsuit. For the reasons set forth in this opinion, we reverse and remand.
I. FACTS
Amos Jones, an elderly man, was admitted to Botsford Continuing Care (BCC), an extended care facility, for care following hospitalization for a stroke. As a result of the stroke, Jones had difficulty swallowing and so during his hospitalization, a percutaneous endoscopic gastrostomy (PEG) tube was surgically inserted through his abdominal wall and into his stomach in order to provide nutrition. When Jones was admitted to BCC on November 12, 2007, the PEG tube was in place. According
Before filing suit, in accordance with
Pursuant to
When plaintiff filed the complaint initiating this lawsuit, her attorney attached two affidavits of merit as required by
As required by
BCC‘s affidavit of meritorious defense filed in response to the claim of nursing malpractice was signed by Marguerite Debello, who averred that she was “a registered nurse” and during the relevant period “devoted a majority of my professional time to the active clinical practice of my profession of nursing.”
Defendants moved for summary disposition under
The trial court ruled that the affiants did not satisfy the requirements of
II. STANDARD OF REVIEW
A trial court‘s ruling on a motion for summary disposition presents a question of law reviewed de novo. Titan Ins Co v Hyten, 491 Mich 547, 553; 817 NW2d 562 (2012). Questions of statutory interpretation are also reviewed de novo including the statutory requirements for affidavits of merit. Lucas v Awaad, 299 Mich App 345, 377; 830 NW2d 141 (2013). “Our goal when interpreting and applying statutes or court rules is to give effect to the plain meaning of the text.” Ligons v Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011).
III. ANALYSIS
Whether an expert may provide standard of care testimony at trial is governed by
Both this Court and the Supreme Court have been careful to distinguish these standards and to recognize that “at trial the standard is more demanding because the statute states that a witness ‘shall not give expert testimony’ unless the expert ‘meets the [listed] criteria’ in
In Brown v Hayes, 477 Mich 966 (2006), the Supreme Court reiterated this point. It concluded that even when the expert in question did not qualify to testify under
This Court has similarly notеd the differing tests for whether an expert may testify at trial on the standard of care and for whether a health professional may sign an affidavit of merit. In McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 497-498; 711 NW2d 795 (2006), we held that the plaintiff‘s experts did not qualify, under
In light of these principles, we now review the trial court‘s conclusion that the affidavits of merit filed with plaintiff‘s complaint did not comply with
A. NURSING MALPRACTICE
Regarding the claims of nursing malpractice, we conclude that the trial court erred because it was not unreasonable for plaintiff‘s counsel to obtain an affidavit of merit from an RN.
BCC‘s argument that the case must be dismissed rests first and foremost on its assertions that the caregiver who reinserted the PEG tube was an LPN and that this information was available in the medical records. However, defendant has offered no evidence that this assertion is true. Indeed, a review of the medical records makes clear that the relevant caregiver
The sole basis for BCC‘s assertion is a single page of handwritten nursing notes dated November 15, 2007, much of which is illegible. There is a note timed at 12:00 a.m. that appears to have been signed by an LPN, albeit with an illegible signature. BCC claims in its brief that this nurse reinserted the PEG tube. However, this assertion is simply not supported by the nursing notes, insofar as they can be deciphered, or by any other proofs or affidavits. Significantly, the 12:00 a.m. note does not say that the nurse on duty then reinserted the tube. Rather, reinsertion of the PEG tube is first referred to in a nursing note written eight hours later, at 8:00 a.m., in which a different author writes, “peg tube replaced[.]” The 8:00 a.m. note is signed, but the signature is illegible and the 8:00 a.m. note does not indicate whether the person making the entry was an LPN or RN. It is also readily apparent upon observation of the 8:00 a.m. note that it was not written by the same individual who wrote the 12:00 a.m. note.4
Even if we were to accept as true BCC‘s unsupported assertion regarding the identity of the relevant caregiver, a proposition wholly inconsistent with our stan-dard of review, it would not alter the outcome of this appeal because plaintiff‘s attorney had a reasonable belief that the affiant could testify.
First, given the limited evidence available at the time the affidavit of merit was filed, it would have been reasonable for plaintiff‘s counsel to have concluded that the relevant nurse was an RN. As stated by our Supreme Court in Grossman, 470 Mich at 599-601, when determining the reasonableness of an attorney‘s belief at the affidavit of merit stage, we look to the resources available to that attorney at the time the affidavit was prepared. As just noted, the medical records did not provide the relevant information. Moreover, BCC never complied with its statutory duty to respond to plaintiff‘s notice of intent to file a claim with a written statement providing “[t]he factual basis for the defense to the claim” in which it presumably would hаve identified the caregiver who reinserted the PEG tube and his or her qualifications.
Second, we find reasonable plaintiff‘s counsel‘s legal conclusion that an RN may offer standard of care testimony against an LPN. Whether an RN may ultimately offer such testimony at trial is not before us and we do not decide that issue, but plaintiff‘s counsel‘s conclusion that an RN was a proper affiant, even if the relevant actor was an LPN, would not have been unreasonable
Indeed, the statutory definitions of LPN and RN support this conclusion, as does the relevant caselaw. Both RNs and LPNs are liсensed in the “practice of nursing.”
“Practice of nursing” means the systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury or disability.
The same section goes on to define the practice of nursing as an LPN and as an RN:
(b) “Practice of nursing as a licensed practical nurse” or “l.p.n.” means that practice of nursing based on less comprehensive knowledge and skill than that required of a registered professional nurse and performed under the supervision of a registered professional nurse, physician or dentist.
(c) “Registered professional nurse” or “r.n.” means an individual licensed under this article to engage in the practice of nursing which scope of practice includes the teaching, direction, and supervision of less skilled personnel in the performance of delegated nursing activities. [
MCL 333.17201(1) .]
Consistently with these definitions,
These statutory definitions make clear that any work that may be performed by LPNs may also be performed by RNs. Indeed, RNs can direct and supervise LPNs in the performance of their duties. Each is wholly engaged in the “practice of nursing” and neither has any specialty training.5 The only difference is the extent of their general training and authority. The situation appears analogous to that of a physician specialist as to a resident physician in specialty training. In Bahr v Harper-Grace Hosps, 448 Mich 135; 528 NW2d 170 (1995), the Supreme Court held that a physician who is a fully qualified specialist may testify regarding the standard of care applicable to a resident physician training in that specialty. See also Gonzalez v St John Hosp & Med Ctr (On Reconsideration), 275 Mich App 290; 739 NW2d 392 (2007).
In sum, we conclude that the trial court erred by dismissing the claims against BCC that are based on allegations of nursing malpractice. We reach this conclusion for each of the following reasons: (a) there is a question of fact whether the nurse in question was an LPN or an RN, (b) given BCC‘s failure to respond to the notice of intent and identify whether the nurse in question was an LPN or RN, that information was not reasonably available to plaintiff‘s counsel when the complaint and affidavits of merit were filed and (c) it would have been reasonable for plaintiff‘s counsel to conclude that an RN could offer testimony regarding the standard of care for an LPN.
B. PHYSICIAN MALPRACTICE
The claims of physician malpractice apply directly to Dr. Selznick, and to his practice and BCC through agency.
Factually, plaintiff‘s expert affiant attested that at the relevant time, he was a specialist in two areas of medicine, one of which was geriatric medicine, and that more than 50% of his practice was in that specialty. Plaintiff‘s counsel believed that at the relevant time, Dr. Selznick was also a specialist in geriatric medicine. Dr. Selznick now assеrts that his only specialty is in family medicine and that he is not a specialist in geriatric medicine. We conclude, however, that plaintiff‘s counsel‘s conclusion that Selznick was a geriatric specialist was a reasonable one, at least at the presuit stage.
First, Dr. Selznick‘s professional biography on his own website affirmatively states that he is “Board Certified in . . . Geriatrics.” We find it difficult to accept that a doctor may publicly advertise himself as having a particular specialty and then claim that no one could have reasonably believed that his assertion was true.
Second, given that plaintiff was an elderly man in a nursing home, it would be reasonable for plaintiff‘s counsel to have concluded that the one most relevant specialty was geriatric medicine. Indeed, Dr. Selznick was the medical director of the nursing home, a position which one would reasonably conclude could not be obtained by physicians who do not specialize in geriatric medicine.
Third, plaintiff‘s notice of intent made absolutely clear that plaintiff‘s counsel believed that Dr. Selznick was a specialist in geriatric medicine and that geriatric medicine was the specialty that he was practicing at the time in question. The notice further asserted that the relevant standard of care was the one applicable to geriatric medicine specialists. Upon receipt of the notice of intent, Dr. Selznick had a statutory duty to respond with “a written response that contains a statement of” (a) the factual basis for the defense to the claim and (b) the standard of practice or care that he claimed applied to the action.
In the decade following the passage of 1993 PA 78, many issues arose concerning the exact nature of the requirements it adopted in medical malpractice cases. Many of these difficulties arose from questions about expert qualifications, particularly the issue of “matching” specialties. Most of these issues were resolved by our Supreme Court in Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006). However, some issues escaped conclusive treatment in Woodard. One of these remaining issues is what constitutes an expert “match” when a physician has a board certification, but also carries a certificate of added qualification. This is particularly true when, at the time of the occurrence that is the basis of the medicаl malpractice action, the physician was practicing in the specialty defined by the certificate of added qualification.
Defendants rely on Halloran v Bhan, 470 Mich 572, 575-580; 683 NW2d 129 (2004), in which the Supreme Court held that the plaintiff‘s medical expert should not be permitted to testify at trial7 because, as a board-certified specialist in anesthesiology, he did not
“match” the qualifications of the defendant, who was a board-certified specialist in internal medicine, even though they each possessed certificates of additional qualification in critical care. However, Halloran was decided two years before Woodard and the decision was circumscribed by the fact that all parties to the case agreed that a certificate of added qualification did not constitute a board certification. Thus, in Halloran, the legal import of a certificate of added qualification was not an issue in dispute. See id. at 575 (“The parties do not dispute that the subspecialty certification [of added qualification] is not ‘board certification’ for the purpose of [MCL 600.2169].“). The plaintiff argued that his expert, who by the parties’ agreement was only board certified in anesthesiology, should be permitted to testify against an internal medicine specialist simрly because the case arose in a hospital‘s critical care unit and the parties shared a “subspecialty” by virtue of their matching certificates of added qualifications. Id. at 575-576. All three Court of Appeals judges concluded as a matter of law that “critical care medicine” cannot be considered a specialty because, as the parties agreed, there is no board certification available in it.8 Halloran v Bhan, unpublished opinion per curiam of the Court of Appeals, issued March 8, 2002 (Docket No. 224548), unpub op at p 2; id. at 1-2 (HOEKSTRA, J., dissenting). The majority concluded that
did not apply at all. The dissent agreed that critical care medicine is a not a specialty, but concluded that the defendant‘s internal medicine board certification meant that witnesses for or against him had to be board certified in internal medicine. Id. at 1 (HOEKSTRA, J., dissenting). The Supreme Court essentially adopted the analysis of the dissenting Court of Appeals judge, noting that “[t]he parties do not dispute that the subspecialty certification is not ‘board certification’ for the purpose of the statute.” Halloran, 470 Mich at 575. Accordingly, Halloran concluded that the defendant‘s only specialty was internal medicine and that the plaintiff‘s expert, whose only specialty was anesthesiology, could not testify at trial regarding the standard of care.
Had Halloran been the last word on the question, we would agree with defendants that plaintiff‘s counsel could not have concluded that geriatric medicine is a specialty and that both defendants’ and plaintiff‘s affiants are board-certified specialists in that field. However, Halloran was not the last word. In 2006, the Supreme Court decided Woodard along with its companion case, Hamilton v Kuligowski.
Woodard substantially changed the landscape in terms of what constitutes a specialty for purposes of
First, Woodard held that “a certificate of special qualifications . . . constitutes a board certificate.” Woodard, 476 Mich at 565. Thus, contrary to the parties’ agreement in Halloran, a certificate of special or added qualification constitutes a “board certification.”
Second, Woodard held that “a ‘specialist’ is somebody who can potentially become board certified. . . . Accordingly, if the defendant physician practices a
particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff‘s expert must practice or teach the same particular branch of medicine or surgery.” Id. at 561-562. Therefore, if a defendant has the training and experience necessary to qualify for a certificate of special qualification, the defendant is a specialist in that field. Putting it more directly, the Court held that “[a] subspecialty, although a more particularized specialty, is nevertheless a specialty.” Id. at 562.
Third, Woodard held that when a defendant has multiple specialties, a testifying expert must only “match the one most relevant standard of practice or care—the specialty engaged in by the defendant physician during the course of the alleged malpractice, and, if the defendant physician is board certified in that specialty, the plaintiff‘s expert must also be board certified in that specialty.” Id. at 560.
To put it in the form of a syllogism, Woodard tells us that:
(a) A certificate of special qualification is a board certification.
(b) Therefore, a certificate of special qualification in geriatric medicine is a board certification in geriatric medicine.
(c) Because board cеrtification in geriatric medicine is available to physicians with the necessary training and experience, geriatric medicine is a specialty.
(e) Both Dr. Selznick and plaintiff‘s expert affiant are board certified in the one most relevant specialty, i.e., geriatric medicine.
Having laid out this reasoning, we still decline to reach the question whether Dr. Compton may testify at trial regarding standard of care. Halloran has not been explicitly overruled, and we leave it to the Supreme Court to determine whether and to what extent Woodard did so.9
Moreover, Woodard presents a somewhat different factual situation from that in the present case. In that case, the Court concluded that a physician who is board certified in pediatrics may not testify regarding a physician who is board certified in pediatrics and also has a certificate of added qualification in pediatric critical care when the action arisеs in the context of care in a pediatric special care unit. Id. at 575-577. In the companion case, Hamilton, the Court held that an expert who was board certified in internal medicine and had a certificate of special qualifications in infectious disease (and spent more than 50% of his time treating infectious diseases) could not testify against a physician who was also board certified in internal medicine when the action arose in the context of “ordinary” internal medicine. Id. at 577-578. Neither of those cases involved the precise circumstances we are presented with here—where both doctors are board certified in geriatrics and the relevant area of practice is geriatrics, but their geriatric certifications were issued by different boards.10
We conclude that plaintiff‘s affidavit of merit regarding Dr. Selznick satisfied
For the same reason, we also deny BCC‘s motion to dismiss the claims against it based on allegations of physician malpractice. Indeed, the outcome is even more clear with regard to BCC, given that BCC‘s relevant affidavit of meritorious defense was signed by a physician who possessed only an internal medicine board
IV. CONCLUSION
For the reasons discussed herein, the affidavits of merit filed by plaintiff‘s counsel complied with
SHAPIRO, J., concurred with FORT HOOD, J.
DONOFRIO, P.J. (concurring in part and dissenting in part).
DONOFRIO, P.J. (concurring in part and dissenting in part). I concur with the result reached by the majority with respect to the reversal of the grant of summary disposition on plaintiff‘s nursing malpractice claim. But because plaintiff‘s attorney could not have held a reasonable belief that his expert matched the necessary qualifications to render testimony on the standard of care with rеspect to defendant Dr. Thomas Selznick, I would affirm the grant of summary disposition on the physician malpractice claims.
This Court reviews a trial court‘s decision on a motion for summary disposition de novo. Allen v Bloomfield Hills Sch Dist, 281 Mich App 49, 52; 760 NW2d 811 (2008). A motion under
Additionally, questions of statutory interpretation and court rule interpretation also are reviewed de novo. Ligons v Crittenton Hosp, 490 Mich 61, 70; 803 NW2d 271 (2011). Further, whether a plaintiff‘s affidavit of merit complied with the requirements of
I. NURSING MALPRACTICE CLAIM
I concur with the majority that the trial court erred by granting summary disposition with respect to the nursing malpractice claim. But because this issue can be decided solely on the basis of defendant Botsford Continuing Care (BCC) not supporting its motion for summary disposition with documentary evidence, I do not join in the majority‘s discussion related to whether plaintiff‘s counsel held a reasonable bеlief that a registered nurse can provide testimony on the standard of care for a licensed practical nurse.
When moving for summary disposition under
Moreover, with the sheer lack of information available to plaintiff‘s counsel when the affidavit was prepared, one cannot conclude that counsel acted unreasonably in thinking that an RN was the one who replaced the PEG tube. This is true especially when considering that the person who signed the notation, “peg tube replaced,” was not the same person who signed earlier with the “LPN” designation.
Consequently, the trial court erred by granting BCC‘s motion to dismiss this claim. Because the issue is resolved on the two bases I describe, I do not join the discussion that the majority engages in related to whether plaintiff‘s attorney‘s legal conclusion that an RN may offer testimony on the standard of care for an LPN was reasonable. See Dessart v Burak, 252 Mich App 490, 496 n 5; 652 NW2d 669 (2002) (stating that obiter dictum is a judicial comment that is not necessary to the decision and is not precedential).
II. PHYSICIAN MALPRACTICE CLAIMS
Because I do not believe that plaintiff‘s attorney‘s belief was reasonable with respect to Dr. Gregory A. Compton possessing the relevant board certifications, I respectfully disagree with the majority‘s holding regarding the sufficiency of that affidavit. Accordingly, I would affirm the trial court‘s grant of summary disposition on the physician malpractice claims.
”
In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practiсe or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
Our Supreme Court‘s holdings in Halloran v Bhan, 470 Mich 572; 683 NW2d 129 (2004), and Woodard v Custer, 476 Mich 545; 719 NW2d 842 (2006), require an expert witness testifying regarding the standard of care to possess the same one
Two years later, the Supreme Court decided Woodard. In Woodard, the Supreme Court held that the plaintiff‘s proposed witness, who was board certified in pediatrics, could not testify on the standard of care against the defendant, who was board certified in pediatrics but also possessed a certificate of special qualification in pediatric critical care medicine. Woodard, 476 Mich at 554, 577. The Court explained that “a subspecialty is a specialty within the meaning of
By ruling thаt Dr. Compton and Dr. Selznick were both “board certified in the one most relevant specialty, i.e., geriatric medicine,” the majority is making an error. Dr. Compton was board certified in internal medicine and possessed a certificate of added qualification in geriatrics. Dr. Selznick was board certified in family medicine and had a certificate of added qualification in geriatrics. But just because their board certifications in their subspecialties shared the common word “geriat-rics,” it does not mean that those certifications are equivalent.3
As the Supreme Court in Woodard explained, “[A] ‘subspecialty’ is a particular branch of medicine or surgery in which one can potentially become board certified that falls under a specialty or within the hierarchy of that specialty. A subspecialty, although a more particularized specialty, is nevertheless a specialty.” Id. at 562 (emphasis added). Thus, because subspecialties “fall[] under” a particular
However, that is not the end of the analysis because
In his response to defendant‘s motion for summary disposition, plaintiff‘s counsel argued that his belief was reasonable based on a review of Dr. Selznick‘s employer‘s website. As the majority notes, the preamble or introductory text on the web page states in general terms that Dr. Selzniсk was “Board Certified in Family Practice, Geriatrics and Medical Directorship of Long Term Care Facilities.” However, lower on that same web page, it provides a heading in bold type, called “Board Certifications,” and under that heading is a list of the specific board certifications Dr. Selznick possessed and the years he acquired them. Relevant to this discussion, it lists “AOBFP: 1991” and “AOBFP—CAQ Geriatrics: 1992.” Thus, while the general text on the web page did not make it clear that the geriatrics certification was actually a subspecialty of family medicine, the notation “CAQ“, which stands for “cer-tificate of added qualification,” makes clear that this certification was in relation to a narrower subspecialty.5 See Woodard, 476 Mich at 562. Therefore, with AOBFP standing for the American Osteopathic Board of Family Physicians, it is clear that Dr. Selznick‘s board certification was in family medicine and that he also possessed a certification in the subspecialty of geriatrics in the field of family medicine. Accordingly, I would conclude that, looking at the website as a whole, it is apparent that plaintiff‘s attorney needed an expert who
To the extent that plaintiff and the majority rely on the fact that defendants similarly provided the wrong expert when they later supplied their affidavit of meritorious defense, this fact is irrelevant. Defense counsel‘s later unreasonableness cannot transform plaintiff‘s counsel‘s prior unreasonableness into being reasonable. In more familiar terms, “Two wrongs do not make a right.” And more importantly, plaintiff‘s counsel did not have access to defendants’ affidavit of meritorious defense at the time the affidavit of merit was filed, so any reliance on that later-issued affidavit is misplaced. See Grossman, 470 Mich at 599-600.6
III. AMENDMENT OF AFFIDAVITS
Plaintiff also contends that, even if any affidavit of merit were defective, she should be allowed to “amend” it by submitting a new one signed by the appropriately credentialed professional. The majority did not need to address this issue because it was moot given their resolution of the case. However, because I would conclude that Dr. Compton‘s affidavit of merit was deficient, I will briefly address the issue.
Plaintiff alleges that the trial court erred by failing to even address this issue. However, any failure by the trial court to address amendment was reasonable because it appears that plaintiff never took the trial court up on its offer to pursue that remedy. A review of the lower court record reveals no motion by plaintiff to amend the affidavit. At best, in her response to defendants’ motions for summary disposition, plaintiff cited the law that allows affidavits of merit to be amended, but she
The Court: Okay. So the Court is going to grant defendant‘s motion for Summary Disposition pursuant to [
MCR 2.116(C)(10) ] as to all claims against Defendant Selznick, Livonia Family Physicians, and Botsford Continuing Care Corporation.The affidavit of merit was signed by a doctor who does not have the same general board certification as Doctor Selznick, which is contrary to statute. The affidavit of merit regarding the licensed practical nurse was signed by a registered nurse and is also inappropriate. Therefore, based upon the defective affidavits of merit, the motion is granted.
I‘m gonna decline to accept [defendants‘] oral amendment to include [
MCR 2.116(C)(7) ] on this matter, so I‘m not gonna grant you a final judgment.7 [Plaintiff‘s counsel] says he has further plans and I‘m gonna allow him to pursue those.
* * *
[Plaintiff‘s Counsel]: So, I mean, do we—can we still amend then, do we still—
The Court: You‘re the lawyer.
[Plaintiff‘s Counsel]: Okay.
The Court: Okay.
[Plaintiff‘s Counsel]: All right.
The Court: You know. I‘m not gonna tell you what you should or shouldn‘t do and I don‘t know the merits of what you have planned, but I‘ve left it open for you to do so. [Emphasis added.]
Even after the trial court left the door “open” for plaintiff to take further action, no motion to amend was ever filed with the court. All the record shows is that plaintiff moved for reconsideration and after that motion was denied, she eventually filed a new complaint (presumably with the proper affidavits attached). With the trial court never precluding plaintiff from seeking to amend the affidavits in the original action, I perceive no error for this Court to correct.
Moreover, I openly question whether plaintiff‘s current desire to substitute the prior affidavits of merit with entirely new ones signed by different affiants qualifies as amending the prior affidavits. “Amendment” is defined in relevant part as “a change made by correction, addition, or deletion.” Random House Webster‘s College Dictionary (2001). Here, there are no “changes” being made to the prior affidavits, let alone any “corrections,” “additions,” or “deletions.” Instead, plaintiff‘s goal is to entirely replace the prior affidavits with new ones signed by new affiants. On the other hand, if an “amended” affidavit was signed by the same affiant with only changes to what the affiant was averring, then it would properly be considered an “amendment.” Therefore, even if plaintiff had moved to amend, I do not believe that this type of wholesale substitution would qualify as an “amendment” under the applicable court rules.
IV. CONCLUSION
Accordingly, I agree that the trial court erred by dismissing the nursing malpractice claim, but I would affirm the trial