OPINION AND ORDER GRANTING DEFENDANTS CORRECTIONAL MEDICAL SERVICES, INC. AND CRAIG HUTCHINSON, M.D.’S MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT
AND
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT BADAWIABDELLATIF’S MOTION TO DISMISS AND/OR MOTION FOR SUMMARY JUDGMENT
In October 2007, Raymond E. Jones died of viral meningoencephalitis while under the control of the Michigan Department of Corrections. Plaintiff, personal
For the reasons discussed herein, the court will grant the motion of Defendants Correctional Medical Services, Inc. and Craig Hutchinson and will grant in part and deny in part the motion of Defendant Badawi Abdellatif.
I. Background
On September 26, 2007, Raymond E. Jones died of viral meningoencephalitis. Mr. Jones, a prisoner at the Ernest Brooks Facility, under the control of the Michigan Department of Corrections (“MDOC”), had first begun complaining of a strange dizziness 28 days earlier, on August 29, 2007. This suit concerns the treatment and care that Mr. Jones received during those four weeks, alleging that defendants’ actions make them hable under 42 U.S.C. § 1983, the Michigan Wrongful Death Act, and the tort doctrines of gross negligence and intentional infliction of emotional distress.
No one corporation or governmental department is entirely responsible for providing health care to Michigan prisoners. Instead, several different entities provide services at various points in the process. The MDOC itself employs Registered Nurses (“RNs”) who provide direct care for prisoners, but it has contracted out part of its health-care duties to Defendant Correctional Medicаl Services (“CMS”). CMS employs doctors, either as employees or as independent contractors, to care for prisoners directly. Both CMS and the MDOC also rely on outside hospitals to provide care, presumably that which they are unable -or ill-suited to provide. This case is at least partly about the precise responsibilities and actions of each of these entities, and the roles that each played in Mr. Jones’s medical care, or lack thereof, and his ultimate demise.
Raymond Jones first complained of dizziness on August 29, 2007. He told prison staff that he was getting dizzy when he closed or rubbed his eyes, turned his head, or stood up. (Medical Record, ECF No. 154, Ex. 1 at 1-2.) He was evaluated by MDOC-employed registered nurses over the next several days,
Mr. Jones continued to bring his complaints to the prison medical staff over the next 13 days, while his symptoms continued to trouble him. He informed nurses that, among other things, he couldn’t see out of one eye because of the dizziness, he had been throwing up for at least two
During this time, other inmates began to get concerned about Mr. Jones’s health. One man, Troy Reinstra, contacted his mother about Mr. Jones’s health problems and asked her if she would get in contact with Doug Tjapkes, a prisoner advocate with Humanity for Prisoners, about getting Mr. Jones some medical'care. (See Reinstra Dep., ECF. No. 154, App’x, at 12-17; Reinstra Aff., ECF No. 154, Ex. 10.) Mr. Jones’s bunkmаte, Jesse Hawkins, and Kenneth Mazurek, another inmate at the facility, also signed affidavits testifying to Mr. Jones’s deteriorating condition. (See Hawkins Aff., Mazurek Aff., ECF No. 154, Ex. 10.)
Despite these symptoms, Mr. Jones was not seen by a doctor until September 11, almost two weeks after he first complained of dizziness. Dr. Abdellatif, who was employed by CMS, examined Mr. Jones and assessed him as having “[u]nexplained headachesf,] double vision[,] and dizziness with loss of balance,” as well as high blood pressure. (Medical Record, ECF No. 154, at 19.) Dr. Abdellatif noted the need to rule out “brain pathology,” and he ordered Mr. Jones sent to the emergency room for further evaluation. (Id.) Dr. Abdellatif testified at deposition that he did not call the hospital to advise them regarding Mr. Jones’s status or symptoms, (Abdellatif Dep., ECF No. 154, App’x, at 67-68.) Nor do the records show that Mr. Jones’s medical records were sent with him to the emergency room. (See Buchanan Dep., ECF No. 154, App’x, at 57.)
Mr. Jones’s symptoms remained when he returned from the hospital later that day. (Medical Record, ECF No. 154, Ex. 1 at 22.) When Dr. Abdellatif saw him again the next day, Mr. Jones again showed high blood pressure, as well as a 5-pound weight loss in the last 24 hours. (Id.) Mr. Jones told Dr. Abdellatif that he had a CT scan at the hospital and that the results were normal, but Dr. Abdellatif did not contact the hospital to obtain the actual test results. (Id. at 25; Abdellatif Dep., ECF No. 154, App’x, at 78-79.) After this examination, Dr. Abdellatif ordered Mr. Jones returned to the emergency room. (Medical Record, ECF No. 154, Ex. 1, at 24-25.) While Dr. Abdellatif testifies that he talked to the emergency room this time about Mr. Jones’s situation, there is a discrepancy between the prison’s medical records, which state that he did talk to the emergency room, and the version of the records provided to the emergency room, which does not contain any suсh notation. (Compare id. at 25-26; with Hospital Record, ECF No. 154, Ex. 8.) Further, the emergency room doctor does not recall any conversation with Dr. Abdellatif, or indeed, any other prison physician, about admitting a prisoner to the hospital. (Evans Dep., ECF No. 154, App’x, at 47-54.) Nor do the hospital records include any information regarding such a call, as would be required by hospital policy. (See id. at 48.)
Again, Mr. Jones was sent to the emergency room, and again, he was returned that day. (Medical Record, ECF No. 154, Ex. 1, at 26-28.) Dr. Abdellatif did not see Mr. Jones when he returned. Instead, an MDOC nurse examined Mr. Jones, who stated that he was “scared.” (Id. at 31.) Mr. Jones told the nurse that the right side of his face was numb and that he felt like he was floating. His right eye was “asymmetrical and wandering,” and Mr. Jones was unable to swallow his own saliva. (Id.) The nurse consulted with another prison’s hospital and was ordered to send
This time, Mr. Jones went to the ER of a different hospital. He again returned to the prison shortly thereafter. Dr. Abdellatif evaluated Mr. Jones the next day, September 18. Mr. Jones was still exhibiting symptoms, and his blood pressure was now up to 173/119. He was “unsteady on [his] feet” and claimed that he couldn’t swallow and “need[ed] water bad.” (Id. at 37.) Dr. Abdellatif prescribed some medicines and ordered that Mr. Jones be given a bottom bunk and a liquid diet. (Id. at 34-35.)
The next day, September 14, Dr. Abdellatif contacted the hospital and arranged for Mr. Jones to be admitted. (Id. at 40-41.) At the hospital, Mr. Jones was diagnosed with meningoencephalitis, an inflammation of the brain and meninges, the membranes covering the central nervous system. He remained at the hospital until September 26, when he died.
Plaintiff Yvette Jones (“Plaintiff’) filed the present suit as personal representative of Mr. Jones’s estate, naming as defendants Correctional Medical Services (“CMS”), which has contracted to provide health care to MDOC prisoners; Craig Hutchinson, regional medical director of CMS; Badawi Abdellatif, M.D., a doctor who provided Mr. Jones with medical care under contract with CMS; and a number of MDOC employees who are not parties to these motions.
In these two Motions, Defendants CMS and Hutchinson (ECF No. 94), and Defendant Abdellatif (ECF No. 139), ask the court to dismiss Plaintiffs claims against them. Each Motion is fashioned as a Motion to Dismiss and/or a Motion for Summary Judgment, and Defendants argue both Rule 12(b)(6) and Rule 56 in their briefing. After a hearing regarding both motions, held on October 31, 2011, Plaintiff and Defendant Abdellatif filed supplemental briefing, per this court’s request, on whether certain aspects of Michigan’s medical-malpractice statute apply to Plaintiffs tort claims.
II. Analysis
As an initial matter, the court can dispose of Plaintiffs “gross negligence” and “intentional infliction of emotional distress” claims (Count III) against Defendants CMS and Hutchinson. These two defendants argue that Plaintiffs allegations fail to state a claim on which relief can be granted. (ECF No. 94, 11-16.) Plaintiff does not contest these claims, and indeed she agrees to dismissal of both tort claims against these two defendants; “Counsel stipulates to partial summary judgment on plaintiffs claims for gross negligence against CMS and Dr. Hutchinson, including any claims for intentional infliction of emotional distress.” (PL’s Resp., ECF No. 104, at 10.)
Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions, together with the affidavits, show there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); Tucker v. Tennessee,
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
B. Plaintiffs Section 1983 Claim Against CMS
Plaintiff claims that defendants, including CMS, violated the Eighth Amendment’s prohibition of cruel and unusual punishment. Treatment of a prisoner violates the Eighth Amendment when it constitutes “deliberate indifference to [the] prisoner’s serious illness or injury.” Estelle v. Gamble,
Count II of Plaintiffs First Amended Complaint alleges Section 1983 “supervisory liability” against CMS. Defendant CMS argues that the doctrines of vicarious liability and respondeat superior do not apply in Section 1983 actions. Instead, Section 1983 liability against a private corporation such as CMS requires that the plaintiff show that its injury resulted from a policy, practice, or procedure of that corporation. According to CMS, not only has Plaintiff failed to uncover any facts that demonstrate such a policy, practice, or procedure, but in fact it cannot do so, because CMS provided its medical services under MDOC policies, not its own. CMS asserts that Plaintiff knows this, as her attorney acknowledged before Magistrate Judge Scoville:
Well, to be perfectly straightforward with your Honor, my original understanding, although incorrect ultimately, was that CMS was responsible as themedical service provider for the MDOC for the policies and practices of the Michigan Department of Corrections. That’s not true. That’s incorrect, and the policies and practices lie directly with the MDOC itself.
(Def.’s Br., ECF No. 94, Ex. B, at 6.) Thus, according to Defendant, the evidence shows no genuine dispute regarding any fact that would allow the claim against it to go forward.
Defendant is correct that CMS cannot be held liable under Section 1983 on a supervisory liability theory. Because CMS was providing medical services to inmates under contract with MDOC, it may properly be sued under Section 1983. See Hicks v. Frey,
For her claim to succeed, Plaintiff must therefore: (1) identify a policy or custom; (2) connect the policy or custom to CMS; and (3) show that executing that policy amounted to deliberate indifference to Mr. Jones’s illness. See Garner v. Memphis Police Dep’t,
Though Plaintiff has pleaded that Defendants, including CMS, maintained a number of “customs and/or policies and practices” (First Am. Compl., ECF No. 44, at 15-16), the court finds that Defendant’s showing meets its initial burden by pointing out the absence of evidence connecting any policy or custom to CMS in particular. To avoid summary judgment, then, Plaintiff must draw -this court’s attention to specific facts in the record showing that there is a genuine issue here.
Plaintiff asserts that she has in fact “set forth genuine issues of fact regarding the customs and practices of defendant CMS.” (Pl.’s Resp., ECF No. 104, at 10.) Plaintiffs factual support, however, consists largely of a page-long block quote from the report of her expert, Dr. Jerry Walden, and several citations to Mr. Jones’s medical record.
The rest of Dr. Walden’s report fares no better on this discrete issue. The report makes no reference to CMS policies or customs, though Dr. Walden does state that he had reviewed “Michigan Department of Correction policies” (id. at 1), and the report refers to these MDOC policies in several placеs. (See id. at 2, 8, 9.) The bulk of Dr. Walden’s report is a discussion of Mr. Jones’s individual case, with no reference to CMS’s or its doctors’ standard procedures.
Mr. Jones’s medical record similarly makes no reference to any CMS policies. (See ECF No. 94, Ex. A.) Nor does it suggest any CMS custom that may have contributed to Mr. Jones’s death. In fact, nothing in the medical record links CMS itself to any particular actions taken during Mr. Jones’s treatment. Nor is there any evidence of a relevant CMS custom. To constitute a custom for purposes of Section 1983, a pattern of action must “ ‘be so permanent and well settled as to constitute a custom or usage with the force of law.’ ” Vereecke v. Huron Valley Sch. Dist.,
Plaintiffs briefing does not address its counsel’s in-court admission that the relevant “policies and practices lie directly with the MDOC itself,” rather than with CMS. At the motion hearing, Plaintiffs counsel backtracked, alleging that CMS formerly left its doctors “out of the loop” once their shifts ended. But the record supports counsel’s first statement much better than this one. Plaintiff simply identifies no evidence — and this court found none on its independent review of the record-regarding this practice or any other
This court thus finds that there is no genuine dispute of material fact that would preserve Plaintiffs Section 1988 claim against CMS. CMS is entitled to summary judgment on this claim.
C. Plaintiffs Section 1983 Claim Against Hutchinson
The parties’ arguments regarding the Section 1983 claim against Dr. Hutchinson are similar to the arguments regarding CMS itself. Defendants argue that there is no evidentiary basis for a Section 1983 claim against Dr. Hutchinson, as he “did not participate in the creation of any CMS policies and he was not рersonally involved in the treatment of Mp. Jones.” (Def.’s Br., ECF No. 94, at 8.) Plaintiff again relies on citations to the medical record and Dr. Walden’s expert report. (Pl.’s Resp., ECF No. 104, at 11-14.)
Individual liability under Section 1983 typically requires that the defendant have personal involvement in the constitutional deprivation. As with governmental entities, the doctrine .of respondeat superior does not apply to individuals. See Hays v. Jefferson Cnty.,
Plaintiffs filings are somewhat unclear about the basis or bases of her claim against Dr. Hutchinson. Her argument lumps him in with CMS and the “policy or custom” claims, while the First. Amended Complaint also appears to include a claim based on his individual action. {See First Am. Compl., ECF No. 44, at, 11 (Count I).) Regardless of whether Plaintiff is advancing one or both of these arguments, however, this court finds that Plaintiff has failed to show a genuine dispute of material fact. As discussed above, the evidence on record does not suggest that CMS or Dr. Hutchinson had a hand in formulating any policies relevant to Mr. Jones’s treatment, and Dr. Walden’s report contains nothing more than bare assertions regarding Dr. Hutchinson’s “responsibility” for various aspects of health care procedure. Neither does the evidence suggest that Dr. Hutchinson had any role in Mr. Jones’s treatment. In shоrt, Plaintiff points to no evidence linking Dr. Hutchinson to the events at issue here, and this court’s independent review has uncovered no such evidence. Defendant Hutchinson’s motion should therefore be granted.
D. Plaintiffs Section 1983 Claim Against Abdellatif
In a separate motion, Defendant Abdellatif requests summary judgment dismissal
1. Preliminary Issue: Plaintiff’s Expert Witness Testimony
Defendant’s briefing challenges in passing the qualifications of Plaintiffs expert witnesses. (Def.’s Br., ECF No. 139, at 16.) As the court noted at oral argument, this suggestion of an argument is not enough to allow this court to make a decision regarding any expert testimony at this time. See Kingsley Assocs., Inc. v. Del-Met, Inc.,
2. The Legal Standard of “Deliberate Indifference”
Treatment of a prisoner violates the Eighth Amendment when it constitutes “deliberate indifference to [the] prisoner’s serious illness or injury.” Estelle v. Gamble,
The second component is subjective, requiring that the actor have a “sufficiently culpable state of mind.” Id. (quoting Wilson v. Seiter,
As for the action or inaction required for the “indifference” element, the Supreme Court has stated that deliberate indifference to a risk is equivalent to “recklessly disregarding” that risk or “failing to take reasonable measures to abate it.” Id. at 836, 847,
3. Subjective Perception of a Risk of Harm
Defendant argues that “the evidence does not indicate that Dr. Abdellatif was aware that Mr. Jones had virаl encephalitis.” (Def.’s Br., ECF No. 139, at 14.) But this mistakes the relevant standard here. The law does not require Plaintiff to show that Abdellatif had diagnosed Mr. Jones’s exact disease in order to prove that he acted with deliberate indifference to the risk. Though, as Defendant notes, the Supreme Court in Farmer v. Brennan stated that an official cannot be condemned for his “failure to alleviate a significant risk that he should have perceived but did not,”
Thus, the question here is whether Dr. Abdellatif was aware of, or had inferred that there was, a substantial risk to Mr. Jones’s health, not that he had identified the correct source of that risk out of the range of possible diagnoses. Defendant does not seriously dispute this point. A serious medical need is “one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Harrison v. Ash,
J. Disregard
More on-point is Defendant’s argument that Dr. Abdellatif was not indifferent to Mr. Jones’s plight: “Dr. Abdellatif provided [Mr. Jones] with reasonable medical care for [the] symptoms [he] presented with, and he reasonably deferred to the consulting medical specialists at the hospitals to properly diagnose and treat Mr. Jones.” (Def.’s Br., ECF No. 139, at 14.) These referrals, on their own, will not protect Dr. Abdellatif. See LeMarbe v. Wisneski,
Plaintiff alleges that Dr. Abdellatifs care was “cursory ... at best” and constituted deliberate indifference. Specifically, Plaintiff focuses on the following aspects of Mr. Jones’s care: (1) Dr. Abdellatifs decision to send Mr. Jones to the hospital on September 11 without any accompanying medical information indicating his history or Dr. Abdellatifs suspicions and reasons for sending him; (2) Dr. Abdellatifs failure to see Mr. Jones after he returned from the emergency room on September 11; (3) Dr. Abdellatifs failure to review the emergency room’s test results on September 12; (4) Dr. Abdellatifs decision to send Mr. Jones back to the emergency room on September 12, again without any accompanying medical information;
Defendant counters that Plaintiffs case amounts to nothing more than a claim of negligence or medical malpractice. Mr. Jones was given medication for his symptoms as he presented them. He was sent to the hospital four times — three by Dr. Abdellatif himself, each promptly after he saw Mr. Jones — and examined each time he returned. No one who saw Mr. Jones
Defendant is correct that Plaintiff needs to establish more than a simple medical malpractice claim. See Comstock v. McCrary,
In Comstock v. McCrary, the Sixth Circuit allowed a Section 1983 claim to go forward against a prison psychologist.
The case of McCarthy v. Place,
On the other side of the issue, the court in Jones v. Muskegon County,
Both the Comstock and LeMarbe panels expressly distinguished their cases from Williams. Whereas Williams involved a choice of “one medically reasonable form of treatment over another,” the Comstock psychologist’s cursory evaluation was a simple failure to “respond reasonably to the substantial risk of harm.” Comstock,
Comparing these cases demonstrates a common principle used to distinguish deliberate indifference from a matter of medical judgment that does not rise to a constitutional violation. Where the defendant made a reasoned choice between two alternative treatments, considering the risk to the patient in doing so, the courts typically refuse to second-guess the doctor’s judgment, even when the decision was in fact wrong. See Williams,
On the other hand, where the defendant failed to consider more effective alternatives or where the alleged shortcoming involved violations of protocol or failures of process — that is, when there was no “medical judgment” to speak of — the courts give less deference to the medical treatment provider. See, e.g., Phillips v. Roane Cnty.,
Plaintiffs claims in this case allege failures of process: Dr. Abdellatif s failure to review the emergency room’s test results; his repeatedly sending Mr. Jones to the hospital without medical records or even a note indicating a reason; and his failure to see Mr. Jones promptly either time he was returned from the emergency room. These claims are more akin to the “cursory evaluation” cases than to the substantive medical decisions of Jones and Williams. As in Comstock, Phillips, and Perez, this case involves a medical provider who allegedly failed to take a variety of administrative acts that would have significantly improved Mr. Jones’s medical care. Defendant claims no reasonable difference of opinion regarding whether doctors should read their patients’ test results or whether they should send medical records or notes along with their patient to the hospital. This is not a debate over the proper course of treatment for Mr. Jones. It is a question of whether Dr. Abdellatif s failure to perform these actions constituted deliberate indifference to Mr. Jones’s admittedly serious condition — whether Dr. Abdellatif was effectively “failing to treat” Mr. Jones or “doing less than [his] training indicated was necessary.” Williams,
Defendant also argues that Plaintiffs claim should be dismissed because she has failed to show that Dr. Abdellatif s inaction or delay proximately caused Mr. Jones’s death, as the Sixth Circuit required in Napier v. Madison County,
But Napier did not, as Defendant suggests, establish a free-floating requirement of proximate cause in “deliberate indifference” cases. The Sixth Circuit has clearly cabined the Napier rulе’s scope to “cases involving only ‘minor maladies or non-obvious complaints of a serious need for medical care.’ ” Estate of Carter v. City of Detroit,
As noted above, three other prisoners at the Ernest Brooks Facility have signed affidavits regarding Mr. Jones’s apparent physical condition during his illness. These affidavits attest that during this time, Mr. Jones “appeared] to be losing control of his muscles, losing weight rapidly, [and] becoming very weak and unable to walk” (Reinstra Aff., ECF No. 154, Ex. 10); that he “looked malnourished, pale, weak and sickly” and “appeared to be getting worse” (Mazurek Aff., id.)-, and that he “stopped going to meals and appeared to stop eating his meals” (Hawkins Aff., id.), among other things. All three inmates stated their willingness to testify that Mr. Jones appeared to them to be seriously ill and in need of urgent medical assistance. (Id.) Combined with the nurses’ and doctor’s notes on Mr. Jones’s medical record discussed above, these affidavits, read in the light most favorable to Plaintiff, sufficiently raise a question of fact as to whether Mr. Jones’s medical need was sufficiently obvious to make Napier evidence unnecessary. The court therefore declines to grant summary judgment on this ground.
E. Plaintiffs Gross Negligence Claim Against Dr. Abdellatif
Defendant Abdellatif also asks the court to dismiss Plaintiffs gross negligence claim (Count III) against him, based on Plaintiffs failure to state a claim upon which relief can be granted. See Fed. R.Civ.P. 12(b)(6). Michigan law sets out various requirements for “malpractice” claims, including written, pre-suit notice, Mich. Comp. L. § 600.2912b, and the filing of an “affidavit of merit” signed by a medical health professional along with the complaint, Mich. Comp. L. § 600.2912d. Defendant argues that Plaintiffs claim, though purporting to be based on “gross negligence,” is in actuality a medical malpractice claim and so is subject to Michigan’s procedural requirements. (Def.’s Br., ECF No. 139, at 17-19.) Because Plaintiff failed to follow these requirements, Defendant argues, her claim must be denied under Rule 12(b)(6).
1. The Character of Plaintiff’s Claim
The first issue here is whether Plaintiffs claim must in fact be treated as a medical malpractice claim. To begin with, the Complaint itself is not entirely consistent about whether Count III is based on state or federal law. The claim is titled “GROSS NEGLIGENCE” and states that defendants’ “acts and/or omissions and/or conduct ... constitute gross
Michigan’s Government Tort Liability Act sets out “gross negligence” as one exception to the general immunity it grants government employees. See Mich. Comp. L. § 691.1407(2) (granting immunity so long as employee’s “conduct does not amount to gross negligence that is the proximate cause of the injury or damage”). But as noted above, Michigan statutes also set out various requirements for medical malpractice claims, left largely undefined in the statute. See Mich. Comp. L. §§ 600.2912-2912h. The parties dispute whether this claim is merely a one of gross negligence, not subject to Michigan’s additional malpractice requirements, or whether it is actually a malpractice claim, to which the additional requirements may apply (as discussed further below).
Under Erie R.R. Co. v. Tompkins,
The courts of the State have held that the substance of a claim, rather than the words in which the claim is couched, determines whether it is in fact a malpractice claim subject to the statutory requirements. See Dorris v. Detroit Osteopathic Hosp. Corp.,
The Michigan Supreme Court has enumerated two key aspects that distinguish malpractice claims. First, the alleged negligence must have “occurred within the course of a professional relationship.” Dorris,
Second, the facts of a malpractice claim “raise questions involving medical judgment,” rather than “issues that are within the common knowledge and experience of the jury.” Dorris,
The issues involved in this claim are not so completely settled that a jury can decide them based only on common knowledge and experience. Plaintiff alleges that Defendants breached their duty by, among other things, “failing to present decedent to [a] qualified medical provider,” “failing to obtain vital signs, administer prescribed medications, [and] notify qualified medical professionals of decedent’s deteriorating condition in order to obtain timely diagnosis and treatment of an otherwise treatable disease.” (First Am. Compl., ECF No. 44, at 18.) These issues — whether defendants negligently failed to present Mr. Jones to a “qualified medical provider” or to diagnose him in a timely manner, let alone whether his disease was in fact “otherwise treatable” — are clearly issues that will require expert testimony for all but the most medically proficient factfinder to decide. See also Sibley v. Borgess Med. Ctr.,
Michigan law does not, as Plaintiff implies, allow a claim sounding in medical malpractice to be brought as a “gross negligence” claim under the Government Tort Liability Act, Mich. Comp. L. § 691.1407. Instead, the courts appear to recognize that both governmental immunity and the malpractice requirements can apply to a plaintiffs claim. See Costa v. Cmty. Emergency Med. Servs., Inc.,
The Costa court did not ignore the malpractice requirements simply because plaintiff alleged gross negligence; nor did it ignore the immunity statute because the claim was one for malpractice. Instead, the court applied both laws, acknowledging that though gross negligence is not required for an ordinary malpractice claim, an allegation (and proof) of gross negligence is necessary to overcome a defendant’s government-immunity defense. Id. at 240-41. Gross negligence here was not a separate claim, but an “additional showing” that plaintiff must make in order to impose liability on such a defendant. Id. at 241.
Though Costa is not precisely on point with this ease — for instance, the parties there appear to have conceded that plaintiffs claim was one for malpractice— the decision is clearly applicable here. The court’s analysis shows that malpractice claims and “gross negligence” claims exempt from government immunity are not distinct sets of legal actions, as Jones argues. Rather, whеn a plaintiff brings an action sounding in medical malpractice — as Dorns and the other cases discussed above make clear is the case with Jones’s claim — both sets of laws apply, with potential conflicts worked out based on standard principles of statutory interpretation. Jones’s allegation of gross negligence is thus relevant to any potential claims of governmental immunity under Mich. Comp. L. § 691.1407, but it does not take this claim out of the realm of malpractice.
As such, this court finds that Plaintiffs “gross negligence” claim sounds under medical malpractice for purposes of Michigan law. This finding does not complete the analysis, however.
2. The Applicability of Michigan’s Statutory Requirements
As discussed above, Michigan’s malpractice requirements only apply to this federal action if they are substantive in nature under Erie and its progeny. If instead the requirements are procedural in nature, they do not apply in federal court.
The parties spend significant time discussing various Michigan decisions that have called these rules “substantive” or “procedural.” But the federal courts are not bound to follow a state’s own characterization of its rule in determining whether to apply a state law under Erie, particu
a. The applicable legal standard
Under Erie, the federal сourts are to apply state substantive law and federal procedural law. As it became clear that in many cases, no clean distinction could be made between substance and procedure, the Supreme Court refined this test, eventually settling on a functional inquiry based on the “twin aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration of the laws.” Hanna v. Plumer,
This analysis was considered “relatively unguided” in 1965, Hanna,
The word “conflict” works complexity out of this clear-seeming test, however. While early Supreme Court decisions indicated that a “direct collision” was necessary to trigger the Rules Enabling Act analysis, see Hanna,
The courts also find conflict where a state law limits a court’s discretion under the Federal Rules. Burlington Northern Railroad Co. v. Woods involved an Alabama statute that imposed a mandatory ten-percent penalty on an appellant-defendant who had obtained a stay on judgment and subsequently lost his appeal.
The Supreme Court has repeatedly stated that the “Federal Rules should be given their plain meaning” in determining whether they control the issue at hand. See, e.g., Walker,
•The dissenting Justices disagreed, arguing that Rule 59 directly conflicted with the New York rule. The New York law, they found, is not a substantive limit on damages; by its very text, it sets out a standard by which the courts were to review and overturn jury awards. Id. at 464-65,
The Gasperini majority and minority disagreed not just in their characterizations of the state law, but also in the more abstract issue of the extent to which the Federal Rules should be interpreted flexibly to avoid conflict. The majority, inclined to accommodate the federal and state interests if possible, emphasized the need to “interpret! ] the Federal Rules ... with sensitivity to important state interests and regulatory policies.” Id. at 427 n. 7,
This dispute arose again in the Supreme Court’s most recent opinion in this area, Shady Grove Orthopedic Associates, P.A.
Despite this multitude of positions, the Justices were cleanly divided on whether the New York statute conflicted with Rule 23. On this issue, a majority of the Court — Justices Stevens and Sotomayor both joined Justice Scalia’s opinion here— found a direct conflict between the two provisions. See id. at 1441-42. Rule 23(b) states that a “class action may be maintained” if the four elements of subsection (a) are met and if the suit falls into one of three listed categories. The majority held that this rule directly controlled the issue of when plaintiffs can bring a class action, “provid[ing] a one-size-fits-all formula for deciding the class-action question.” Id. at 1437. “Because [New York’s statute] attempts to answer the same question — i.e., it states that Shady Grove’s suit ‘may not be maintained as a class action’ ... because of the relief it seeks — it cannot apply in diversity suits” alongside Rule 23. Id. The majority refused to distinguish eligibility for class-action status from eligibility for class certification, finding this distinction “entirely artificial.” Id. at 1438. It also dismissed the argument that New York’s statute affects only a class action’s remedies, rather than the requirements for bringing the action in the first place. Id. at 1439-40. Finally, the majority addressed Gasperini’s statement, repeated by the Shady Grove dissenters, that the Federal Rules should be read to avoid conflict with important state interests and policies. While the majority agreed with the narrower principle that a court should read an ambiguous rule to avoid substantial variations between state and federal litigation, it rejected Gasperini’s broader proposition, calling the search for important state interests or policies a “standard-less” inquiry. Id. at 1442 n. 7.
The dissent objected to the majority’s “mechanical reading of Federal Rules,” id. at 1464, instead emphasizing the need to “interpret Federal Rules with awareness of, and sensitivity to, important state regulatory policies.” Id. at 1460 (Ginsburg, J., dissenting). Justice Ginsburg construed New York’s statute as a limitation on remedy — the ability to recover damages on behalf of a class — rather than a requirement for class certification. Id. at 1465-66. That is, “while phrased as responsive to the question whether certain class actions may begin, § 901(b) is unmistakably aimed at controlling how those actions must end. On that remedial issue, Rule 23 is silent.” Id. at 1467-68. According to the dissent, New York’s law and Rule 23 have entirely different objectives: New York’s limit is intended to prevent “annihilating punishment of the defendant,” whereas Rule 23 attempts to identify the situations in which a class action would be an efficient use of resources. Id. at 1464-66 (quotation marks omitted). “Rule 23 describes a method of enforcing a claim for relief, while § 901(b) defines the dimensions of the claim itself.” Id. at 1466. Therefore, Justice Ginsburg argued, there is no conflict here.
Justice Stevens went even further, however, breaking from the other eight Justices’ two-step analytical framework. For the other Justices, a state law that conflicts with a valid federal rule simply does not apply in federal court. Justice Stevens disagreed. In his view, the Rules Enabling Act, which provides that the federal rules cannot “abridge, enlarge or modify any substantive right,” requires that the federal rules must give way to a state law that is substantive in nature. Where a state law is bound up in a “framework of substantive rights or remedies,” that law is effectively substantive, even if it exerts its force through procedural levers. Id. at 1449. The federal rules cannot overrule such a law without “abridging a] substantive right” and exceeding their authority. Thus, a conflicting federal rule must give way to such a substantively procedural state regulation.
This rule, Justice Stevens cautioned, created a high bar. It would not often cause state procedural rules to override federal rules. “The mere fact that a state law is designed as a procedural rule suggests it reflects a judgment about how state courts ought to operate and not a judgment about the scope of state-created rights and remedies.” Id. at 1457. Adopting a procedure for “some policy reason” is not enough: “Although almost every rule is adopted for some reason and has some effect on the outcome of litigation, not every state rule ‘defines the dimensions of [a] claim itself.’ ” Id. (quoting Ginsburg, J., dissenting) (alteration in original). In the situation at hand, Justice Stevens found that the New York statute was not effectively substantive in nature. The law “reflects a policy judgment about which lawsuits should proceed in New York in a class form and which should not,” but this is not the same as “defmflng] who can obtain a statutory penalty or ... enlarging] New York’s remedy.” Id. Therefore, the statute was not intimately bound up in a substantive right, and Rule 23 controlled. Id. at 1459-60.
By and large, it is clear that Justice Stevеns’s opinion provides the narrowest grounds for the Court’s decision. His vote provided a majority for the portions of Justice Scalia’s opinion finding that the New York statute conflicts with Rule 23. He also agreed with the plurality’s conclusion that Rule 23 satisfied the Rules Enabling Act (though under a different analysis). But Justice Stevens provided the dissent a fifth vote for the principle that federal rules should be construed with an eye toward their effects on state policies, though he disagreed “about the degree to which the meaning of federal rules may be contorted ... to accommodate state policy goals.” Id. at 1451 n. 5 (quotation marks omitted). Therefore, his opinion is arguably the controlling one. Marks v. United States,
But Justice Stevens stands alone in finding that conflict with a federal rule does not doom a state law that effects substantive goals by procedural aims. This puts Shady Grove into the set of cases where “Marks breaks down.” United States v. Cundiff,
This conclusion fits with those of other district courts in this circuit, which have also applied Justice Stevens’s concurrence as the controlling opinion in Shady Grove. See, e.g., In re Packaged Ice Antitrust Litig.,
b. Affidavit of merit
First, we apply this framework to Michigan’s “affidavit of merit” requirement. This statute requires that “the plaintiffs attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness.” Mich. Comp. L. § 600.2912d(l). The health professional must describe the appropriate standard of 'care and provide her opinion regarding- the defendant’s failure to meet that standard. Id. Michigan originally enacted this provision in the 1980s as part of a larger set of tort reforms. Ligons v. Crittenton Hosp.,
This type of provision is not unique to Michigan. Many states have passed similar certificate-of-merit or affidavit-of-merit requirements for malpractice claims. See Benjamin Grossberg, Comment: Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice
Though the courts have considered a number of-potential conflicts between affidavits of merit and the Federal Rules, perhaps the most obvious involves the pleading requirements set out in Fed. R. Civ.P. 8 and 9. Rule 8 requires only that “[a] pleading which sets forth a claim for relief ... contain (1) a short and plain statement of the grounds upon which the court’s jurisdiction depends ... (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.” Fed.R.Civ.P. 8(a). Rule 9 provides that certain issues and claims — not including malpractice claims— are subject to special pleading standards. Fed.R.Civ.P. 9. The Supreme Court has strictly enforced these pleading standards. In Swierkiewicz v. Sorema N.A., the Court invalidated the rule, adopted by several circuits, that a plaintiff bringing a discrimination claim must plead the elements of a prima facie case.
Under Mich. Comp. L. § 600.2912d(l), a malpractice plaintiff must file, along with
This argument has some weight, and it has met with some success in the federal courts. See, e.g., Long,
Rules 8 and 9 apply to pleadings only, but Michigan’s affidavits of merit have little in common with pleadings, aside from their being filed along with the complaint. Admittedly, the inflexible timing of Michigan’s requirement does make this a more difficult question than it would be if the statute allowed an affidavit to be filed sometime after the complaint.
Shady Grove does not compel us to find otherwise. The majority there found an unavoidable conflict between Rule 23 and New York’s statute, despite the argument that the one covered class-action eligibility and the other covered class certification eligibility. Shady Grove,
Another potential conflict is with Rule 11, which provides that the court “may impose an appropriate sanction” on a party that presents frivolous arguments, unsupported factual allegations, and the like. Fed.R.Civ.P. ll(b)-(c); see Garza v. Scott & White Mem’l Hosp.,
Other cases have discussed whether certificate-of-merit statutes limit the court’s discretionary power to schedule and order discovery under Fed.R.Civ.P. 26(a). See, e.g., Stanley v. United States,
The other Federal Rules present even weaker arguments for conflict with Michigan’s statute, and in the absence of specific argument from the parties, these more speculative conflicts need not detain us further. See Liggon-Redding v. Estate of Sugarman,
Next, we must apply the framework set out in Hanna v. Plumer. As discussed above, this test looks to whether refusing to apply the state rule would “unfairly discriminate against citizens of the forum State” and lead to forum-shopping. Hanna v. Plumer,
Both parts of this test point toward applying Michigan’s statute. Though plaintiffs with strong claims may not much care whether they file suit in a forum that requires an affidavit of merit or one that does not, plaintiffs with less substantial claims would strongly prefer to file in a court that does not require an affidavit of merit. Both forums would eventually dismiss the meritless claims, but the state court applying Mich. Comp. L. § 600.2912d(l) would resolve the litigation significantly sooner — and importantly, before the defendants incur significant discovery costs. A weak plaintiff in federal court could hope for at least some nuisance-value settlement offer, but the expected value of a frivolous claim brought under an affidavit-of-merit requirement would be much lower if not zero. This acutely raises the specter of forum-shopping.
The forum-shopping analysis goes hand in hand with the “unfair discrimination” prong. A defendant facing a meritless claim could find herself either securing a quick dismissal or facing significant defense costs, based only on whether the plaintiff is a citizen of Michigan or not. This “inequitable administration of the laws” is just the type of harm that Erie sought to avoid. See Hanna, 380 U.S. at
It is undisputed that Plaintiff did not provide an affidavit of merit with her complaint. Her malpractice claim therefore fails. Because this disposes of Plaintiffs malpractice claim, the court need not address Defendant’s remaining arguments.
III. Conclusion
Plaintiff Jones has failed to put forth any evidence of a policy, practice, or custom that implicates Defendant CMS or Defendant Hutchinson in Mr. Jones’s death, and sо her claims against these defendants must be dismissed. Though Plaintiff has pointed to sufficient facts to avoid summary judgment on her § 1983 claim against Defendant Abdellatif, her state-law claim is at heart, a claim for medical malpractice, subject to the requirements that Michigan has enacted regarding such claims. Plaintiff undisputedly failed to satisfy those requirements, and so her state-law claim must be dismissed.
ORDER
For the reasons discussed above:
1. Defendants Correctional Medical Services, Inc. and Craig Hutchinson, M.D.’s Motion to Dismiss and/or Motion for Summary Judgment (ECF No. 94) is GRANTED;
2. Defendant Badawi Abdellatif, M.D.’s Motion to Dismiss and/or Motion for Summary Judgment (ECF No. 139) is GRANTED IN PART as to Plaintiff Jones’s gross negligence claim (Count III), and is otherwise DENIED;
3. All claims against Defendants Correctional Medical Services, Inc. and Craig Hutchinson, M.D. are DISMISSED WITH PREJUDICE; and
4. Plaintiffs “gross negligence” claim (Count III) is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Notes
. For the purposes of a motion for summary judgment, these facts, and any inferences drawn from them, are to be viewed in the light most favorable to the nonmoving party— here, Plaintiff. See Anderson v. Liberty Lobby, Inc.,
. Discussion here is limited to the facts relevant to the issues presented in Defendants’ motions. As the MDOC nurses’ actions are generally not at issue today, they are only discussed briefly.
. The MDOC employees named as defendants are: George Pramstaller; Nancy Martin; Kathleen Salazar, RN; Michael Wilkinson, RN; Tamerla Hamilton, RN; Renee A. Vanhouten, RN; David Vanarsdale, RN; and Sherri Castenholtz, RN. (First Am. Compi., ECF No. 44.)
. Plaintiff's First Amended Complaint (ECF No. 44) includes two counts based on 42 U.S.C. § 1983. Count 1 is directed against the individual defendants, while Count 2 pleads "supervisory liability” against CMS, Hutchinson, and two other defendants.
. Plaintiff’s response brief also attaches a series of emails wherein Penny Ryder of the American Friends Service Committee attempts to ensure that Mr. Jones is getting proper care, along with an affidavit from Ms. Ryder regarding those attempts. These exhibits, however, involve only MDOC employees; they do not mention CMS or Hutchinson, and there is no evidence that either defendant was even aware of Ms. Ryder’s emails. These exhibits thus do not support Plaintiff’s allegation that CMS’s policies, practices, or procedures contributed to Mr. Jones’s death.
. Plaintiff’s briefing also argued that summary judgment should be denied because discovery was ongoing (Pl.’s Resp., ECF No. 104, at 14), though Plaintiff failed to provide an affidavit or declaration describing its position, as called for by Fed.R.Civ.P. 56(d). See Summers v. Leis,
. As noted above, there is some dispute about whether Dr. Abdellatif actually talked to the emergency room doctor before sending Mr. Jones back to the hospital. Interpreting the factual discrepancy here is a matter for the jury, however, and for purposes of this motion, this court views the evidence in the light most favorable to the plaintiff. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
. The district court case of Beedle v. Doane, No. 05-cv-70430,
. Justice Stevens agreed with much of the majority’s analysis, though he formally dissented because he believed that the circuit court properly applied the correct standard, leaving no need to remand for the district court to repeat the exercise. Id. at 439, 441,
. Justice Stevens also acknowledged that the step of construing the federal rule was not as simple as it appeared. Because the federal rules should be construed, in some circumstances, to avoid conflict with a state's substantive policies, "the second step of the inquiry may well bleed back into the first." Id. at 1452.
. Cases applying affidavit-of-merit statutes include Liggon-Redding v. Estate of Sugarman,
Cases refusing to apply these statutes include Estate of C.A. v. Grier,
. For this reason, decisions finding that other jurisdictions’ delayed-affidavit requirements do not conflict with Rule 8 are of limited relevance here. See, e.g., Chamberlain v. Giampapa,
. Another Texas district court applied Poindexter to find a conflict between Rule 26 and a different Texas statute, this one requiring only a certificate of merit more like Michigan’s. Estate of C.A. v. Grier,