KING v REED
Docket No. 269760
278 MICH APP 504
Submitted October 3, 2007. Decided April 8, 2008.
The Court of Appeals held:
1.
2. An affidavit of merit is presumed valid until rebutted. Thus, assuming that the affidavit of merit would be valid if the amended
3. The trial court erroneously determined that the testimony of Dr. Dykes unequivocally established that he would have performed the surgery even if he had received accurate information from Dr. Reed. The trial court impermissibly weighed the evidence in determining the testimony of Dr. Dykes to be credible. This determination is reserved for the jury. The trial court erred in granting the motion for a directed verdict.
Reversed and remanded for further proceedings.
WILDER, P.J., concurring, joined the majority with regard to parts I and II(B), and with regard to the result reached in part II(A). He wrote separately to note that the proper rule of construction applicable in interpreting
NEGLIGENCE - MEDICAL MALPRACTICE - COMPLAINTS - AFFIDAVITS OF MERIT.
Mark Granzotto, P.C. (by Mark Granzotto), and Gittleman, Paskel, Tashman, Walker, P.C. (by Clifford Paskel), for the plaintiff.
Rutledge, Manion, Rabaut, Terry & Thomas, P.C. (by Christopher L. Terry and David A. Brauer), for Donald N. Reed, Jr., M.D., and Donald N. Reed, Jr., M.D., P.C.
Before: WILDER, P.J., and BORRELLO and BECKERING, JJ.
BORRELLO, J. Plaintiff appeals as of right the trial court‘s order granting a directed verdict in favor of
I. PERTINENT FACTS AND PROCEDURAL HISTORY
For some time before his death, Kenneth King suffered from a severe case of gastroesophageal reflux disease (GERD), or what is commonly known as heartburn. After medication and other conservative treatment efforts failed, King was referred to defendant Reed, a general surgeon. In June 1998, defendant Reed performed a surgical procedure known as a Nissen fundoplication1 on King. Five months later, King reported a return of his epigastric and chest pain. In June 2000, Reed performed a second fundoplication procedure on King.
King‘s symptoms began to return again, and Reed suspected that King was suffering from Barrett‘s esophagus, a condition in which acid destroys the lining of the esophagus and the stomach replaces some of the lost esophageal lining with stomach lining. Testimony at trial indicated that Barrett‘s esophagus itself is not a form of cancer, but approximately one percent of people with Barrett‘s esophagus may develop esophageal cancer. According to plaintiff‘s expert, doctors classify Barrett‘s esophagus into three stages: low-grade,
In August 2000, Reed performed an endoscopy on King, taking biopsy samples of the esophageal lining to determine whether King had Barrett‘s esophagus. The results came back negative for Barrett‘s esophagus. Reed performed a second endoscopy, and this time a pathologist indicated that the biopsy samples were “suggestive” of Barrett‘s esophagus, but negative for high-grade dysplasia. Reed testified that although he suspected that King had Barrett‘s esophagus, he had not yet diagnosed that condition. He stated that “at the very least, it looked like Barrett‘s to me,” although he admitted that Barrett‘s esophagus had never been confirmed by a pathologist. Reed told King that he had Barrett‘s esophagus some time between January 24, 2001, and February 9, 2001.
Reed referred King to defendant John Dykes, II, a cardiothoracic surgeon, with the intention of having King undergo an esophagectomy. Dykes testified that he received a letter from Reed, along with a February 9, 2001, note written by Reed that stated, in pertinent part: “[a] biopsy is [sic] distal esophagus the end of January and it now shows Barrett‘s esophagus. I would now recommend distal esophagectomy. . . .”
Reed testified that he sent Dykes copies of King‘s pathology reports before King‘s surgery was performed. Dykes testified, however, that he did not recall whether he received pathology reports from defendant Reed. Dykes testified that he “[c]ertainly” relied on communications from defendant Reed that he had performed biopsies on King and that such biopsies revealed that King had Barrett‘s esophagus.” In choosing the proper surgical technique under the circumstances, Dykes testified that, “I make my own decisions, so [Reed] could send [a referral] to me with that recommendation [to do an Ivor-Lewis distal esophagectomy] and that doesn‘t necessarily mean that I agree with it. . . .” On the basis of the information conveyed to him, Dykes concluded that the appropriate surgical procedure for King was an Ivor-Lewis distal esophagectomy, wherein a portion of the stomach and esophagus are removed and the remaining portion of the stomach is moved higher into the chest and reconnected to the remaining portion of the esophagus. The surgery requires two incisions and two operating fields: one in the chest to remove the esophagus and one in the abdomen to move the stom-
On March 19, 2001, Reed and Dykes operated on King, performing an Ivor-Lewis distal esophagectomy. Reed testified that during surgery, he “mobilized the stomach” and “took down the adhesions,” a procedure that is normally not part of an Ivor-Lewis surgery, but was necessary because of King‘s previous surgeries. According to Reed, the operation took 10 hours, and King‘s stomach had to be entered twice during surgery because it could not be moved. Dykes testified that he sent the entire distal esophagus to a pathologist and was surprised to learn that the pathologist found no evidence of Barrett‘s esophagus.
Within 24 hours of surgery, King developed signs of an infection. King asked Dykes whether the sutures might have separated. Dykes took King back to surgery and discovered that an anastomosis, one of the surgical connections made during surgery, had broken down and “leaked things into the chest cavity, gastric juice, et cetera.” Dykes testified that “[t]he part of the stomach that had been used to perform the anastomosis, the very end of it was necrotic, dead basically,” due to lack of adequate blood supply. King developed sepsis and suffered multiple organ failures. He died on April 29, 2001. An autopsy revealed that King had no evidence of Barrett‘s esophagus.
John King, as personal representative of Kenneth King‘s estate, filed a complaint for wrongful death on February 14, 2003, alleging that defendants Reed, Dykes (and their corresponding professional corporations), and Genesys Regional Medical Center breached
After the commencement of discovery, plaintiff moved to amend the complaint to allege additional theories of liability against Reed based on facts and information that were revealed during the course of discovery. The trial court granted the motion on May 25, 2004. As a result, plaintiff was permitted to allege that defendant Reed breached the standard of care not only for his preoperative actions and inactions, but also for his role in the surgery itself and in the management of King‘s postsurgical care. A few weeks before trial was scheduled to begin, however, defendants filed a motion in limine to preclude the introduction of evidence in support of the added theories of intraoperative and postoperative negligence by defendant Reed, arguing that plaintiff should be precluded from presenting evidence at trial of such negligence because the claimed acts of malpractice were not alleged in a timely filed affidavit of merit. Plaintiff argued that the original affidavit of merit filed against defendant Reed sufficiently alleged intraoperative negligence by Reed and that he did not need to file a new affidavit of merit with the amended complaint given that the added theories of liability were based on information gleaned after the commencement of litigation through the discovery pro-
Plaintiff resolved his claims against defendant Dykes before trial. A jury trial began on March 7, 2006, limited to plaintiff‘s claims against defendant Reed for his presurgical conduct. Plaintiff presented three expert witnesses at trial who testified that an esophagectomy is only indicated where there is a confirmed diagnosis of Barrett‘s esophagus with high-grade dysplasia. Plaintiff‘s experts also testified that Reed did not have a confirmed diagnosis of Barrett‘s esophagus and had no pathologic study suggesting a degree of dysplasia. Thus, they alleged that Reed provided inaccurate information to Dykes and that an esophagectomy was not warranted under the circumstances. Plaintiff called Dykes to the stand, and he testified that he relied on Reed‘s representations regarding King‘s diagnosis of Barrett‘s esophagus. On cross-examination, Dykes was asked what he would have done had Reed not represented that King had Barrett‘s esophagus, and Dykes equivocated, but eventually stated that he probably still would have performed the surgery.
At the close of plaintiff‘s proofs, defendants moved for a directed verdict, contending that plaintiff had failed to prove by a preponderance of the evidence that had defendant Reed not breached the standard of care before surgery, the surgery would not have gone forward, because “all of the evidence before this jury says it didn‘t matter what Reed did, Dykes was gonna [sic] do this surgery regardless.” The trial court granted defendants’ motion for a direct verdict, stating, “Dykes clearly indicates that, even if there had been no diagnosis of Barrett‘s esophagus, he would have performed this surgery.” This appeal followed.
A. NECESSITY OF AFFIDAVIT OF MERIT WITH AMENDED COMPLAINT
The first issue raised in this appeal is whether plaintiff was required to file another affidavit of merit with the amended complaint. Defendant Reed contends that because plaintiff‘s complaint, as amended, contained theories of intraoperative and postoperative negligence against Reed that were not referenced in the original affidavit of merit, the trial court correctly held that such theories were barred as a matter of law. Plaintiff argues that he did not need to file an additional affidavit of merit with the amended complaint because the affidavit of merit filed with the original complaint could serve to certify amended claims, and the affidavit of merit did not need to allege acts that were discovered after the commencement of litigation during the discovery process. The trial court‘s rationale for precluding plaintiff from presenting evidence at trial of Reed‘s intraoperative and postoperative negligence was that the affidavit of merit against defendant Reed that was attached to the original complaint did not include any statements regarding any intraoperative or postoperative negligence on the part of defendant Reed; therefore, the trial court reasoned, plaintiff‘s new claims could not be considered because the period of limitations for filing a claim regarding those theories had already expired, and an additional affidavit of merit would therefore be untimely. The trial court held that
Resolution of this issue involves interpretation of
1. LANGUAGE OF THE STATUTE
When addressing a question of statutory construction, this Court must begin by examining the language of the statute. Macomb Co Prosecutor v Murphy, 464 Mich 149, 158; 627 NW2d 247 (2001). The primary rule governing the interpretation of statutes is to discern and give effect to the Legislature‘s intent through reasonable construction in consideration of the purpose of the statute and the object sought to be accomplished. Frankenmuth Mut Ins Co v Marlette Homes, Inc, 456 Mich 511, 515; 573 NW2d 611 (1998). If a statute is clear, it must be enforced as plainly written. People u Spann, 250 Mich App 527, 530; 655 NW2d 251 (2002). Nothing will be read into a clear statute that is not within the manifest intention of the Legislature, as derived from the language of the statute itself, Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 63; 642 NW2d 663 (2002), and courts may not speculate about the probable intent of the Legislature beyond the language expressed in the statute, Cherry Growers, Inc v Agricultural Marketing & Bargaining Bd, 240 Mich App 153, 173; 610 NW2d 613 (2000). See also Twentieth Century Fox Home Entertainment, Inc v Dep‘t of Treasury, 270 Mich App 539, 545; 716 NW2d 598 (2006).
(1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff‘s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff‘s attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff‘s attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional‘s opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
2. LEGISLATIVE PURPOSE
Our Supreme Court has stated that in determining legislative intent, statutory language must be given a reasonable construction that best accomplishes the purpose of the statute. Frankenmuth Mut, supra at 515. In reliance on the directives from our Supreme Court regarding issues of statutory construction, this Court has recognized that the Legislature‘s purpose in enacting
Furthermore, we find it significant that the affidavit of merit must be submitted with the complaint before the commencement of discovery. Our Supreme Court has recognized that the fact that a plaintiff‘s notice of intent is filed before the commencement of discovery is relevant to determining whether the notice of intent is sufficient:
[T]he notice of intent is provided at the earliest stage of a medical malpractice proceeding. Indeed, the notice must be provided before the action can even be commenced. At the notice stage, discovery as contemplated in our court rules, MCR 2.300 et seq., has not been commenced, and it is likely that the claimant has not yet been provided access to the records of the professional or facility named in the notice. It is therefore reasonably anticipatable that plaintiff‘s averments as to the applicable standard may prove to be “inaccurate” or erroneous following formal discovery; moreover, it is probable that the alleged standard of care will be disputed by the defendants. In light of these circumstances, the claimant is not required to craft her notice with omniscience. However, what is required is that the claimant make a good-faith effort to aver the specific standard of care that she is claiming to be applicable to each particular professional or facility that is named in the notice. [Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 691-692; 684 NW2d 711 (2004) (emphasis in original).]
Although the above-quoted language addresses the notice-of-intent requirements of
The Supreme Court has also noted the significance of the fact that the affidavit of merit is filed before discovery in determining matters of an affiant‘s qualifications:
Under Michigan‘s statutory medical malpractice procedure, plaintiff must obtain a medical expert at two different stages of litigation—at the time the complaint is filed and at the time of trial. With regard to the first stage, under
MCL 600.2912d(1) , a plaintiff is required to file with the complaint an affidavit of merit signed by an expert who the plaintiff‘s attorney reasonably believes meets the requirements ofMCL 600.2169 . With regard to the second stage, the trial,MCL 600.2169(1) states that “a personshall not give expert testimony . . . unless the person” meets enumerated qualifications (emphasis added). . . . The Legislature‘s rationale for this disparity is, without doubt, traceable to the fact that until a civil action is underway, no discovery is available. See MCR 2.302(A)(1). Thus, the Legislature apparently chose to recognize that at the first stage, in which the lawsuit is about to be filed, the plaintiff‘s attorney only has available publicly accessible resources to determine the defendant‘s board certifications and specialization. At this stage, the plaintiff‘s attorney need only have a reasonable belief that the expert satisfies the requirements of
MCL 600.2169 . SeeMCL 600.2912d(1) . [Grossman v Brown, 470 Mich 593, 598-599; 685 NW2d 198 (2004) (emphasis in original).]
The Grossman Court was considering the requirement that the plaintiff‘s attorney must “reasonably believe” that the affiant would be qualified under
We find further support for our holding in this Court‘s opinion in McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 492-496; 711 NW2d 795 (2006). In McElhaney, a physician certified the affidavit of merit; however “[a]s discovery progressed, it became clear that plaintiff‘s claim of medical negligence focused primarily on the actions of defendant‘s nurse midwife.” Id. at 495. This Court held that “plaintiff‘s attorney‘s belief that [the physician] would fulfill the requirements of [
Our examination of the language of
An affidavit of merit is presumed valid until rebutted. Kirkaldy v Rim, 478 Mich 581, 586; 734 NW2d 201 (2007). Thus, assuming that the affidavit of merit would be valid if the amended theories of liability were
B. DIRECTED VERDICT
“When reviewing a trial court‘s decision on a motion for a directed verdict, the standard of review is de novo and the reviewing court must consider the evidence in the light most favorable to the nonmoving party.” Zsigo, supra at 220-221.
The trial court granted defendants’ motion for a directed verdict because it determined, on the basis of the testimony of Dr. Dykes, that “even if there had been no diagnosis of Barrett‘s esophagus, [Dr. Dykes] would have performed this surgery. . . .” Plaintiff contends that because Dykes equivocated regarding whether he would have performed King‘s surgery if he had received accurate information from defendant Reed regarding whether King had Barrett‘s esophagus, the trial court erred in holding that Dykes unequivocally testified that he would have performed the procedure even with accurate information from defendant Reed. Plaintiff argues that a question of fact arises from Dykes‘s testimony because, while Dykes testified that in looking
Reed argues that the trial court properly granted his motion for a directed verdict because plaintiff failed to demonstrate sufficient facts that would support a reasonable inference of a logical sequence of cause and effect between defendant Reed‘s alleged preoperative negligence and King‘s death. Reed asserts that plaintiff offered no evidence that would support a reasonable inference that it is more probable than not that Dykes would not have performed the procedure, regardless of the existence of Barrett‘s esophagus, and regardless of any input or recommendations from defendant Reed.
Our review of the record leads us to conclude that the trial court erroneously determined that Dykes‘s testimony unequivocally established that he would have performed the Ivor-Lewis surgical procedure on King even if defendant Reed had determined that King did not have Barrett‘s esophagus. Dykes testified that he personally decided to do the Ivor-Lewis procedure, but he also testified that he relied on defendant Reed‘s statements that he had performed biopsies confirming Barrett‘s esophagus, as well as notes from defendant Reed expressly stating that a biopsy had confirmed that King had Barrett‘s esophagus. Despite the fact that Dykes said that he stood behind his decision to perform
When considering a motion for a directed verdict, it is “the factfinder‘s responsibility to determine the credibility and weight of trial testimony.” Zeeland Farm Services, Inc v JBL Enterprises, Inc, 219 Mich App 190, 195; 555 NW2d 733 (1996). By granting defendant Reed‘s motion for directed a verdict on the theory that plaintiff had not shown that defendant Reed‘s communications with Dykes had caused Dykes to perform the Ivor-Lewis procedure, the trial court impermissibly weighed the evidence and found Dykes‘s testimony to be credible, which is a determination that is properly reserved for the jury. Accordingly, when considering the evidence in the light most favorable to plaintiff, Zsigo, supra, the trial court committed error requiring reversal and impermissibly weighed the evidence when it found that “Dykes clearly indicate[d] that, even if there had been no diagnosis of Barrett‘s esophagus, he would have performed this surgery.” Moreover, in light of testimony from plaintiff‘s expert that the Ivor-Lewis procedure should not be used to treat King‘s actual
III. CONCLUSION
For the reasons articulated above, we conclude that the trial court erred by holding that plaintiff could not pursue the claims alleged in his first amended complaint and by directing a verdict for defendant Reed and his professional corporation.
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
BECKERING, J. concurred.
WILDER, P.J. (concurring). I join in the majority opinion in parts I and II(B), and agree with the result reached by the majority in part II(A). I write separately with regard to the result reached in part II(A) in order to state a differing view on the rule of statutory construction applicable to our interpretation of
As noted by the majority, in determining whether plaintiff was required to file another (or amended)
(1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff‘s attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff‘s attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff‘s attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:
(a) The applicable standard of practice or care.
(b) The health professional‘s opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
The majority concludes that in determining the Legislature‘s intent in
Here, the statutory language unambiguously states that an affidavit of merit must be filed with “the complaint.” Because the statute does not refer to amendments to the complaint, I agree with the majority that plaintiff is not required to file an additional affidavit of merit at the time of the filing of an amended complaint.