Montcalm Circuit Court LC Nos. 06-007819-NH, 2006-007819-NH & 2006-007819-NH.
The opinion of the court was delivered by: Cavanagh, P. J.
Before: CAVANAGH, P. J., and FITZGERALD and SHAPIRO, JJ.
In Docket Nos. 284155 and 285870, defendants Michael Stoiko, M.D., Spectrum Health Hospitals, Inc. d/b/a Butterworth Hospital, and Spectrum Health Hospitals, Inc. d/b/a DeVos Children's Hospital (the Spectrum defendants), appeal by leave granted an order granting plaintiff, Robin Decker, as next friend of Eric Decker, leave to amend her medical malpractice complaint, and an order denying the Spectrum defendants' motion for partial summary disposition with regard to those claims added by amendment. We affirm.
In Docket No. 290633, the Spectrum defendants appeal by leave granted an order denying their motion for summary disposition which challenged the sufficiency of plaintiff's notice of intent (NOI), and the expert support for plaintiff's nursing malpractice claims. Also in Docket No. 290633, defendants Michael Rochowiak, D.O., Alberto Betancourt, M.D., Center for Women's Healthcare, and Carson City Hospital (the Carson City defendants), challenge on cross-appeal an order denying their motion for joinder and concurrence in the Spectrum defendants' motion for summary disposition with regard to the sufficiency of plaintiff's NOI. We affirm.
These consolidated interlocutory appeals arise out of defendants' care and treatment of Eric Decker (Eric), who was born on July 17, 1996, at defendant Carson City Hospital. Plaintiff has averred that Eric was born by vacuum delivery necessitated by fetal distress. He was not seen by a pediatrician. Although his bilirubin was elevated and he started becoming reluctant to feed, Eric was discharged the next day, on July 18, 1996.
On July 19, 1996, Eric was taken back to Carson City Hospital because he was lethargic and reluctant to feed. After being diagnosed with persistent hypoglycemia and jaundice caused by an elevated bilirubin, he was airlifted to DeVos Children's Hospital on Spectrum Health's Butterworth campus for medical management in the pediatric intensive care unit (PICU). Upon arrival, it was determined that Eric was profoundly hypoglycemic with a critically low glucose level of 4, where an acceptable range appears to be 60 to 100 mg/dl. A subclavian venous catheter was inserted to infuse glucose solutions. Although his blood glucose level increased somewhat for a short period of time, it remained dangerously low. Seizure activity was noted.
A brain CT scan performed on July 20, 1996, revealed an extensive hypoxic ischemic brain injury and hemorrhages. Eric's condition continued to deteriorate, culminating in a cardiac arrest. During the resuscitation efforts, it was determined that the subclavian venous catheter was not in the vein. Thus, the fluid that had been infused through it did not go into Eric's bloodstream, but his chest cavity. The large amount of fluid in Eric's chest cavity interfered with the ability of Eric's heart to beat-a condition known as cardiac tamponade-which led to his cardio-pulmonary arrest. After a functioning femoral vein catheter was placed, Eric stabilized. He remained hospitalized through September 2, 1996. Eric has been diagnosed with cerebral palsy from an early anoxic (lack of oxygen) brain injury. He is developmentally delayed, suffers from sensory deficits, and is legally blind.
On September 23, 2004, plaintiff served her NOI on defendants as required by MCL 600.2912b, and on June 5, 2006, she filed her medical malpractice case with supporting affidavits of merit. On January 9, 2008, plaintiff moved for leave to file an amended complaint that alleged 17 specific ways in which the Spectrum defendants breached the applicable standards of care. Plaintiff argued that the amendment was proper because (1) discovery remained open and experts had not been deposed, (2) the amendment merely clarified allegations and issues which was possible after particular information was learned through the discovery process, (3) the clarifications "ultimately relate back to the underlying lynch pin of this entire case which is that they did not appropriately monitor and maintain this baby's glucose level," and (4) defendants would not be prejudiced by the amendment.
The Spectrum defendants opposed plaintiff's motion to amend, arguing that (1) plaintiff had not shown why "justice" required that leave be granted under MCR 2.118(A)(2) in light of the inexcusable delay in bringing such claims that were discernable from inception; (2) plaintiff failed to raise these new theories in her NOI as required by MCL 600.2912b, thus such claims were barred by the statute of limitations; and (3) defendants would be unduly prejudiced if plaintiff were allowed to amend her complaint to add these new allegations. Oral arguments were heard on January 31, 2008. The trial court agreed with plaintiff's arguments, and granted plaintiff's motion for leave to file an amended complaint. Thereafter, plaintiff served on defendants a supplemental NOI containing the additional allegations. A written order granting plaintiff's motion was entered on February 19, 2008, and plaintiff filed her amended complaint on February 28, 2008. On March 11, 2008, under Docket No. 284155, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's February 19, 2008, order.
On April 8, 2008, the Spectrum defendants moved for partial summary disposition, seeking dismissal of the 17 allegations raised in plaintiff's amended complaint. Defendants essentially reiterated the arguments they made in opposition to plaintiff's motion to amend, including that the specific allegations were not identified in the NOI and were barred from being added to this lawsuit by the expiration of the statute of limitations. Defendants also contested the fact that plaintiff did not wait 182 days after serving the supplemental NOI before filing the amended complaint. The trial court heard oral arguments on April 24, 2008, and agreed with plaintiff's arguments. An order denying defendants' motion was entered on May 19, 2008. On June 9, 2008, under Docket No. 285870, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's May 19, 2008, order.
On September 8, 2008, this Court granted the Spectrum defendants' applications for leave to appeal in Docket Nos. 284155 and 285870, and the cases were administratively consolidated. See Decker v Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 284155), amended September 18, 2008; Decker v Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 285870), amended September 18, 2008.
On November 26, 2008, while Docket Nos. 284155 and 285870 were pending on appeal, the Spectrum defendants again for moved for summary disposition in the trial court. They moved for summary dismissal as to all of plaintiff's claims, arguing that plaintiff's initial NOI failed to contain a statement of proximate cause detailing the manner in which defendants' alleged negligence resulted in Eric's injuries as required by MCL 600.2912b(4)(e). The Spectrum defendants also moved for summary disposition as to plaintiff's nursing malpractice claims. They asserted that (1) plaintiff's only expert witness could not testify because she improperly relied upon a national, rather than local, standard of care with regard to these claims, and (2) plaintiff's expert was not qualified to testify in support of plaintiff's negligent charting claims. The Carson City defendants joined the motion for summary disposition, challenging the sufficiency of the statement of causation in plaintiff's NOI. Plaintiff opposed the motions.
On December 19, 2008, oral arguments were held. The trial court rejected defendants' claims that plaintiff's NOI was deficient, holding that "reading it in its entirety it describes the manner in which the various breaches of standard of care were the proximate cause of the injuries and I'll also adopt by reference the arguments of [plaintiff's counsel] and his brief in connection with that." The court also rejected the Spectrum defendants' challenge to plaintiff's nursing malpractice claims, holding that the expert seemed to testify that the national standard of care and the local standard of care were the same and, with regard to the charting claim, "the standard of care determines what the nurses should do, not whether the hospital form provides for it." After noting that it was adopting the arguments and brief of plaintiff, the trial court denied defendants' motions. On February 9, 2009, an order denying the Spectrum defendants' motion for summary disposition was entered.
On March 2, 2009, under Docket No. 290633, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's February 9, 2009, order. On May 5, 2009, this Court granted the Spectrum defendants' application for leave to appeal, and administratively consolidated the case with Docket Nos. 284155 and 285870. See Decker v Rochowiak, unpublished order of the Court of Appeals, entered May 5, 2009 (Docket No. 290633). On May 26, 2009, the Carson City defendants filed with this Court their claim of cross appeal. On June 4, 2009, the trial court entered an order denying the Carson City defendants' motion for joinder and concurrence in the Spectrum defendants' motion for summary disposition with regard to the sufficiency of plaintiff's NOI.
I. DOCKET NOS. 284155 AND 285870
The Spectrum defendants argue that the trial court erred in denying their motion for partial summary disposition as to 17 "new" allegations raised in plaintiff's first amended complaint. More specifically, defendants argue that these allegations should have been dismissed because they were not raised in plaintiff's NOI and are barred by the statute of limitations. We disagree.
We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Likewise, issues of court rule and statutory interpretation, as well as whether a statute of limitations bars a claim, are reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 570-571; 703 NW2d 115 (2005).
A medical malpractice action cannot be filed until a plaintiff complies with MCL 600.2912b, which provides:
(1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under ...