DONALD GRIMMER, as Personal Representative of the Estate of MELODY GRIMMER, Deceased, Plaintiff-Appellant,
DANIEL T. LEE, M.D., STEPHEN J. MATTICHAK, M.D., BAY REGIONAL MEDICAL CENTER, BAY REGIONAL HEART AND VASCULAR, and MICHIGAN CARDIOVASCULAR INSTITUTE, Jointly and Severally, Defendant-Appellees, and ANTONIO VASQUEZ, M.D., ANTONIO VASQUEZ, M.D., P.C., and BAY CITY VASCULAR, Defendants.
Bay Circuit Court LC No. 13-003094-NH
Before: Shapiro, P.J., and Gleicher and Ronayne Krause, JJ.
Plaintiff Donald Grimmer brought a medical malpractice action against a handful of defendants including two cardiologists (defendants Daniel T. Lee, M.D. and Stephen J. Mattichak, M.D.) and a vascular surgeon (defendant Antonio Vasquez, M.D.). The cardiology defendants and their principals sought summary disposition based on Grimmer's failure to file an affidavit of merit signed by a cardiologist. Before hearing that motion, the circuit court dismissed Dr. Vasquez and his professional corporation without prejudice for want of service.
Grimmer's complaint alleged that two defendants, Bay Regional Medical Center (BRMC) and Bay Regional Heart and Vascular (BRHV), bore vicarious liability for Dr. Vasquez's negligence. Neither defendant filed a motion seeking summary disposition of the vicarious liability claims. Nevertheless, the circuit court dismissed the vicarious liability allegations with prejudice. This was error, and we reverse and remand for further proceedings.
I. BACKGROUND FACTS AND PROCEEDINGS
Melody Grimmer died one day after undergoing a cardiac catheterization performed by Dr. Mattichak. An autopsy concluded that a retroperitoneal hematoma containing 3, 000 grams of unclotted blood triggered a fatal cardiopulmonary arrest. According to the complaint, defendant Vasquez had examined Melody after the catheterization, recognized the presence of the hematoma, but declined to operate. The complaint and an accompanying affidavit of merit charge that Dr. Vasquez's failure to intercede constitutes professional negligence.
The complaint also sets forth malpractice claims against Dr. Mattichak and another cardiologist, Dr. Daniel Lee. However, Grimmer never filed an affidavit of merit attesting to the cardiologists' negligence. They filed a summary disposition motion on that ground, invoking MCL 600.2912d(1) and MCL 600.2169(1)(a). Counsel for the BRMC and the professional corporations employing Drs. Lee and Mattichak joined in the motion. Notably, none of the summary disposition motions or accompanying briefs mentioned Dr. Vasquez, and none sought summary disposition regarding the complaint's averments of Dr. Vasquez's direct liability or the vicarious liability flowing from his conduct.
After the cardiologists' summary disposition motion was filed but before it was heard, the circuit court entered an order dismissing Dr. Vasquez and his professional corporation without prejudice, noting that these two defendants had not been served with process.
During the summary disposition hearing, the circuit court read aloud an e-mail written by Grimmer's counsel and provided by the attorney for the cardiologists, BRMC and BRHV. The email stated: "I am writing to advise you that I will not be appearing at [the] motion today. We will not oppose your motion for summary disposition as to the cardiologists but we cannot stipulate." Defendants' counsel then reminded the court that Dr. Vasquez and his professional corporation had been dismissed for failure to serve, continuing:
In view of that, your Honor, I have prepared an order that dismisses Dr. Lee, Dr. Mattichak, and [BRMC], with prejudice, because the only claims against [BRMC] is [sic] vicarious for the acts of Dr. Lee and Dr. Mattichak, as well as Dr. Vasquez. If Dr. Vasquez is not a party to this lawsuit, we can't be vicariously liable for him. And, therefore, the order I have prepared would be a permanent dismissal for Dr. Lee, Dr. Mattichak, and [BRMC].
The court entered an order providing in relevant part:
It is hereby ordered that Defendants [BRMC]; [BRHV]; Dr. Daniel Lee and Dr. Stephen Mattichak's Motion for Summary Disposition is GRANTED and all claims against Dr. Daniel Lee and Dr. Stephen Mattichak and any claims of vicarious liability against [BRHV] and [BRMC] related to Dr. Daniel Lee, Dr. Stephen Mattichak and Dr. Antonio Vasquez, M.D., are dismissed with prejudice.
Grimmer now appeals as of right from the portion of this order granting summary disposition of Grimmer's vicarious liability claims against BRMC and ...