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Jones v. Botsford Continuing Care Corp.

Court of Appeals of Michigan

April 7, 2015

MILDRED JONES, Personal Representative of the ESTATE OF AMOS JONES, Plaintiff-Appellant/Cross-Appellee,

Oakland Circuit Court. LC No. 2012-130023-NH.




Before: DONOFRIO, P.J., and FORT HOOD and SHAPIRO, JJ. DONOFRIO, P.J. (concurring in part and dissenting in part).


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[310 Mich.App. 195] Karen Fort Hood, J.

Plaintiff, Mildred Jones, as the personal representative 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.


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 [310 Mich.App. 196] 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

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to the hospital nursing progress notes, during his stay and while in an agitated state, Jones pulled out the PEG tube. The PEG tube was reinserted approximately eight hours later. Plaintiff's complaint alleged that the PEG tube was improperly reinserted and that as a result, gastric contents and nutritional material were released outside Jones's stomach and into his abdominal space, causing a massive infection that killed him.

Before filing suit, in accordance with MCL 600.2912b(1), plaintiff mailed a notice of her intent to file claim to the individuals and entities later named as defendants. The notice satisfied the requirements of MCL 600.2912b(4).

Pursuant to MCL 600.2912b(7), each recipient of the notice was required to " furnish to the claimant . . . a written response . . . ." The statute requires that a potential defendant's written response contain a statement regarding four items, including " [t]he factual basis for the defense to the claim." MCL 600.2912b(7)(a). However, defendants each failed to send a written response, thus violating this statutory mandate.

When plaintiff filed the complaint initiating this lawsuit, her attorney attached two affidavits of merit as required by MCL 600.2912d. One of the affidavits attested to physician malpractice and was signed by Dr. Gregory Compton, who in his affidavit stated that at the relevant time he " was a licensed and practicing [310 Mich.App. 197] INTERNAL MEDICINE and GERIATRIC MEDICINE Doctor . . . ." The other affidavit attested to nursing malpractice and was signed by Amy Ostrolenk, who averred that she was an " R.N." and " was . . . licensed and practicing nursing."

As required by MCL 600.2912e, defendants filed affidavits of meritorious defense. Two affidavits were filed in response to the claim of physician malpractice. The one submitted by BCC (which plaintiff alleged was liable for any negligence by Dr. Selznick under an agency theory) was signed by Dr. Alan Neiberg, who averred that during the relevant period he was " board certified in the specialty of internal medicine, and . . . devoted a majority of [his] professional time to the active clinical practice of my profession of internal medicine." The affidavit submitted on behalf of Dr. Selznick personally was signed by Dr. Selznick himself and averred that he is " certified by the American Board of Family Practice and ha[s] a Certificate of Added Qualification in Geriatrics."

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."

MCL 600.2912d(1) and MCL 600.2912e(1) respectively require that the affidavits of merit and meritorious defense be " signed by a health professional who the [party]'s attorney reasonably believes meets the requirements for an expert witness under section 2169." Accordingly, per the requirements for an expert witness under MCL 600.2169(1)(a), each party's attorney must have had a reasonable belief that their respective affiant " specialize[d] at the time of the [310 Mich.App. 198] 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." [1] MCL 600.2169(1)(a),

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which refers to specialists, does not apply to nurses, see Cox v Flint Bd of Hosp Managers, 467 Mich. 1, 18, 22; 651 N.W.2d 356 (2002) (addressing MCL 600.2912a, which sets forth the standard of care in medical malpractice cases), but MCL 600.2169(1)(b) does, because it applies to all health professionals. This provision requires that during the year preceding the incident, the testimonial expert have devoted a majority of his or her professional time to " [t]he active clinical practice of the same health profession in which the [defendant] . . . is licensed . . . ." MCL 600.2169(1)(b)( i ).

Defendants moved for summary disposition under MCR 2.116(C)(10), asserting that the affidavits filed by plaintiff's counsel did not satisfy MCL 600.2912d because the affiants did not meet the requirements of MCL 600.2169(1)(a) and (b), respectively, and that plaintiff's counsel could not have had a reasonable belief that they did. BCC asserted that plaintiff's affidavit of merit alleging nursing malpractice should have been signed by a licensed practical nurse (LPN) and that plaintiff's counsel could not have reasonably believed that a registered nurse (RN) could offer standard of care testimony. Both BCC and Dr. Selznick asserted that plaintiff's affidavit of merit alleging physician malpractice should have been signed by a family practitioner and that plaintiff's counsel could not have had a reasonable belief that Dr. Compton had the proper qualifications.

[310 Mich.App. 199] The trial court ruled that the affiants did not satisfy the requirements of MCL 600.2169(1) and, on this basis, dismissed the case. The court did not, however, address plaintiff's argument that her counsel had a reasonable belief that the affiants met the testimonial requirements.[2] Plaintiff appeals from that ruling and BCC cross-appeals on the grounds that the dismissal should have been with prejudice.[3]


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 N.W.2d 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 N.W.2d 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 N.W.2d 271 (2011).


Whether an expert may provide standard of care testimony at trial is governed by MCL 600.2169. However, whether an affidavit of merit signed by an expert [310 Mich.App. 200] is adequate is governed by MCL 600.2912d. This provision requires that plaintiff's counsel " reasonably believes" that the affiant " meets the requirements" of MCL 600.2169, not that the affiant actually

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meet those requirements for purposes of trial testimony. " 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)." Grossman v Brown, 470 Mich. 593, 599; 685 N.W.2d 198 (2004).

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 MCL 600.2169(1)." Id. (emphasis added; alteration in original). By contrast, the issue for purposes of MCL 600.2912d is not whether the expert signing the affidavit of merit may ultimately testify at trial. The controlling question under MCL 600.2912d is whether plaintiff's counsel had a reasonable belief that the affiant would qualify. The fact that the Legislature used the " reasonably believes" language demonstrates that there will be cases in which counsel had such a reasonable belief even though the expert is ultimately shown not to meet the criteria of MCL 600.2169(1).

In Brown v Hayes, 477 Mich. 966; 724 N.W.2d 470 (2006), the Supreme Court reiterated this point. It concluded that even when the expert in question did not qualify to testify under MCL 600.2169, the affidavit should not be stricken when counsel had a reasonable belief that the expert did qualify. Id. Indeed, in Hayes, the attorney had not made an error of fact (as in Grossman ), but had incorrectly, but reasonably, construed the statutory requirements. Id.

[310 Mich.App. 201] This Court has similarly noted 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 N.W.2d 795 (2006), we held that the plaintiff's experts did not qualify, under MCL 600.2169, to testify regarding the standard of care. However, regarding the propriety of the affidavit of merit signed by one of those experts as to alleged malpractice by a nurse midwife, we concluded that " plaintiff's attorney's belief that an obstetrician/gynecologist met the requirements for an expert witness under § 2169 was reasonable." Id. at 495-496. Therefore, the issue is not whether the attorney's judgment proves to be incorrect, but rather whether the attorney's belief, though erroneous in hindsight, was reasonable at the time.

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 MCL 600.2912d. We will address separately the nursing affidavit of merit and the physician affidavit of merit. Plaintiff's claims against BCC are based on the actions of two separate agents, i.e., the relevant nurse(s) and its staff physician, Dr. Selznick. Plaintiff's claims against Dr. Selznick and his practice are based solely on his individual actions.


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 [310 Mich.App. 202] 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

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is not identified as an LPN nor by name.

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 standard [310 Mich.App. 203] 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 have identified the caregiver who reinserted the PEG tube and his or her qualifications. MCL 600.2912b(7)(a). Indeed, the reasonableness of the belief that an RN could properly sign the affidavit of merit in this case is demonstrated by the fact that BCC's affidavit of meritorious defense was signed by an RN, not an LPN. Given that BCC's attorneys, who (unlike plaintiff's counsel) had full access to hospital staffing records and the relevant caregivers, concluded that an RN was the proper affiant, it would certainly seem that the same judgment, when made earlier by plaintiff's counsel with far less information, was a reasonable one.

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 ...

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