MARY TIERNEY V UNIVERSITY OF MICHIGAN REGENTS
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STATE OF MICHIGAN
COURT OF APPEALS
MARY TIERNEY,
FOR PUBLICATION
August 5, 2003
9:05 a.m.
Plaintiff-Appellant,
v
No. 239690
Court of Claims
LC No. 99-017521-CM
UNIVERSITY OF MICHIGAN REGENTS,
Defendant-Appellee.
Updated Copy
September 12, 2003
Before: Neff, P.J., and Fort Hood and Borrello, JJ.
NEFF, P.J.
Plaintiff Mary Tierney appeals by leave granted an order of the trial court denying her
motion for leave to file a fourth amended complaint alleging patient abandonment in this medical
malpractice action. We reverse and remand.
I
The issue presented in this case is whether under Michigan law a doctor's abandonment
of his patient is actionable, as either medical malpractice or as a separate cause of action for
patient abandonment. We hold that a claim of patient abandonment as a form of medical
malpractice is viable under Michigan law under the circumstances alleged in this case. The trial
court erred in denying plaintiff leave to file a fourth amended complaint encompassing her claim
of patient abandonment in the context of her medical malpractice action. We reverse and remand
for further proceedings.
II
Plaintiff had high-risk pregnancies and was a patient under the care of doctors at the
Obstetrics Clinic of the University of Michigan. She filed this action after she suffered two
successive miscarriages, the first of which she alleged resulted from negligent treatment by Dr.
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Clark Nugent and Dr. Anthony Opipari in performing a cerclage,1 and the second of which she
alleged resulted from the abandonment of her as a patient by Dr. Cosmos van de Ven after he
learned that plaintiff had filed a lawsuit against his office mate, Dr. Nugent.
At issue is the trial court's dismissal of plaintiff 's claim against Dr. van de Ven premised
on patient abandonment. Although the specific details concerning the alleged abandonment are
in dispute, the general circumstances are undisputed. After her first miscarriage, plaintiff
became pregnant again2 and began treating with Dr. van de Ven. As in her earlier pregnancy,
plaintiff was scheduled for a cerclage. After she was admitted for surgery, Dr. van de Ven
informed plaintiff that he would not be performing the procedure because plaintiff had filed a
lawsuit against Dr. Nugent. Plaintiff obtained a referral to another obstetrician, who performed
the cerclage four days later. Plaintiff subsequently suffered another miscarriage.
Plaintiff filed this action against defendant, alleging a claim of patient abandonment on
the basis of Dr. van de Ven's actions. The trial court granted defendant's motion for partial
summary disposition, dismissing plaintiff 's claim of "patient abandonment" on the ground that
Michigan law does not recognize a cause of action for patient abandonment unless it is made in
the context of a medical malpractice claim against the physician. The trial court later denied
plaintiff 's motion to file a fourth amended complaint to include a claim of patient abandonment
as a form of medical malpractice. The court reiterated its previous ruling that there is no distinct
cause of action for patient abandonment under Michigan law.
III
Generally speaking, a person who engages a physician to treat his case
impliedly engages him to attend throughout the illness or until his services are
dispensed with. Stated differently, the relation of physician and patient, once
initiated, continues until it is ended by the consent of the parties or is revoked by
the dismissal of the physician, or until the latter's services are no longer needed or
he withdraws from the case. Thus, the physician has a definite right to withdraw
from the case provided he gives the patient reasonable notice so as to enable him
to secure other medical attendance. Such a withdrawal does not constitute an
abandonment. It is but a corollary of the physician's right to withdraw from a
case upon giving proper notice, that he is under a duty to continue attendance
upon the patient until the conditions for his rightful withdrawal are complied with.
Consequently, a physician who is generally engaged to attend a patient is liable
for any damages caused by his abandoning the case without sufficient notice or
1
A cerclage is a surgical procedure in which the cervix is sutured during pregnancy to prevent it
from opening prematurely.
2
Plaintiff was forty-nine years old at the time of her first pregnancy. Both pregnancies involved
in vitro fertilization.
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adequate excuse, provided injury results from his action. [Anno: Liability of
physician who abandons case, 57 ALR2d 432, 437.]
Although the trial court acknowledged that Michigan has recognized a patient
abandonment claim, citing Fortner v Koch, 272 Mich 273; 261 NW 762 (1935), the court found
Fortner distinguishable because in that case the Supreme Court only addressed the plaintiff 's
claim of patient abandonment in the context of his claim of medical malpractice. We find this
distinction inconsequential.
In this case, plaintiff was under the care of Dr. van de Ven. The fact that he declined to
perform a procedure and terminated his treatment of plaintiff is no less grounds for legal redress
than the circumstances in Fortner, where the defendant doctor misdiagnosed the plaintiff 's
syphilis as cancer and therefore failed to pursue a course of proper treatment. Id. at 276-277.
The Fortner Court found no error in the trial court's separate instruction on the question of
patient abandonment. Id. at 279-280.3 The claim of abandonment in Fortner essentially was
premised on the lack of treatment:
"A physician is not chargeable with neglect in allowing intervals to elapse
between his visits, where the patient needs no attention during the intervals, but
he is negligent in doing so where the attention is needed * * * the frequency of the
visits is a question for the physician to determine, if he uses ordinary judgment."
[Id. at 280, quoting 48 CJ, p 1130.]
The general rule governing patient abandonment is, as stated in Fortner:
When a physician takes charge of a case and is employed to attend a
patient, the relation of physician and patient continues until ended by the mutual
consent of the parties, or revoked by dismissal of the physician, or the physician
determines that his services are no longer beneficial to the patient and then only
upon giving to the patient a reasonable time in which to procure other medical
attendance. [Id.]
The circumstances in this case fall within the general rule enunciated in Fortner.
Further, contrary to the trial court's analysis, it seems evident that plaintiff 's claim of
patient abandonment was initially framed in the context of a medical malpractice claim. As
defendant points out, in a medical malpractice action a physician's conduct is compared to the
degree of skill, care, and diligence exercised by a member of the same profession, practicing in
3
On later appeal, the Supreme Court acknowledged the defendant's duty to not abandon
treatment of the plaintiff. Fortner v Koch, 277 Mich 429; 269 NW 222 (1936).
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the same or similar locality. Becker v Meyer Rexal Drug Co, 141 Mich App 481, 485; 367
NW2d 424 (1985).
"Malpractice, in its ordinary sense, is the negligent performance by a
physician or surgeon of the duties devolved and incumbent upon him on account
of his contractual relations with his patient." [Id. at 484, quoting Delahunt v
Finton, 244 Mich 226, 230; 221 NW 168 (1928).] . . .
"'[M]edical malpractice * * * has been defined as the failure of a member
of the medical profession, employed to treat a case professionally, to fulfill the
duty to exercise that degree of skill, care and diligence exercised by members of
the same profession, practicing in the same or similar locality * * *.'" [Becker,
supra at 485, quoting Adkins v Annapolis Hosp, 116 Mich App 558, 564; 323
NW2d 482 (1982).]
"The key to a malpractice claim is whether it is alleged that the negligence occurred
within the course of a professional relationship." Becker, supra at 485; see also Bronson v
Sisters of Mercy Health Corp, 175 Mich App 647, 652-653; 438 NW2d 276 (1989) (applying the
rule in Becker in the context of negligence claims against hospitals).
In this case, as in Becker, plaintiff alleged that the negligence occurred in the course of
such a relationship. Under this standard, plaintiff 's patient abandonment claim is clearly one of
malpractice. The affidavit of merit submitted by plaintiff stated, "it was a violation of the
standard of practice of Dr. [v]an de Ven to not complete the cerclage on [December 7, 1998] or
arrange for some other qualified physician to perform the cerclage on that date and that his
refusal to do so constituted patient abandonment." Moreover, if there was any question
concerning the nature of her claim before her motion to file a fourth amended complaint, any
doubt was resolved by plaintiff 's request to expressly frame her patient abandonment claim as a
form of malpractice.
This Court reviews for an abuse of discretion a trial court's denial of a motion to amend a
complaint. Jenks v Brown, 219 Mich App 415, 420; 557 NW2d 114 (1996). Although the trial
court has discretion to allow or deny amendments,
[a]mendment is generally a matter of right rather than grace. A trial court should
freely grant leave to amend if justice so requires. MCR 2.118(A)(2). Leave to
amend should be denied only for particularized reasons, such as undue delay, bad
faith, or dilatory motive on the movant's part, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party, or
where amendment would be futile. [Id. 419-420 (citations omitted).]
The trial court erred in ruling that plaintiff 's alleged action for patient abandonment was
not viable under Michigan law. The court's denial of plaintiff 's motion to amend her complaint
on the basis that she had no viable legal claim was an abuse of discretion. We remand this case
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to allow plaintiff the opportunity to file a fourth amended complaint alleging her claim of patient
abandonment as a form of medical malpractice.
IV
Defendant argues that the denial of plaintiff 's motion to amend her complaint was proper
on the alternative ground that plaintiff failed to show that Dr. van de Ven breached the applicable
standard of care with regard to patient abandonment. Whether evidence of plaintiff 's claim
meets the legal standard for patient abandonment is a matter for the trier of fact.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Janet T. Neff
/s/ Karen M. Fort Hood
/s/ Stephen L. Borrello
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