NANCY GILLESPIE V LANSING OB GYN ASSOCIATES
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STATE OF MICHIGAN
COURT OF APPEALS
NANCY GILLESPIE and GARY GILLESPIE,
UNPUBLISHED
February 26, 2004
Plaintiffs-Appellees,
v
No. 244194
Ingham Circuit Court
LC No. 01-093592-NH
LANSING OB-GYN ASSOCIATES,
Defendant-Appellant.
Before: Schuette, P.J., and Whitbeck, C.J.and Owens, J.
PER CURIAM.
Defendant appeals by leave granted the trial court’s order denying its motion for
summary disposition. We reverse and remand for entry of summary disposition in favor of
defendant. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
I. FACTS
On April 1, 1998 plaintiff Nancy Gillespie presented to defendant for evaluation of a
discharge from and possible lump in her left breast. Bonnie McClure1, a nurse practitioner,
examined Nancy Gillespie and scheduled a mammogram. Nancy Gillespie was not examined by
a physician on this occasion. The mammogram was interpreted as negative. On November 24,
1998 Nancy Gillespie returned to defendant and was examined by James Barton, II, M.D. A
repeat mammogram was suspicious for a malignancy in the left breast. Nancy Gillespie
underwent a mastectomy and was found to have breast cancer.
On May 7, 2001 plaintiffs filed a complaint alleging medical malpractice against
defendant and Dr. Barton. The complaint was accompanied by an affidavit of merit from Dr.
David, a Massachusetts-based board-certified obstetrician/gynecologist, who opined that
defendant and Barton breached the applicable standard of care by failing to examine Nancy
Gillespie after the nurse practitioner did so and by failing to re-check her in four to six weeks.
The complaint and affidavit of merit referred to treatment rendered on April 1, 1998 only;
1
McClure is mistakenly referred to in plaintiff’s complaint as “Bonnie McChurch.”
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therefore, Dr. Barton filed an affidavit asserting his non-involvement as authorized by MCL
600.2912e. The trial court entered a stipulated order dismissing Barton, only, with prejudice.
Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), arguing that
plaintiffs’ affidavit of merit was insufficient because it was not signed by a nurse practitioner,
and therefore, the filing of plaintiffs’ complaint did not toll the limitations period. The trial court
denied defendant’s motion, finding that plaintiffs filed the affidavit in good faith and that the
affidavit complied with statutory requirements.
II. STANDARD OF REVIEW
We review a trial court’s decision on a motion for summary disposition de novo. Auto
Club Group Ins Co v Burchell, 249 Mich App 468, 479; 642 NW2d 406 (2001).
III. ANALYSIS
The statute of limitations for a medical malpractice action is two years. MCL
600.5805(6). The two-year limitations period is subject to a six-month discovery rule exception.
Under this exception, a claim may be commenced after the expiration of the two-year period if it
is commenced within six months after the plaintiff discovered or should have discovered the
claim. MCL 600.5838a(2). In a medical malpractice action, the plaintiff bears the burden of
proving: (1) the applicable standard of care; (2) breach of that standard by the defendant; (3) an
injury; and (4) proximate causation between the alleged breach and the injury. Wischmeyer v
Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995). An institution may be vicariously liable for
the acts of its agents. If an institution is the only named defendant, the issue is whether the
institution’s agents violated the standard of care applicable to them. Cox v Flint Bd of Hosp
Mgrs, 467 Mich 1, 11, 14-15; 651 NW2d 356 (2002).
The applicable standard of care for nurses is the skill and care ordinarily possessed and
exercised by practitioners in the same or similar localities. Expert testimony is necessary to
establish the standard of care because the ordinary layperson is not equipped to judge the skill
and competence of the service rendered and to determine whether it meets the applicable
standard of care. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 492; 668 NW2d 402
(2003).
A medical malpractice plaintiff must file with the complaint an affidavit of merit signed
by a health professional who meets or who the plaintiff’s attorney reasonably believes meets the
requirements for an expert witness under MCL 600.2169(1). The affidavit must contain a
statement of the applicable standard of practice or care, the health professional’s opinion that the
applicable standard of practice or care was breached by the health professional or facility, the
actions which should have been taken or omitted by the health professional or facility in order to
have complied with the applicable standard of practice or care, and the manner in which the
breach of the standard of practice or care was the proximate cause of the alleged injury. MCL
600.2912d(1). MCL 600.2169(1) provides that a person may not give expert testimony on the
appropriate standard of practice or care unless the person is licensed as a health professional, and
if the party against whom the testimony is offered is a specialist, specializes at the time of the
occurrence which is the basis for the action in the same specialty as the party against whom the
testimony is offered.
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We reverse the trial court’s decision and remand for entry of summary disposition in
favor of defendant. Plaintiffs claim that defendant is vicariously liable for malpractice
committed by McClure, a nurse practitioner in its employ. A plaintiff who brings a medical
malpractice action against an institution only must file with the complaint an affidavit of merit
executed by a health professional who specializes in the same specialty as the professional on
whose conduct the action is based. Nippa v Botsford General Hosp (On Remand), 257 Mich
App 387, 392-393; 668 NW2d 628 (2003). Plaintiffs’ affidavit of merit was signed by a boardcertified obstetrician/gynecologist and not by a nurse practitioner. In opposition to defendant’s
motion for summary disposition, plaintiffs asserted that the affidavit should be deemed sufficient
because a physician was familiar with and could testify regarding the standard of care applicable
to nurses. However, under the plain language of MCL 600.2169(1), plaintiffs’ named expert was
not qualified to give expert testimony against McClure, the agent whose actions formed the basis
of the claim against defendant.
Furthermore, plaintiffs’ affidavit is not sufficient to sustain the vicarious liability action
against defendant because it does not meet the requirements set out in MCL 600.2912d(1). The
affidavit does not contain the following required elements: a statement of the standard of care
applicable to nurse practitioners who practice in the same locality, Wiley, supra; a statement that
McClure breached the applicable standard of care; and a statement of the actions McClure should
have taken or omitted in order to comply with the applicable standard of care. An affidavit of
merit which is grossly nonconforming to the statutory requirements is not an affidavit of merit
which satisfies the statutory filing requirements, and thus does not support the filing of a
complaint that tolls the running of the statute of limitations. Mouradian v Goldberg, 256 Mich
App 566, 571-575; 664 NW2d 805 (2003). The filing of plaintiffs’ complaint and affidavit did
not toll the limitations period, and defendant was entitled to dismissal of the suit with prejudice.
Id.; see also Geralds v Munson Healthcare, ___ Mich App ___; ___ NW2d ___ (Docket No.
240159; pub’d October 28, 2003 at 9:05 a.m.), slip op at 7.
Reversed and remanded. We do not retain jurisdiction.
/s/ Bill Schuette
/s/ Donald S. Owens
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