EST OF PATRICIA HUBKA V KEITH DEFEVER MD
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
The Estate of PATRICIA HUBKA, Deceased, by
GAYLE WAGNER, Personal Representative,
UNPUBLISHED
February 14, 2008
Plaintiff-Appellant,
v
KEITH DEFEVER, M.D., KEITH DEFEVER,
M.D., P.C., HARRY J. ARETAKIS, M.D.,
JEFFREY ALAN HOLLADAY, M.D., TRINITY
HEALTH-MICHIGAN, d/b/a ST. JOSEPH
MERCY MACOMB, SHARON KHAN-LEPAK,
D.O., ST. JOHN RIVER DISTRICT HOSPITAL,
RIVER DISTRICT MEDICAL GROUP, P.C.,
BEERAVOLU RAMESH REDDY, M.D., and
CARDIOLOGY ASSOCIATES OF PORT
HURON, P.C.,
No. 274857
Macomb Circuit Court
LC No. 2005-004034-NH
Defendants-Appellees,
and
VRAJMOHAN C. PARIKH, M.D.,
Defendant.
Before: Fitzgerald, P.J., and Murphy and Borrello, JJ.
PER CURIAM.
In this wrongful death medical malpractice case, plaintiff appeals as of right from the trial
court’s order granting summary disposition in favor of defendants Keith Defever, M.D., Keith
Defever, M.D., P.C., Harry J. Aretakis, M.D., Jeffrey A. Holladay, M.D., Trinity HealthMichigan, d/b/a St. Joseph Mercy Macomb (“St. Joseph Mercy”), Sharon Khan-Lepak, D.O., St.
John River District Hospital (“St. John”), River District Medical Group, P.C. (“River Medical
Group”), Beeravolu R. Reddy, M.D., and Cardiology Associates of Port Huron, P.C.
(“Cardiology Associates”), under MCR 2.116(C)(7), for failure to file a properly certified
affidavit of merit with the complaint before the expiration of the statute of limitations. We
affirm in part, reverse in part, and remand for further proceedings.
-1-
This action arises from care provided to the decedent, Patricia Hubka, between April 11,
2003, and April 14, 2003, when she died from a pulmonary embolism. Plaintiff filed this action
against several medical professionals who allegedly treated Hubka during this period, including:
(1) Dr. Defever, Hubka’s family physician; (2) Drs. Holladay and Aretakis, emergency room
physicians at St. Joseph Mercy; (3) Dr. Khan-Lepak, a family practitioner; and (4) Drs. Reddy
and Vrajmohan C. Parikh, cardiologists who allegedly saw Hubka on the day she died.
With the original complaint, plaintiff filed three affidavits of merit from out-of-state
medical professionals. One was from Dr. Dennis Levin, a board-certified family physician,
another was from Dr. Albert Weihl, a board-certified emergency room physician, and one was
from Dr. Alan Brown, who is board certified in cardiology and internal medicine. It is
undisputed that the only affidavit that addresses the issue of proximate cause is Dr. Brown’s
affidavit. However, Dr. Levin’s and Dr. Weihl’s affidavits were certified under MCL
600.2102(4) of the Revised Judicature Act (“RJA”), MCL 600.101 et seq., while Dr. Brown’s
was not. Instead, Dr. Brown’s affidavit complied with the requirements of the Uniform
Recognition of Acknowledgements Act (“URAA”), MCL 565.261 et seq.
Relying on this Court’s decision in Apsey v Mem Hosp (On Reconsideration), 266 Mich
App 666; 702 NW2d 870 (2005), rev’d 477 Mich 120 (2007), the trial court determined that Dr.
Brown’s affidavit of merit was defective because it did not contain the required RJA
certification, that the filing of the defective affidavit did not toll the statute of limitations, and
that dismissal of plaintiff’s claim against the cardiologist, Dr. Reddy, was therefore required.1
With respect to the remaining defendants, the trial court determined that plaintiff intended to
satisfy the proximate cause pleading requirement with regard to all defendants by relying on Dr.
Brown’s affidavit, and that because Dr. Brown’s affidavit was defective, dismissal was also
required in regard to all remaining defendants.
A trial court’s grant of summary disposition is reviewed de novo, on the entire record, to
determine whether the prevailing party was entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Summary disposition may be granted
under MCR 2.116(C)(7) when a claim is barred by the statute of limitations. The Maiden Court
observed:
A party may support a motion under MCR 2.116(C)(7) by affidavits,
depositions, admissions, or other documentary evidence. If such material is
submitted, it must be considered. MCR 2.116(G)(5). Moreover, the substance or
content of the supporting proofs must be admissible in evidence. . . . Unlike a
motion under subsection (C)(10), a movant under MCR 2.116(C)(7) is not
required to file supportive material, and the opposing party need not reply with
supportive material. The contents of the complaint are accepted as true unless
1
The trial court had earlier dismissed plaintiff’s claim against the other cardiologist, Dr. Parikh,
after determining that she was not involved in Hubka’s care before the standard of care allegedly
was breached. Plaintiff does not challenge that decision on appeal.
-2-
contradicted by documentation submitted by the movant. [Maiden, supra at 119
(citation omitted).]
Plaintiff first argues that the trial court erred in determining that Dr. Brown’s affidavit of
merit was defective because it did not comply with the RJA-certification requirement. We agree.
On May 1, 2007, our Supreme Court reversed this Court’s decision in Apsey and held that
an out-of-state affidavit is acceptable if it is either certified under the RJA or complies with the
requirements of the URAA. See Apsey v Mem Hosp, 477 Mich 120, 124, 130; 730 NW2d 695
(2007). In the present case, Dr. Brown’s original affidavit of merit, signed by a notary and
stamped with an ordinary notary seal, meets the requirements of the URAA. See MCL
565.262(a); see also Apsey, supra, 477 Mich at 124, 134. Therefore, Dr. Brown’s affidavit of
merit was not defective for lack of proper certification. Furthermore, Dr. Brown’s affidavit of
merit is sufficient to meet the statutory requirements concerning the one cardiologist remaining
in this case, Dr. Reddy. See MCL 600.2912d(1). Accordingly, the trial court’s dismissal of
plaintiff’s claim against Dr. Reddy, and her derivative claim against Cardiology Associates, is
reversed.
However, it is undisputed that none of the other affidavits of merit filed with plaintiff’s
complaint address the issue of proximate cause. Accordingly, the remaining defendants argue
that even if Dr. Brown’s affidavit is not defective, it cannot be used to satisfy the statutory
proximate cause requirements with respect to the non-cardiologist defendants, Drs. Defever and
Khan-Lepak (family physicians), and Drs. Holladay and Aretakis (emergency room physicians).
Even were we to assume that Dr. Brown would be permitted under MCL 600.2912d and MCL
600.2169 to address the causation element relative to the non-cardiologist defendants and that
plaintiff could look to Dr. Brown’s affidavit in an effort to comply with MCL 600.2912d(1)(d),
Dr. Brown’s affidavit is insufficient to meet the requirements of MCL 600.2912d(1)(d) in regard
to the non-cardiologist defendants.2
2
Although we do not reach this ruling today, if the statutes are indeed to be read as not allowing
a separate affidavit of merit to satisfy the causation requirement because that affiant does not
practice the same specialty or have the same board certification as the defendant, we would
implore the Legislature to revisit the issue. It has become patently clear that there are often
situations in which an expert affiant, who proffers an affidavit of merit and practices the same
specialty or has the same board certification as a defendant, lacks the expertise and ability to
speak to the issue of causation, while being more than capable to address the standard of care,
breach of the standard of care, and the actions that should have been taken or omitted. Causation
issues can implicate the need to rely on medical knowledge or expertise that goes beyond the
scope of an expert who would otherwise be qualified to submit an affidavit of merit. This is
because the breach of a standard of medical practice or care can result in injury or harm to the
body in a highly particularized manner, demanding explanation from a physician in the relevant
specialized field. Being qualified to address what medical steps should or should not be taken,
and even knowing the potential results if a step is taken or omitted, does not necessarily mean
that the affiant is also sufficiently qualified to state the physiological mechanism or manner by
which the action or inaction leads to the result. This case provides an excellent example of the
(continued…)
-3-
MCL 600.2912d(1)(d) requires the affidavit of merit to contain a statement regarding
“[t]he manner in which the breach of the standard of practice or care was the proximate cause of
the injury alleged in the notice.” Dr. Brown’s affidavit contains a statement on proximate cause,
and the statement references the previously expressed breaches of the standard of care and then
proceeds to explain how those particular breaches caused Hubka’s death. The problem that
arises in using this causation statement for purposes of the non-cardiologist defendants is that
each of the averments concerning the breach of the standard of care relate specifically and
expressly to cardiologists. Dr. Brown averred, “It is my opinion that the standard of care for a
cardiologist was breached by the consulting cardiologists in this case in the following ways.” To
satisfy the causation element for the non-cardiologist defendants, the affidavit needed to set forth
the manner in which the breach of the standard of care relative to family and emergency room
physicians was the proximate cause of the alleged injury. Without this language in Dr. Brown’s
affidavit and no statement on causation in the other two affidavits, there is simply no statement
averring that the negligent acts of the non-cardiologist defendants caused Hubka’s death.
Accordingly, dismissal as to these defendants was proper.
We agree with plaintiff, however, that the claims should have been dismissed without
prejudice.
In Scarsella v Pollak, 461 Mich 547, 553; 607 NW2d 711 (2000), our Supreme Court
held that filing a medical malpractice complaint without an affidavit of merit was insufficient to
toll the statute of limitations. But the Court declined to decide the issue whether a defective
affidavit of merit tolls the statute of limitations. Id. at 553 n 7.
More recently, in Kirkaldy v Rim, 478 Mich 581, 584-586; 734 NW2d 201 (2007), the
Court held that filing a defective or nonconforming affidavit of merit is not the functional
equivalent of failing to file an affidavit of merit. Rather, an affidavit of merit is presumed valid,
thereby tolling the statute of limitations, until that presumption is rebutted in subsequent judicial
(…continued)
dilemma faced by practitioners. Although a family or emergency room physician may have the
knowledge to state that a patient presenting with certain symptoms should be treated in a certain
manner in order to avoid the potential danger of harm from a pulmonary embolism, the
knowledge to genuinely state that the failure to follow a course of treatment actually resulted in
or caused the harm or death from a pulmonary embolism, and then to explain the manner in
which this occurred, would rest with a cardiologist, not a family or emergency room doctor. The
failure of the Legislature to recognize this glaring problem when enacting MCL 600.2912d not
only creates difficulties for plaintiffs pursuing legitimate medical malpractice actions, but can
result in potentially frivolous actions moving forward, contrary to the Legislature’s intent, where
an affidavit of merit is signed in compliance with the statutes, but the expert affiant is truly not
qualified to address causation. See Sturgis Bank & Trust Co v Hillsdale Community Health Ctr,
268 Mich App 484, 489; 708 NW2d 453 (2005)(“We hold that the affidavits executed by the
nurse and the nurse practitioner [relative to the nurse defendants] were sufficient for purposes of
MCL 600.2912d(1) and the relevant subsection of MCL 600.2169 even if the nurse and the nurse
practitioner did not have the expertise or qualifications necessary to establish proximate cause.”
(Emphasis added.)). After first ordering oral argument on the issue whether the application for
leave should be granted in Sturgis Bank, 477 Mich 874 (2006), our Supreme Court ultimately
declined to grant leave, 479 Mich 854 (2007).
-4-
proceedings. Id. at 586; see also Saffian v Simmons, 477 Mich 8, 13; 727 NW2d 132 (2007).
The Court stated:
Therefore, a complaint and affidavit of merit toll the period of limitations
until the validity of the affidavit is successfully challenged in subsequent judicial
proceedings. Only a successful challenge will cause the affidavit to loose its
presumption of validity and cause the period of limitations to resume running.
Thus, if the defendant believes that an affidavit is deficient, the defendant
must challenge the affidavit. If that challenge is successful, the proper remedy is
dismissal without prejudice. The plaintiff would then have whatever time remains
in the period of limitations within which to file a complaint accompanied by a
conforming affidavit of merit. [Kirkaldy, supra at 586 (emphasis added; internal
quotations and citations omitted).]
Thus, the Kirkaldy Court overruled Geralds v Munson Healthcare, 259 Mich App 225; 673
NW2d 792 (2003), and Mouradian v Goldberg, 256 Mich App 566; 664 NW2d 805 (2003),
cases in which this Court held that a nonconforming affidavit of merit does not toll the statute of
limitations. See Kirkaldy, supra at 583.
In light of Kirkaldy, plaintiff’s claims against Drs. Defever, Khan-Lepak, Holladay, and
Aretakis, and the derivative claims against Defever, P.C., St. Joseph Mercy, River Medical
Group, and St. John, should have been dismissed without prejudice.
Accordingly, we reverse the trial court’s dismissal of plaintiff’s claims against Dr. Reddy
and Cardiology Associates, but affirm the dismissal of the remaining defendants; however, the
dismissal is without prejudice.
In light of our decision, it is unnecessary to address the parties’ remaining issues.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ E. Thomas Fitzgerald
/s/ William B. Murphy
/s/ Stephen L. Borrello
-5-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
