BRUCE ESSELMAN V GARDEN CITY HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
BRUCE ESSELMAN, as Personal Representative
of the Estate of DAVID ESSELMAN, Deceased,
FOR PUBLICATION
June 4, 2009
9:00 a.m.
Plaintiff-Appellee,
v
No. 280723
Wayne Circuit Court
LC No. 06-609170-NH
GARDEN CITY HOSPITAL,
Defendant,
Advance Sheets Version
and
DAVID J. FERTEL, D.O., DAVID FERTEL, D.O.,
P.L.L.C., and D. FERTEL, D.O., P.C.,
Defendants-Appellants.
BRUCE ESSELMAN, as Personal Representative
of the Estate of DAVID ESSELMAN, Deceased,
Plaintiff-Appellee,
v
No. 280816
Wayne Circuit Court
LC No. 06-609170-NH
GARDEN CITY HOSPITAL,
Defendant-Appellant,
and
DAVID J. FERTEL, D.O., DAVID FERTEL, D.O.,
P.L.L.C., and D. FERTEL, D.O., P.C.,
Defendants.
Before: Saad, C.J., and Davis and Servitto, JJ.
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DAVIS, J.
In these consolidated appeals, the defendants appeal orders that denied their respective
motions for summary disposition. This medical malpractice case arises out of David Esselman’s
death, while in the care of defendants, from gangrenous cholecystitis1 and sepsis, each of which
he apparently had for at least 24 hours before his death. Defendants contend that plaintiff’s
notice of intent and affidavits of merit were insufficient. The trial court disagreed. We affirm.
The decedent was admitted to Garden City Hospital on September 26, 2003. He was
experiencing pain in his abdomen, back, and chest, and he was nauseous and vomiting. Initial
testing revealed a small obstruction in the decedent’s bowel. The next day, he continued to have
the same symptoms, but additionally had a body temperature of 101 degrees Fahrenheit.
Antibiotics and further testing were ordered, but no computerized tomography (CT) scan. On the
next day, his temperature rose to 102 degrees. A CT scan and a dimethyl iminodiacetic acid
(HIDA) scan were performed, from which it was concluded that his common bile duct was
obstructed and that there were indications that the decedent suffered from acute cholecystitis. A
second HIDA scan was ordered, though it appears it was not completed. Treating physicians
ordered the attending nurses to report any rises in body temperature.
On September 29, 2003, the decedent’s body temperature was recorded as being 102.7
degrees at 3:00 a.m., 102.6 degrees at 6:30 a.m., and 103 degrees by 8:00 a.m. At 1:30 p.m. that
day, the decedent underwent surgery and died during the procedure. The certificate of death
stated that he had died as a result of gangrenous cholecystitis and sepsis, each of which he had
for at least 24 hours before his death.
On June 7, 2005, plaintiff received his letter of authority appointing him as personal
representative of the decedent’s estate. On September 26, 2005, plaintiff sent his notice of intent
to file a claim (NOI) to the various defendants.2 The NOI was 14 pages long and included a
lengthy factual recitation of the decedent’s stay at Garden City Hospital, including detailed
discussions of the treatment provided by various individuals, as well as the acts and errors of the
individual defendants. Furthermore, it contained the following statement of the “applicable
standard of practice or care alleged”:
Pursuant to MCL 333.21513 entitled: “Duties and Responsibilities of
Owner, Operator or Governing Body of Hospitals”, the owner, operator and
governing body of a hospital licensed under this Article (A) are responsible for all
phases of the operation of the hospital, selection of the medical staff, and quality
of care rendered in the hospital.
The standard of care required from the above-named physicians, residents,
nurses, etc., and entities include the following but are not limited to:
1
Inflammation of the gallbladder.
2
Plaintiff’s NOI included allegations against defendants, as well as against individuals who
agreed to settle with plaintiff and are no longer parties to this matter.
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a. To timely diagnose and treat (an[d]/or refer to treat) gallbladder disease
including but not limited to performance of timely ultrasound, HIDA scan, CT
scan and/or MRI [magnetic resonance imaging] of the abdomen;
b. To fully and completely investigate and work up the patient for these
disease processes including but not limited to appreciating the increasing
laboratory values and deteriorating clinic[al] picture which began no later than
Saturday, September 27, 2003; on Saturday, September 27, 2003 perform the
above diagnostic testing so as to work up gallbladder disease which was clearly
suggested by not only the clinical picture but also the laboratory results. To
timely order and obtain a gastroenterological consultation and participation in the
care of this patient so as to determine whether this was in fact gallbladder disease
versus some other GI [gastroenterology] problem; and to timely determine
whether a pre-operative ERCP [endoscopic retrograde cholangiopancreatography]
and/or cholangiogram was necessary as well as to work up the blood in the stool
and declining hemoglobin levels;
c. To timely perform a cholecystectomy on Saturday, September 27, 2003
or, at the very latest Sunday, September 28, 2003;
d. Failure to obtain serial abdomen films and exams as well as serial labs
including arterial lactate as ordered on September 27, 2003 by the physicians and
nursing staff;
e. On Sunday, September 28, 2003 failure by the physicians and nurses
involved with Mr. Esselman’s care to appreciate the findings as evidenced by the
CT scan and HIDA scan that in fact this was acute cholecystitis and that Mr.
Esselman had a deteriorating clinical picture including high fever, markedly
abnormal laboratory values but especially significantly increased liver studies and
white blood count, and that his abdominal examination revealed tympany
necessitating an emergent operation on his gallbladder;
f. Not to unnecessarily delay Mr. Esselman’s surgery such that it would
be performed on either Saturday, September 27, 2003 or Sunday, September 28,
2003 at the very latest;
g. To order and obtain a timely gastroenterology consultation for a
preoperative ERCP and in the event that one was unavailable, obtain those
services from another GI [gastroenterologist] or alternatively proceed with the
surgery without an ERCP;
h. Throughout the remainder of Sunday, September 28, 2003 that the
nursing staff timely and immediately report signs of clinical deterioration such as
increasing temperature and increasing abdominal symptoms to the attending
physician after it was evident that the house officer would or did nothing with
such information as well as failure by the nursing staff to record vital signs once
every hour;
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i. On September 29, 2003 failure by the nursing staff to immediate[ly]
report markedly abnormal laboratory values and increasing temperature to either
the house officer and/or the attending physicians;
j. Failure by the physicians and nursing staff to assure that an immediately
and emergent operation was performed on Monday, September 29, 2003 instead
of same occurring in the afternoon hours;
k. Failure by the anesthesiologist and/or CRNA [certified registered nurse
anesthetist] to closely monitor end tidals C02 such that once they began to rise the
anesthesiologist should have been immediately notified and timely interaction
should have occurred including, but not limited to[,] hyperventilating the patient,
provide bicarbonate, etc.;
l. Failure to timely prevent and otherwise identify and treat the signs and
symptoms of sepsis; and,
m. Any and all other breaches of the standard of care found to be violated
through the course of discovery. [Underlining in original.]
On March 28, 2006, plaintiff filed his complaint, accompanied by four affidavits of merit.
Defendants moved for summary disposition; their motions made generally the same
assertions that (1) the NOI failed to comply with MCL 600.2912b because it did not specifically
state a particularized standard of care for each individual defendant and that (2) the affidavits of
merit failed to comply with MCL 600.2912d because they did not explain how defendants’
conduct caused the decedent’s death. The trial court denied those motions, and this Court
granted defendants’ applications for leave to appeal.
This Court reviews a trial court’s decision regarding summary disposition de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). This Court’s review is limited
to the evidence that was presented to the trial court. Peña v Ingham Co Road Comm, 255 Mich
App 299, 313 n 4; 660 NW2d 351 (2003). Furthermore, this case presents an issue of statutory
interpretation, which is also subject to review de novo. Grossman v Brown, 470 Mich 593, 598;
685 NW2d 198 (2004).
Pursuant to MCL 600.2912b(1), a person must send an NOI to a health care facility or
professional at least 182 days before he or she commences any action for medical malpractice
against the facility or professional. Furthermore, MCL 600.2912b(4) sets forth a number of
requirements with which the NOI must comply. Specifically, it states:
The notice given to a health professional or health facility under this
section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
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(c) The manner in which it is claimed that the applicable standard of
practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance
with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of
practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant
is notifying under this section in relation to the claim.
The plain language of the statute therefore does not require multiple statements, nor does it state
that plaintiffs must explicitly line qup particularized standards with individual defendants.
We are first urged to conclude that the Legislature did intend to require plaintiffs to
explicitly provide such an analysis in NOIs on the basis that the Legislature used singular words
in the above statute. However, that argument is entirely contrary to the dictates of MCL 8.3b,
which states that in construing statutes, singular and plural words “extend to and embrace” or
“may be applied and limited to” each other.
Defendants also rely on Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679;
684 NW2d 711 (2004). In that case, the plaintiff provided NOIs to the defendants, and each of
those NOIs contained an identical (other than the name of each defendant) recitation of the
applicable standard of care or practice. Our Supreme Court found this unacceptable, in part
because the statements did not contain anything specifically and explicitly advising the
corporate-entity defendants whether the plaintiff intended to proceed against them on a theory of
direct liability or vicarious liability. Id. at 692-693. But our Supreme Court also explained more
fully that the recitations in the NOIs were simply tautologies: in effect, they merely stated that
the defendants violated the standard of care by violating the standard of care. Id. at 693-694. In
contrast, the statement of standard of care in this case is clearly not a tautology, even when read
in isolation from the recitation of facts.
Moreover, defendants’ argument misconstrues what Roberts requires in the way of
specifying vicarious or direct liability. The Roberts holding was that the statement therein “fails
to indicate whether plaintiff was alleging” vicarious or direct liability, mostly because there was
a confusing ambiguity between the complaint’s apparent allegation of vicarious liability for the
negligence of the hospital’s agents, whereas the NOI “implied that plaintiff alleged direct
negligence against these defendants for negligently hiring or negligently granting staff privileges
to the individual defendants.” Id. at 693 (emphasis added). In other words, the statement of the
standard of care does not need to contain any explicit statement of whether a corporate defendant
is directly or vicariously liable; rather, it only needs to “serve as adequate notice” to the
defendants whether plaintiff intends to proceed against them on a vicarious liability theory. Id.
Although all the information required by the statute must be “specifically identified in an
ascertainable manner within the notice,” it does not need to be set forth in any particular “method
or format.” Id. at 701.
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Defendants further rely on this Court’s recent decision in Shember v Univ of Michigan
Med Ctr, 280 Mich App 309; 760 NW2d 699 (2008). We find Shember inapplicable for two
significant reasons, either of which would be sufficient by itself. First, the NOI in this case was
crafted in 2005, and Shember was decided three years later. Even if Shember imposed additional
specificity requirements, which it did not, it would be unjust and unfair to evaluate the
sufficiency of plaintiff’s NOI under a standard more stringent than what existed at the time the
NOI was drafted.
In any event, Shember involved a medical malpractice suit against a number of
defendants, and it was alleged that the NOI failed to identify the applicable standard of practice
or care with regard to some of those defendants. Id. at 319-320. This Court only recited what
Roberts had already explained: (1) that the standard of care must be described as something
more specific than literally “the standard of care,” (2) that all named defendants must be able to
discern from the NOI generally what theory they are expected to defend against, and (3) that
different defendants might be expected to comply with different standards of care. Shember does
not expand on Roberts; rather, it holds the same principle that if multiple defendants are
involved, the NOI needs to provide enough information for each of those defendants to discern
the general nature of what theory he, she, or it may expect to defend against, nothing more.
As discussed, Roberts did not hold that the NOI must explicitly state whether a plaintiff
intends to proceed against a corporate defendant on a theory of direct or vicarious liability.
Rather, plaintiffs should not present defendants with ambiguity regarding the nature of the action
of which they are providing notice. In other words, the Roberts Court was concerned that each
defendant must be reasonably able to discern the general nature of the cause of action that will be
alleged against them.
Our Supreme Court has explained that even if an NOI “may conceivably have apprised [a
defendant] of the nature and gravamen of [the] plaintiff’s allegations,” the applicable statutory
standard nevertheless requires NOIs to contain “a ‘statement’ describing” all the items of
information enumerated in MCL 600.2912b(4). Boodt v Borgess Med Ctr, 481 Mich 558, 560561; 751 NW2d 44 (2008). However, our Supreme Court did not address, let alone criticize, this
Court’s prior discussion explaining that, otherwise, those statements did not need to be any more
specific than would be required of allegations in a complaint or other pleading: they must only
give fair notice to the other party. Boodt v Borgess Med Ctr, 272 Mich App 621, 626-628; 728
NW2d 471 (2006). Indeed, our Supreme Court reaffirmed that a plaintiff must only provide a
good-faith statement of what is being claimed against each defendant, recognizing that discovery
would not yet have begun. Boodt, 481 Mich at 561. Along those same lines, this Court observed
that medical professionals surely keep records, particularly of any “mishaps”; consequently, as
long as the technical requirements of the statute are complied with, it “strains credulity to
conclude” that the defendants would not understand the nature of the suit plaintiff was planning
to commence. See Boodt, 272 Mich App at 632-633.
Thus, the issues are whether the NOI contains “a statement” that provides information
containing all the enumerated requirements of MCL 600.2912b(4), and whether those statements
reasonably communicate to a medical professional or medical facility (which surely has better
access to information than the plaintiff) the nature of the claim the plaintiff intends to pursue
against the medical professional or medical facility. In other words, Roberts and Boodt, when
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read together, hold that it is insufficient if an NOI only provides notice or only provides “a
statement.” It must do both. Here, it is clear that plaintiff did provide the requisite statement,
and plaintiff unambiguously alleges a collective failure by all defendants, in both supervisory
and direct roles, to take fairly specific actions on the basis of fairly specific information.
We agree with the trial court that plaintiff’s NOI satisfied MCL 600.2912b.
Next, pursuant to MCL 600.2912d, a plaintiff in a medical malpractice cause of action
must submit an affidavit of merit with the complaint. The affidavit must be signed by a health
care professional that could reasonably qualify as an expert witness. MCL 600.2912d(1). The
affidavit must set forth the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of
practice or care was breached by the health professional or health facility
receiving the notice.
(c) The actions that should have been taken or omitted by the health
professional or health facility in order to have complied with the applicable
standard of practice or care.
(d) The manner in which the breach of the standard of practice or care
was the proximate cause of the injury alleged in the notice. [MCL 600.2912d(1).]
Defendants each allege that plaintiff’s affidavits of merit failed to comply with MCL
600.2912d(1)(d) because they merely concluded that the allegedly negligent acts were the
proximate cause of the decedent’s death, without specifying exactly how the acts caused the
death.
Defendants primarily rely on an unpublished, and therefore nonbinding, case from this
Court that nevertheless fails to suggest that the affidavits of merit here were deficient. In Bond v
Cooper (On Reconsideration), unpublished opinion per curiam of the Court of Appeals, issued
May 22, 2008 (Docket No. 273315), this Court observed that the plaintiff’s affidavit of merit
merely stated, “‘the violations of the standard of care are a proximate cause of the damages
claimed by the Plaintiff.’” Id. at 3. This Court stated, “[t]he deficiency of this affidavit of merit
is apparent. Simply stating that violations of the standard of care ‘are a proximate cause of the
damages’ does not fulfill the statutory requirement that the affidavit state the ‘manner in which
the breach of the standard of practice or care was the proximate cause of the injury alleged in the
notice.’” Id. However, the Court continued to state that the deficiency in that case was “not
remedied by an examination of the affidavit as a whole.” Id. As this Court implied—and we
now expressly state—the purpose of the affidavits of merit, as with NOIs, and as with
documentary or statutory analysis in general, would not be furthered by examining individual
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components in isolation from the whole.3 Thus, even if a given section of the affidavit does not
adequately address proximate cause, the dispositive question is whether the affidavit as a whole
nevertheless explains how the alleged malpractice proximately caused the injury.
The actual sections of plaintiff’s affidavits that address proximate cause are relatively
conclusory in nature. Critically, however, the other portions of the affidavits are much more
detailed. Each of the affidavits explains that the various health care professionals failed to treat
the decedent’s symptoms in a timely fashion, that his condition continued to deteriorate, that he
developed sepsis and cholecystitis, and that he died. Moreover, defendants are sophisticated
parties, knowledgeable in the field of medicine, and presumably in possession of reasonably
illuminating records pertaining to the decedent’s treatment and death. The affidavits of merit
were not lacking in detail or difficult to decipher. They communicated that because of the
alleged malpractice, the decedent’s condition deteriorated and caused his death. To hold that
they were deficient because the sections that addressed proximate cause lacked the specificity
that other sections possessed would be to exalt form over substance.
We therefore agree with the trial court that plaintiff’s affidavits of merit satisfied MCL
600.2912d.
Affirmed.
Servitto, J., concurred.
/s/ Alton T. Davis
/s/ Deborah A. Servitto
3
In Craig v Oakwood Hosp, 471 Mich 67, 86-88; 684 NW2d 296 (2004), our Supreme Court
explained that a mere correlation between alleged malpractice and an injury is insufficient to
establish proximate cause; but Craig addressed the elements of a medical malpractice cause of
action pursuant to MCL 600.2912a, not the sufficiency of an affidavit of merit. Given that an
affidavit of merit is attached to a plaintiff’s complaint, and is thus produced before the discovery
period, it would be inappropriate to hold an affidavit of merit to the same standard.
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