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
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.
SAAD, C.J. (dissenting).
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I. Introduction
The legislation that comprehensively regulates the prerequisites for and the filing of
medical malpractice claims in Michigan places significant obligations on plaintiffs and
defendants that are not found in ordinary, garden-variety tort actions. The mutual obligations
imposed by the Legislature are designed to streamline and settle medical malpractice disputes,
even before they become lawsuits. Neal v Oakwood Hosp Corp, 226 Mich App 701, 705; 575
NW2d 68 (1997). Indeed, as a predicate to filing the litigation, a claimant must detail the factual
basis for the claim, the applicable standard of practice or care, the manner in which the plaintiff
claims the health professional breached that standard, what action the health professional should
have taken to comply with the standard, and how the alleged breach caused the injury. After an
exchange of medical records, the health professional must, in turn, respond to the plaintiff’s
detailed assertions by providing the factual basis for his or her defense, the standard of care the
health professional believes applies, the manner in which the health professional complied with
that standard, and the manner in which he or she believes that the claimed negligence did not
proximately cause the alleged injury. Because medical malpractice claims may involve more
than one health professional, including doctors and nurses in various specialties with different
degrees of contact and control over the patient’s care, our Supreme Court has, correctly in my
view, held that these mutual obligations must be detailed with regard to each health professional.
Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679; 684 NW2d 711 (2004). This
obligation exists for the obvious reason that the facts, standards of care, and complex medical
questions will vary widely from doctor to nurse and from generalist to specialist. But today, in
direct contradiction of the clear statutory mandate and the Supreme Court’s ruling in Roberts, the
majority dispenses with the obligation of a claimant to set forth this important information with
regard to each health professional and holds, instead, that a general narrative about the patient’s
hospital stay suffices.
The majority conveniently ignores how 18 health professionals in this case, including
resident doctors, surgeons, and nurses, should respond to this narrative in order to meet their
individual statutory obligations to reply with applicable facts, the appropriate standard of care,
and causation. Indeed, the majority justified its reasoning with the incorrect and spurious
assertion that the health care professionals have the records. But, just as the majority ignores the
reciprocal nature of the notice of intent requirements, it similarly ignores the mutual obligations
of the claimant and health care providers to produce and exchange all relevant medical records
before the litigation is commenced in order to further narrow the issues and the parties and to
settle medical malpractice disputes. Moreover, the majority’s studied refusal to acknowledge the
rest of the statute also ignores another important feature of this legislation. After the detailing of
facts, standards, and causation by the claimant and health care professionals and after the
exchange of medical records, the claimant and health care professionals must produce affidavits
from qualified medical experts swearing to the merits or defenses regarding duty, breach, and
causation. Of course, this entire sequential and mutual statutory scheme falls apart if, as here,
our Court holds that, at the first step of this multi-step process, all a claimant must do is describe
a series of events, without articulating what was required of each health care professional, how
the professional breached that standard of care, and how that breach caused the injuries in issue.
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II. Analysis
Our Supreme Court specifically held in Roberts that a plaintiff’s notice of intent must
comply with MCL 600.2912b(4)(b) “with respect to each defendant.” Roberts, supra at 695
(emphasis added).1 Subsequent cases have similarly held that “[t]he alleged standard [of practice
or care] must be particularized for each of the professionals and facilities named in the notices.”
Bush v Shabahang, 278 Mich App 703, 711; 753 NW2d 271 (2008). The common sense rule
comports with the clear mandate of the statute. The statute, § 2912b(4), sets forth the
requirements with which the notice of intent must comply:
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.
(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. [MCL 600.2912b(4).][2]
Plaintiff’s notice of intent did not meet these statutory requirements because, although the notice
includes some standards of care, it does not state which standards apply to which health
professional or facility. As the Court in Roberts explained, “what is required is that the claimant
make a good-faith effort to aver the specific standard of care that she is claiming to be applicable
to each particular professional or facility that is named in the notice.” Roberts, supra at 691-692
1
Though the Court in Roberts specifically addressed the notice of intent requirement for the
standard of care, its holding clearly applies to the other obligations in MCL 600.2912b(4), which
require a claimant to also specify, with regard to each medical professional or facility, how the
health professional or facility breached the applicable standard of care, what the professional or
facility should have done to comply with the standard of care, and how the particular health
professional or facility’s alleged breach proximately caused the claimed injury.
2
By definition, the statute contemplates that the claimant must give all health professionals the
names of all other health professionals notified under MCL 600.2912b(4), thus clearly stating
that each health professional must be individually notified of each subcategory under §
2912b(4).
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(emphasis deleted). In finding the notice of intent inadequate in Roberts, the Court further
observed:
Here, several different medical caregivers were alleged to have engaged in
medical malpractice. Yet, rather than stating an alleged standard of practice or
care for each of the various defendants―a hospital, a professional corporation, an
obstetrician,
a
physician’s
assistant,
and
an
emergency
room
physician―plaintiff’s notices of intent allege an identical statement applicable to
all defendants . . . . [Id. at 692.]
Here, the notice of intent merely sets forth a series of names followed by a series of standards
and allegations and, contrary to the explicit holding in Roberts, plaintiff did not match the names
to any of the standards of care, state how each health professional breached the applicable
standard, and state how that breach caused harm to plaintiff’s decedent.
In excusing this deficiency, the majority reasons that the Roberts Court merely warned
that the standard of care set forth in the notice of intent may not be tautological and
unresponsive, and that plaintiff made a good faith effort to set forth the applicable standards to
satisfy the statutory requirements. But Roberts unequivocally states that a claimant is “required
to make a good-faith averment of some particularized standard for each of the professionals and
facilities named in the notices.” Id. at 694 (emphasis in original). This rule stems from the plain
language of the statute itself, which provides that a party may not commence a malpractice
action until he or she has given “the health professional or health facility written notice” that
includes the applicable standard of care and “[t]he manner in which it is claimed that the
applicable standard of practice or care was breached by the health professional or health
facility,” and what the professional should have done differently. MCL 600.2912b(1),3 and
(4)(c) (emphasis added). In other words, each health professional called to defend a medical
malpractice claim is entitled to specific notice of the recognized standard of acceptable
professional practice or care in the community for his or her area of practice, specialty, or
subspecialty, how the conduct of that health professional allegedly breached that standard, and
what the plaintiff alleges the health professional should have done to comply with the applicable
standard. A health facility is entitled to the same notice and, if vicarious liability is alleged, it
stands to reason that the facility is entitled to notice of the specific standards, breaches, and what
alleged action should have been taken by each medical professional.
3
MCL 600.2912b(1) provides:
Except as otherwise provided in this section, a person shall not commence
an action alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health facility
written notice under this section not less than 182 days before the action is
commenced.
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Here, while plaintiff set forth a recitation of facts about the decedent’s hospitalization, he
made no effort to provide notice of which standard of care applied to or was breached by each
named health professional or facility, a list that includes medical practices and professionals of
varying types, training, and specialties. Indeed, plaintiff’s notice of intent is directed to 18
separate health professionals and entities, including a cardiovascular surgeon, a doctor of internal
medicine, two cardiovascular thoracic surgical residents, a gastroenterologist, a coronary
vascular thoracic surgical resident, an anesthesiologist, a certified registered nurse anesthetist,
four registered nurses, and several private medical entities, including Garden City Hospital and
various medical groups. As the Roberts Court observed:
The phrase “standard of practice or care” is a term of art in the malpractice
context, and the unique standard applicable to a particular defendant is an element
of a medical malpractice claim that must be alleged and proven. Cox v Flint Bd of
Hosp Mgrs, 467 Mich 1, 10; 651 NW2d 356 (2002). The applicable standard is
governed either by statute (see, for example, MCL 600.2912a[1], which sets forth
the particular proofs that a malpractice plaintiff must present with respect to a
defendant’s “standard of practice or care,” depending on whether the defendant is
a general practitioner or a specialist) or, in the absence of a statutory standard, by
the common law. Cox, supra at 5, 20. The standard of practice or care that is
applicable, for example, to a surgeon would likely differ in a given set of
circumstances
from
the
standard
applicable
to
an
OB/GYN
[obstetrician/gynecologist] or to a nurse. [Roberts, supra at 692 n 8.]
Later in the Roberts opinion, our Supreme Court further explained:
The dissent argues that nowhere in § 2912b(4) does the Legislature require
that a plaintiff allege a “standard applicable specifically” to each defendant and,
therefore, neither should this Court. However, as explained . . . the phrase
“standard of practice or care” is a term of art. Proof of the standard of care is
required in every medical malpractice lawsuit, and the Legislature has chosen to
require a plaintiff to address standard of care issues in the notice of intent. Under
a proper understanding of this term, the standard applicable to one defendant is
not necessarily the same standard applicable to another defendant. Thus, we are
attempting to do nothing more than interpret the Legislature’s requirement in §
2912b(4)(b)―that a plaintiff provide a “statement” regarding the applicable
“standard of practice or care” alleged. [Roberts, supra at 694 n 11 (citations
omitted).]
Again, Roberts makes clear that a plaintiff’s notice must comply with § 2912b(4)(b)
“with respect to each defendant.” Roberts, supra at 695 (emphasis added). Here, plaintiff’s
notice of intent contains assertions regarding what, as a group, the “physicians, residents, nurses,
etc. and entities” did or failed to do for Mr. Esselman, but contains no particularization of which
listed actions or what alleged standards of care for health care providers apply to any one of the
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listed health professionals. Thus, the notice is insufficient to inform any one of the myriad
specialists, interns, or nurses of what they “did not do or should have done to comply with the
applicable standard of care.” Shember v Univ of Michigan Med Ctr, 280 Mich App 309, 324;
760 NW2d 699 (2008).4 As noted, different standards apply to different classes of health
professionals and, without some specific indication of the standards applicable to each named
health professional or facility, even a lengthy factual narrative like plaintiff’s simply fails to
reasonably communicate to each professional or facility the nature of the claim plaintiff intends
to pursue.
Importantly, “[t]he purpose of the notice requirement is to promote settlement without the
need for formal litigation and reduce the cost of medical malpractice litigation while still
providing compensation for meritorious medical malpractice claims . . . .” Neal, supra at 705,
citing Senate Legislative Analysis, SB 270, August 11, 1993; House Legislative Analysis, HB
4403-4406, March 22, 1993. For this reason, the allegations in the notice must be sufficiently
specific to allow the health professional or facility to determine the basis of the plaintiff’s claim
against him, her, or it and decide whether to negotiate a settlement. Here, the lack of
particularized information about what standard applies and what each health professional or
facility did to breach the applicable standard prevents each from ascertaining the nature, scope,
and substance of the allegations against him, her, or it and from engaging in any meaningful
analysis or discussion about settling the case. Despite clear differences in their occupations,
practices, and specialties, plaintiff’s notice asserts that the various doctors and nurses were
equally required to take certain actions and equally at fault for certain aspects of Mr. Esselman’s
care. This does not allow any of the health professionals or facilities to understand the specific
contentions about their allegedly negligent conduct and it clearly does not advance the important
policy objective of promoting a fruitful settlement process.
The majority’s decision advocates a buckshot approach to asserting a medical
malpractice claim, which further ignores that the notice of intent provision is interconnected with
the other statutory sections addressing the commencement of a claim. By minimizing the
complainant’s responsibilities under § 2912b(4)(b), it undermines the mutual obligations
imposed by the remainder of the statutory scheme. Not only must the health professional
specifically respond to the claimant’s allegations with regard to the applicable duty, breach, and
causation elements, he or she must provide the claimant with access to all medical records. MCL
600.2912b(5),5 (7).6 Thereafter, on the basis of all the foregoing documentation, a plaintiff must
4
The majority makes the inconsistent assertion that this Court should not apply Shember if
Shember creates any more rigorous requirements than those in Roberts, but it then concludes that
Shember did not expand on the requirements set forth in Roberts. The latter statement is correct.
Shember simply applied the law as it has been promulgated by our courts since Roberts.
Moreover, to the extent the majority implies that Shember is distinguishable because it involved
“a medical malpractice suit against a number of defendants,” ante at ___, this case, too, involves
a large number of defendants―18 health professionals and entities―and plaintiff’s failure to
articulate the appropriate standards of care applicable to each. Accordingly, pursuant to both
Roberts and Shember, plaintiff’s notice of intent was insufficient.
5
MCL 600.2912b(5) states:
(continued…)
-6-
file an affidavit of merit from an appropriate medical professional to further narrow the issues by
setting forth the applicable standard of care, an opinion about how that standard of case was
breached, what actions should have been taken to comply with the standard of care, and how the
alleged breach proximately caused the injury. MCL 600.2912d.7 In turn, the health care
(…continued)
Within 56 days after giving notice under this section, the claimant shall
allow the health professional or health facility receiving the notice access to all of
the medical records related to the claim that are in the claimant’s control, and
shall furnish releases for any medical records related to the claim that are not in
the claimant’s control, but of which the claimant has knowledge. Subject to [MCL
600.6013(9)], within 56 days after receipt of notice under this section, the health
professional or health facility shall allow the claimant access to all medical
records related to the claim that are in the control of the health professional or
health facility. This subsection does not restrict a health professional or health
facility receiving notice under this section from communicating with other health
professionals or health facilities and acquiring medical records as permitted in
[MCL 600.2912f]. This subsection does not restrict a patient’s right of access to
his or her medical records under any other provision of law.
6
MCL 600.2912b(7) states:
Within 154 days after receipt of notice under this section, the health
professional or health facility against whom the claim is made shall furnish to the
claimant or his or her authorized representative a written response that contains a
statement of each of the following:
(a) The factual basis for the defense to the claim.
(b) The standard of practice or care that the health professional or health
facility claims to be applicable to the action and that the health professional or
health facility complied with that standard.
(c) The manner in which it is claimed by the health professional or health
facility that there was compliance with the applicable standard of practice or care.
(d) The manner in which the health professional or health facility contends
that the alleged negligence of the health professional or health facility was not the
proximate cause of the claimant’s alleged injury or alleged damage.
7
MCL 600.2912d provides:
(1) Subject to subsection (2), the plaintiff in an action alleging medical
malpractice or, if the plaintiff is represented by an attorney, the plaintiff’s attorney
shall file with the complaint an affidavit of merit signed by a health professional
who the plaintiff’s attorney reasonably believes meets the requirements for an
expert witness under section 2169. The affidavit of merit shall certify that the
health professional has reviewed the notice and all medical records supplied to
him or her by the plaintiff’s attorney concerning the allegations contained in the
notice and shall contain a statement of each of the following:
(continued…)
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defendant must file an affidavit of meritorious defense from a qualified medical professional and
include specific facts and medical information to refute the plaintiff’s claim. MCL 600.2912e.
Without a fair understanding of the specific allegations against the health professional or entity,
it defies explanation how an expert could properly assess the merits of the claims or how any of
the individual medical caregivers could adequately respond, let alone weigh whether the claims
should prompt serious settlement negotiations. Thus, it also does a serious disservice to the
claimant to fail to comply with the statute and the well-established caselaw.
Moreover, while the majority states that the health professionals are in a better position to
sort out who must have engaged in negligent conduct, this is not an ordinary negligence case and
the statute contains specific requirements reflecting the difference. The statutory scheme is
clearly intended to require more rigor in the litigation of medical malpractice cases in order to
narrow the issues and to encourage settlement. The majority’s reasoning ignores the plaintiff’s
obligations under the statutes and presumes the existence of a negligent act that will reveal itself
once the health professional reviews his or her own records. This is entirely at odds with the
comprehensive legislative scheme and ignores that, in addition to the plaintiff’s obligation to
provide specific assertions about a health professional’s duty, how the duty was breached, and
how the breach caused the injury, medical malpractice defendants have the equal and
corresponding obligation to provide the very records the majority implies are entirely within the
defendants’ control.
(…continued)
(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.
(2) Upon motion of a party for good cause shown, the court in which the
complaint is filed may grant the plaintiff or, if the plaintiff is represented by an
attorney, the plaintiff’s attorney an additional 28 days in which to file the affidavit
required under subsection (1).
(3) If the defendant in an action alleging medical malpractice fails to allow
access to medical records within the time period set forth in [MCL 600.2912b(6)],
the affidavit required under subsection (1) may be filed within 91 days after the
filing of the complaint.
-8-
III. Conclusion
For the above reasons, I would hold that, under the statute and our caselaw, plaintiff’s
notice of intent is simply insufficient “[b]ecause the notice examined in its entirety does not
comport with plaintiff’s responsibility to make a good-faith averment of all the requirements of
the statute pertaining to” each health care provider. Shember, supra at 324. Accordingly, I
would hold that the trial court should have granted defendants’ motions for summary disposition.
/s/ Henry William Saad
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