RACHEL BALDWIN V MATTIE M SCOTT MD
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STATE OF MICHIGAN
COURT OF APPEALS
RACHEL BALDWIN, Personal Representative of
the Estate of ETHAN BALDWIN,
UNPUBLISHED
December 4, 2008
Plaintiff-Appellee,
v
MATTIE M. SCOTT, M.D. and WOMEN’S
HEALTH CARE ASSOCIATES, a/k/a HURLEY
HEALTH SERVICES,
No. 275809
Genesee Circuit Court
LC Nos. 05-081312-NH;
04-079596-NH
Defendants-Appellants,
and
BOARD OF HOSPITAL MANAGERS FOR THE
CITY OF FLINT, d/b/a HURLEY MEDICAL
CENTER,
Defendant-Appellee.
RACHEL BALDWIN, Personal Representative of
the Estate of ETHAN BALDWIN,
Plaintiff-Appellant-Cross-Appellee,
v
MATTIE M. SCOTT, M.D. and WOMEN’S
HEALTH CARE ASSOCIATES, a/k/a HURLEY
HEALTH SERVICES,
Defendants-Appellees,
and
BOARD OF HOSPITAL MANAGERS FOR THE
CITY OF FLINT, d/b/a HURLEY MEDICAL
CENTER,
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No. 275830
Genesee Circuit Court
LC Nos. 05-081312-NH;
04-079596-NH
Defendant-Appellee-CrossAppellant.
Before: Kelly, P.J., and Owens and Schuette, JJ.
PER CURIAM.
In Docket No. 275809, defendants Mattie M. Scott, M.D. (Dr. Scott) and Hurley Health
Services (HHS) appeal by leave granted the trial court’s January 8, 2007 order granting in part
plaintiff’s motion for reconsideration. In Docket No. 275830, plaintiff appeals by leave granted
the trial court’s June 13, 2006 order granting defendants’ motions for summary disposition and
its January 8, 2007 order to the extent that it limits amendment of her complaint. Defendant
Hurley Medical Center (HMC) cross-appeals the January 8, 2007 order, arguing that the trial
court erred in allowing plaintiff to amend her complaint. We affirm in part, reverse in part, and
remand for further proceedings.
I. FACTS
This wrongful death action arises out of the death of plaintiff’s son, Ethan Baldwin
(Ethan), five days after he was born.
On May 29, 2001, Dr. Scott, plaintiff’s obstetrician/gynecologist, conducted a non-stress
test on plaintiff, who was over her due date; the test revealed some decelerations, so Dr. Scott
advised plaintiff that she should be admitted to the hospital for monitoring and possible
induction. Plaintiff was admitted to HMC at approximately 6:30 p.m. on May 29, 2001. After
her admission, an external fetal monitor was placed to monitor the condition of the fetus during
labor and delivery. Plaintiff was effaced but not dilated. She was given Prostagel to see if she
would deliver naturally, but it did not happen. On May 30, 2001, she was given Pitocin to
induce her labor. Dr. Scott broke plaintiff’s water at 11:00 a.m., and plaintiff began pushing
around 3:00 p.m. However, there were problems with the delivery: Ethan was in an occiput
posterior (face-up) position. A vacuum extraction was attempted unsuccessfully five times.¶
As early as 2:30 or 3:00 p.m., there were signs of fetal distress, including late
decelerations, decreased variability, and eventually severe variable decelerations.
At
approximately 7:00 p.m. on May 30, 2001, Ethan was delivered by caesarean section (c-section).
At one minute after delivery, Ethan’s Apgar score was one, and at five minutes after delivery, it
was three. At birth, Ethan was apneic, bradycardiac, and hypertonic. Plaintiff asserts that these
conditions were “directly related to hypoxic ischemia resulting from failure to deliver the child in
a timely fashion once signs of fetal distress manifested themselves earlier in the evening.”
Ethan was placed on a ventilator after he was delivered. Sometime the following day, he
was weaned off the ventilator because he apparently started breathing on his own. But he began
to have seizures and was placed back on the ventilator. A physician examined Ethan and
identified “profound encephalopathy due to hypoxic ischemic conditions, most likely several
hours prior to delivery.” The same physician examined Ethan a day later, and it was his
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impression that Ethan had “profound diffuse encephalopathy with severe brainstem
dysfunction.” He believed that the prognosis for significant neurological recovery was poor.1
The physician met with Ethan’s parents and explained that if Ethan survived there was a
high probability of poor neurological sequelae and he would possibly suffer severe cerebral palsy
and hearing, visual, and motor impairment. Medical personnel spoke with plaintiff and Ethan’s
father again, and they presented them with the option of extubating Ethan. This was done, and
on June 5, 2001, Ethan died. The death certificate described the cause of death as multiple organ
failure and severe respiratory depression at birth.
Plaintiff filed suit against defendants, alleging that Dr. Scott breached the applicable
standard of care by failing to properly monitor Ethan during labor and in failing to deliver Ethan
by c-section no later than 5:30 p.m. on May 30, 2001. Plaintiff further alleged that Dr. Scott’s
negligence directly and proximately caused Ethan to suffer “severe hypoxic ischemia resulting in
his death.” Plaintiff sought damages under the Wrongful Death Act (WDA), MCL 600.2921 et
seq., “including but not limited to conscious pain and suffering of Ethan Baldwin prior to his
death . . . .”
Dr. Scott and HHS moved for summary disposition. HMC concurred in the motion.
Defendants argued that to prevail on her claim, brought under the WDA, plaintiff must establish
that they caused Ethan’s death. Dr. Scott and HHS asserted that plaintiff’s causation experts all
testified that Ethan died due to the administration of morphine combined with extubation, noting
that Ethan could breathe on his own before the administration of morphine. According to Dr.
Scott and HHS, plaintiff’s experts testified that Ethan did not die as a result of their negligence.
Thus, they argued that plaintiff could not establish causation and her action must be dismissed.
Plaintiff responded to the motion for summary disposition. She disagreed in the
assessment of her claim made by defendants. She asserted that her experts testified that Ethan
would not have died in the absence of defendants’ negligence. According to plaintiff’s
interpretation of the experts’ testimony, Ethan suffered brain damage and other injuries as a
result of negligence during labor and delivery and that because of this, he died.
In support of their motion for summary disposition, defendants relied on the deposition of
Dr. Carolyn S. Crawford. Dr. Crawford testified that in her opinion, at the time that the decision
to extubate Ethan was presented to Ethan’s parents, there was insufficient information to
conclude that Ethan would not survive. She believes that if Ethan had been managed differently,
he probably would have survived, although he would have been severely impaired. Dr.
Crawford testified:
So I think that may be where the decision was made by the parents was
that I think the mother was told basically he would be a vegetable if he survived
and they didn’t want that.
1
Ethan’s parents also sought a second opinion, which was consistent with the original
prognosis.
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And he would have been, you know, probably a spastic quadriplegic,
severely developmentally delayed, probably with some—with impairment of
vision and hearing.
Q.
But he would have survived in your opinion, correct?
A.
Yes. If the management had been different, I believe he would
have survived.
Dr. Crawford explained that Ethan’s parents made the decision to terminate life support
based on what the physicians told them. She stated that if life support is discontinued on
someone who receives morphine every few hours, it is likely that the patient’s respiratory status
would be compromised and the patient would die.
Another expert relied upon by defendants was Dr. Robert J. Lerer. Dr. Lerer stated that it
is possible that Ethan died after his parents permitted the removal of life support because his
brain damage increased and affected his respiration. An equally likely explanation, however, is
that at that time Ethan was heavily sedated; sedation diminishes respiratory drive. Dr. Lerer
further testified: “[I]f the baby had been kept on a ventilator for a more extended period of time,
I think the baby eventually could have been weaned off the ventilator, but I think this baby
would have had significant brain injury.”
The trial court heard oral arguments on June 5, 2006 and ruled as follows:
I would agree the wrongful death statute does require that there be evidence of
causation as to the cause of death. I think given the expert testimony by the
plaintiff’s own experts that it’s clear that, in this Court’s opinion, there was a
superseding, intervening cause which brought about the death of the child. The
plaintiff’s own experts have I believe testified, at least two, that had the child not
been reintubated [sic] but had been allowed to be weaned off the ventilator that
this child, although it may have had some deficits, would have survived.
In an order entered June 13, 2006, the trial court granted defendants’ motion for summary
disposition, dismissing the case. Plaintiff moved for reconsideration, arguing that defendants’
conduct was a cause in fact of Ethan’s injury, and that the experts testified that but for
defendants’ negligence, Ethan would not have died. She further argued that the intervening
negligence of Ethan’s subsequent treaters, as well as the decision to discontinue treatment, are
reasonably foreseeable intervening acts that do not constitute a superseding cause to relieve
defendants of liability. She disagreed with defendants’ position that the discontinuation of
treatment caused Ethan’s death. Plaintiff also argued for amendment of her complaint to assert
additional claims of negligence against HMC. Finally, plaintiff argued that she should be
permitted to proceed on a survival action for malpractice against defendants.
Defendants responded to plaintiff’s motion, asserting that based on the testimony of
plaintiff’s experts, who stated that Ethan would have survived had plaintiff and Ethan’s father
not directed termination of treatment, the court correctly dismissed the wrongful-death claim.
Defendants further argued that amendment of the pleadings as requested by plaintiff would be
futile and prejudicial. Finally, defendants argued that to recover for pain and suffering, plaintiff
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would be required to establish causation, which she cannot do. Thus, they asserted, such a claim
should not be permitted.
The court held a hearing on plaintiff’s motion for reconsideration on July 31, 2006. The
court ruled as follows:
[T]he complaint does, in this Court’s opinion, spell out a claim for pain and
suffering due to the failure to perform a cesarean section in a timely manner. And
I think that [plaintiff] has an obstetrician and expert who supports that and to me
that would create a question of fact for a trier of fact as to whether or not the
failure to perform the cesarean section in a timely manner had led to the deceased
child having gone through pain and suffering. A wrongful death claim, or the
death part of the claim which involves the decision to remove the child from the
ventilator, later to medicate the child, place the child back on the ventilator,
something that apparently, the…doctor or they’re not really sure, the
neonatologist or someone discussed with the, with the parents, a decision was
made, as best I can tell with both, in making that decision and as a result the child
expired after being removed from the ventilator and we have experts who later
come and the plaintiff’s own experts and say well, you know, if the child had not
been removed from the ventilator the child probably would have, at least would
have, definitely would have survived, certainly would have had neurological
deficits. So I . . . don’t believe the Court committed a palpable error in ruling that
the wrongful death claim was to be dismissed pursuant to summary disposition
because of the testimony that has been refuted by the plaintiff’s own
neonatologist. However, I do agree with the plaintiff that the Court did make a
palpable error in the comprehensiveness of its decision because that decision
should not have at the same time precluded the plaintiff from going forward on
the survival claim involving the claims, well you say not but on the claim
involving the failure of the doctor to perform the cesarean section in a timely
manner which may have resulted in the deceased child having pain and suffering
that the plaintiff believes that they properly pled.
The court entered its ruling in a January 8, 2007 order. It granted plaintiff’s motion for
reconsideration so as to reinstate plaintiff’s survival claim and granted her leave to file an
amended complaint alleging neonatology negligence against HMC to state a claim for damages
for Ethan’s conscious pain and suffering. Plaintiff and defendants applied for leave to appeal,
and this Court granted their applications on March 2, 2007. Baldwin v Scott, unpublished orders
of the Court of Appeals, entered March 2, 2007 (Docket Nos. 275809 and 275830). This Court
administratively consolidated these cases on March 7, 2007. Baldwin v Scott, unpublished orders
of the Court of Appeals, entered March 7, 2007 (Docket Nos. 275809 and 275830).
II. SUMMARY DISPOSITION
Plaintiff first argues that the trial court erred in granting defendants’ motion for summary
disposition as to her wrongful death claim because there was sufficient evidence to establish a
genuine issue of material fact as to causation. We agree.
A. Standard of Review
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We review a trial court’s decision regarding a motion for summary disposition de novo.
Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). A motion brought under
MCR 2.116(C)(10) tests the factual support for the claim. Id. The moving party has the initial
burden of supporting his position by affidavits, depositions, admissions, or other documentary
evidence. Healing Place at North Oakland Med Ctr v Allstate Ins Co, 277 Mich App 51, 63; 744
NW2d 174 (2007). The party opposing the motion then has the burden of showing by
evidentiary materials that a genuine issue of material fact exists. Coblentz v City of Novi, 475
Mich 558, 569; 719 NW2d 73 (2006). “A genuine issue of material fact exists when the record,
giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which
reasonable minds might differ.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468
(2003). Summary disposition may be granted under MCR 2.116(C)(10) when there is no
genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004).
B. Analysis
The wrongful death act is the exclusive remedy for plaintiffs seeking damages for a
wrongfully caused death. Jenkins v Patel, 471 Mich 158, 164; 684 NW2d 346 (2004). MCL
600.2922(1) provides as follows:
Whenever the death of a person [or] injuries resulting in death . . . shall be
caused by wrongful act, neglect, or fault of another, and the act, neglect, or fault is
such as would, if death had not ensued, have entitled the party injured to maintain
an action and recover damages, the person who or the corporation that would have
been liable, if death had not ensued, shall be liable to an action for damages,
notwithstanding the death of the person injured . . .
However, “‘[t]he mere fact that our legislative scheme requires that suits for tortious conduct
resulting in death be filtered through the so-called “death act”, MCL 600.2922 . . . does not
change the character of such actions except to expand the elements of damage available.’”
Jenkins, supra at 165, quoting Hawkins v Regional Med Laboratories, Inc, 415 Mich 420, 436;
329 NW2d 729 (1982). In other words, “a wrongful death action grounded in medical
malpractice is a medical malpractice action in which the plaintiff is allowed to collect damages
related to the death of the decedent.” Id. at 165-166.
To establish a prima facie case of medical malpractice, plaintiff must prove the following
elements:
(1) the appropriate standard of care governing the defendant’s conduct at the time
of the purported negligence, (2) that the defendant breached that standard of care,
(3) that the plaintiff was injured, and (4) that the plaintiff’s injuries were the
proximate result of the defendant’s breach of the applicable standard of care.
[Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).]
Further, plaintiff has the burden of proving the proximate causation element by a preponderance
of the evidence. Id. Thus, in order to properly support her medical malpractice claim, plaintiff
was required to show that Ethan’s death was proximately caused by defendants’ breaches of the
applicable standards of care. Id.
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“‘Proximate cause’ is a legal term of art that incorporates both cause in fact and legal (or
‘proximate’) cause. ” Id. This Court recently explained cause in fact as follows:
“Generally, an act or omission is a cause in fact of an injury only if the injury
could not have occurred without (or ‘but for’) that act or omission.” [Craig,
supra at 87.] Cause in fact may be established by circumstantial evidence, but the
circumstantial evidence must not be speculative and must support a reasonable
inference of causation. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488,
496; 668 NW2d 402 (2003). “‘All that is necessary is that the proof amount to a
reasonable likelihood of probability rather than a possibility. The evidence need
not negate all other possible causes, but such evidence must exclude other
reasonable hypotheses with a fair amount of certainty.’” Skinner v Square D Co,
445 Mich 153, 166; 516 NW2d 475 (1994), quoting 57A Am Jur 2d, Negligence,
§ 461, p 442. Summary disposition is not appropriate when the plaintiff offers
evidence that shows “that it is more likely than not that, but for defendant’s
conduct, a different result would have obtained.” Dykes v William Beaumont
Hosp, 246 Mich App 471, 479 n 7; 633 NW2d 440 (2001). [Robins v Garg, 276
Mich App 351, 362; 741 NW2d 49 (2007).]
Proximate (or legal) cause, on the other hand, involves the examination of the foreseeability of
consequences, and whether a defendant should be found legally responsible for those
consequences. Skinner, supra at 163. It is defined as that which, in natural and continuous
sequence, unbroken by any independent, unforeseen cause, produces the injury. McMillian v
Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985). More than one proximate cause may exist,
and if several factors contribute to produce an injury, “one actor’s negligence will not be
considered the proximate cause of the harm unless it was a substantial factor in producing the
injury.” Brisboy v Fibreboard Corp, 429 Mich 540, 547; 418 NW2d 650 (1998). The
determination of proximate cause is a factual issue to be decided by the finder of fact. Nichols v
Dobler, 253 Mich App 530, 532; 655 NW2d 787 (2002).
In making its decision that plaintiff could not establish the element of causation because
the decision to remove Ethan from life support was an intervening, superseding cause, the trial
court relied on the testimony of two of plaintiff’s experts, Dr. Crawford and Dr. Lerer. While
Dr. Crawford did testify that if Ethan had been managed differently, he probably would have
survived, when she made this statement, she was not responding to questions regarding her
opinion about the cause of Ethan’s death. Rather, she was being asked whether Ethan had any
chance of survival if his parents had not decided to extubate him. Further, she did confirm that
Ethan suffered from “[h]ypoxia, ischemia, and trauma” caused by “[u]teroplacental
insufficiency; injudicious Pitocin; injudicious vacuum use; trauma; wedging; getting the head
jammed into the bony pelvis, with repeated contractions. . . .” She also agreed that it is
“probably true” that Ethan would have died at birth if he was not resuscitated.
Dr. Lerer’s causation testimony is not as clear as Dr. Crawford’s. At one point, when
asked what caused Ethan’s death, Dr. Lerer responded that “this baby had a severe acute brain
injury that caused the death.” Later, he stated, “I think the cause of death was acute peripartum
asphyxia resulting in hypoxic ischemic insult that involved the brain. The degree of brain
damage was acute and very severe, and eventually led to the baby’s death through a decision to
discontinue life support.” Dr. Lerer further testified that it is possible that Ethan died after his
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parents permitted the removal of life support because his brain damage increased and affected his
respiration. But he also noted that an equally likely explanation is that at that time Ethan was
removed from life support, he was heavily sedated; and sedation diminishes respiratory drive.
Dr. Lerer further testified: “[I]f the baby had been kept on a ventilator for a more extended
period of time, I think the baby eventually could have been weaned off the ventilator, but I think
this baby would have had significant brain injury.” But, again, he was not being questioned
about causation, but rather about his opinion as to what life would have been like if Ethan had
lived. Still later, he said that Ethan “probably” would have been able to be weaned from the
ventilator. Dr. Lerer also opined that Ethan would not have lived after birth without life support.
Finally, Dr. David Burkons, plaintiff’s expert obstetrician,2 testified as to causation as
follows:
Q. Now, with regard to any causation opinions you have, are you going to get
into opinions about if the baby had been born at such and such time, there
would have been different gradations of injuries, or would you defer to the
neonatologists or pediatric neurologists?
A. What I’m going to say is that anytime thereafter – again, assuming the course
that was taken here, Pitocin continued, Pitocin continued after 1600, the baby
would have been – probably maybe upto the time of the vacuum the baby
might have survived, but there would have been some gradation of deficit.
***
Q. Let me ask it this way. In your opinion, what was the cause of the baby’s
death, if you have such an opinion.
A. Hypoxia, hypoxemia, asphyxia of the baby that was caused by – it was caused
by uteroplacental insufficiency aggravated by excessive Pitocin use and the
vacuum extractor.
We conclude that the above testimony creates a question of fact regarding whether
defendants’ negligence caused Ethan’s death, and the trial court erred in granting defendants’
motion for summary disposition. At minimum, Dr. Burkons’s testimony supports plaintiff’s
theory that but for defendants’ failure to timely delivery Ethan, he would have survived. In other
words, that defendants’ conduct caused that condition that led to Ethan’s death. Further, Dr.
Lerer’s testimony also lends some support to plaintiff’s theory of causation. Therefore, because
reasonable minds could differ as to whether “but for” defendants’ conduct during labor and
2
Dr. Scott and HHS attempt to discredit Dr. Burkons’s testimony by stating that he deferred to
Dr. Crawford on the issue of causation. However, we find this assertion somewhat disingenuous.
At his deposition, Dr. Burkons admitted he was less qualified than a neonatologist to opine on
causation, but did not agree to defer on the issue.
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delivery, Ethan would have survived, Robins, supra at 362, and as to whether defendants’
conduct was a substantial factor in bringing about Ethan’s death, Brisboy, supra at 547, summary
disposition should not have been granted by the trial court.
Moreover, we do not believe that the subsequent medical treatment and eventual decision
to discontinue life support are superseding causes that would cut off defendants’ liability. An
unforeseen intervening cause may break the chain of proximate causation. “An intervening
cause breaks the chain of causation and constitutes a superseding cause which relieves the
original actor of liability, unless it is found that the intervening act was ‘reasonably
foreseeable.’” McMillian, supra at 576. When a defendant’s negligence consisted of enhancing
the likelihood that the intervening cause would occur, the intervening cause is considered to be
reasonably foreseeable. Meek v Dep’t of Transportation, 240 Mich App 105, 120-121; 610
NW2d 250 (2000), overruled on other grounds Grimes v Dep’t of Transportation, 475 Mich 72
(2006). An act of negligence does not cease to be a proximate cause of the injury because of an
intervening act of negligence, if the prior negligence is still operating and the injury is not
different in kind from that which would have resulted from the prior act.” Taylor v Wyeth
Laboratories, Inc, 139 Mich App 389, 401-402; 362 NW2d 293 (1984). Finally, whether an
intervening act constitutes a superseding cause is also typically a question for the factfinder.
Meek, supra at 118.
Again, plaintiff’s experts all testified that defendants’ conduct during labor and delivery
caused hypoxic ischemia, which resulted in Ethan’s brain damage and respiratory difficulties.
Given Ethan’s poor condition at birth, additional medical care and treatment were foreseeable
and, therefore, not a superseding cause. Indeed, “negligent medical treatment of an injury is
foreseeable and is ordinarily not a superseding cause that cuts off the causal contribution of the
act that caused the injury.” Shinholster v Annapolis Hosp, 471 Mich 540, 573-574; 685 NW2d
275 (2004) (MARKMAN, J. concurring). Likewise, the parents’ decision to remove Ethan from
life support cannot be considered a superseding cause. Our Supreme Court has approved this
Court’s holding that a decision to terminate life support is not the cause of a patient’s subsequent
death; rather, it merely allows the injury or illness to take it’s natural course. People v Bowles,
461 Mich 555, 560; 607 NW2d 715 (2000). Although Bowles is a criminal case, its holding is
applicable here, where defendants’ alleged negligence necessitated the use of life support in the
first place. It seems illogical to relieve defendants of liability when a decision is made to remove
the support, and death, which plaintiff’s experts testified would have incurred in the first place if
it were not for medical intervention, eventually ensues.
For all of these reasons, we conclude that the trial court erred in granting defendants’
motion for summary disposition, and its June 13, 2006 order is reversed.3
III. AMENDMENT OF COMPLAINT
3
In light of our conclusion, we need not address the parties’ arguments regarding the trial
court’s reinstatement of plaintiff’s survival claim.
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Defendants argue that the trial court erred in granting plaintiff’s motion to amend her
complaint to add claims against Ethan’s neonatologists because any such amendment would be
prejudicial and futile. Conversely, plaintiff asserts that while the amendment was properly
granted, the trial court’s limiting of her neonatology claim to a survival claim for pain and
suffering damages only was erroneous.
A. Standard of Review
“This Court reviews a trial court’s decision to permit a party to amend [its] pleadings for
an abuse of discretion.” In re Estate of Kostin, 278 Mich App 47, 51; 748 NW2d 583 (2008). If
the trial court’s decision falls within a range of reasonable and principled outcomes, then the trial
court has not abused its discretion. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
NW2d 809 (2006). “The question whether a proposed amendment relates back to the original
complaint represents an issue of law that is reviewed by this Court de novo on appeal.” Doyle v
Hutzel Hosp, 241 Mich App 206, 212; 615 NW2d 759 (2000).
B. Analysis
Under MCR 2.118(A)(2), “a party may amend a pleading only by leave of the court . . .
Leave shall be freely given when justice so requires.” Trial courts have discretion to grant or
deny motions for leave to amend, but may deny motions only for particular reasons, such as (1)
undue delay (2) bad faith; (3) dilatory motive on the movant’s part; (4) repeated failures to cure
deficiency by amendments previously allowed; (5) undue prejudice to the opposing party, and
(6) futility. In re Estate of Kostin, supra at 52.
In regard to undue delay, “[d]elay, alone, does not warrant a denial of a motion to amend.
However, a court may deny a motion to amend if the delay was in bad faith or if the opposing
party suffered actual prejudice as a result.” Weymers v Khera, 454 Mich 639, 659; 563 NW2d
647 (1997) (internal citation omitted). Prejudice “exists if the amendment would prevent the
opposing party from receiving a fair trial, if for example, the opposing party would not be able to
properly contest the matter raised in the amendment because important witnesses have died or
necessary evidence has been destroyed or lost.” Id. at 659-660.
The statute of limitations for medical malpractice claims is addressed in MCL 600.5852,
which states, “[A]n action which survives by law may be commenced by the personal
representative of the deceased person at any time within 2 years after letters of authority are
issued although the period of limitations has run. But an action shall not be brought under this
provision unless the personal representative commences it within 3 years after the period of
limitations has run.” If, however, the complaint is later amended to add additional claims which
arise out of the same conduct or transaction in the original pleading, the amendment relates back
to the date of the original pleading, and is not considered a separate action for statute-of
limitations purposes. See MCR 2.118(D).
MCR 2.118(D) provides that “[a]n amendment that adds a claim or a defense relates back
to the date of the original pleading if the claim or defense asserted in the amended pleading arose
out of the conduct, transaction or occurrence set forth, or attempted to be set forth, in the original
pleading.” An amended pleading can introduce new facts, new theories, and new causes of
action if they arise from the same transactional setting as was set forth in the original pleading.
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Doyle, supra at 212-213. The purpose of relation back doctrine “as a means of defeating the
statute of limitation is the desire of the courts not to have valid claims avoided by legal
technicalities.” Smith v Henry Ford Hosp, 219 Mich App 555, 558; 557 NW2d 154 (1996).
As to defendants’ argument that the trial court erred in granting plaintiff’s motion to
amend her complaint, we disagree. Again, leave to amend should be freely given and should
only be denied “for particularized reasons such as undue delay, bad faith or dilatory motive,
repeated failures to cure amendments previously allowed, or futility.” In re Estate of Kostin,
supra at 52. Here, none of these reasons apply.
While there was a delay in moving for leave to amend in this case, delay without
prejudice will not suffice, Weymers, supra at 659, and defendants fail to show how they have
been prejudiced by the delay in this case. Defendants refer this Court to Weymers, supra and
Dacon v Transue, 441 Mich 315; 490 NW2d 369 (1992), to support their contention that leave to
amend should have been denied because the addition of the new claim in this case is unduly
prejudicial to defendants.
In Weymers, supra at 659-660, our Supreme Court held that
a trial court may find prejudice when the moving party seeks to add a new claim
or a new theory of recovery on the basis of the same set of facts, after discovery
has closed, just before trial, and the opposing party shows that he did not have
reasonable notice, from any source, that the moving party would rely on the new
claim or theory at trial.
However, Weymers and Dacon are distinguishable from the instant action because the plaintiffs
in those cases sought amendments at a much later, and therefore much more prejudicial, stage in
the proceedings—either on the eve of trial (Weymers) or at the trial itself (Dacon). Further,
defendants in this case, while not formally on notice, were aware of the potential for a
neonatology claim as early as Dr. Crawford’s deposition in March 2006, when she testified that
she believed the neonatologists breached the standard of care.
Finally, we reject defendants’ argument that plaintiff’s request for amendment should
have been denied as futile because it appears that plaintiff’s claim against the neonatologists
would relate back to her original complaint and not be timed barred because even though
plaintiff is asserting a new claim, it arises from the same transactional setting as was set forth in
her original complaint. Doyle, supra at 212-213.
Accordingly, because the trial court’s decision to grant leave to amend was within the
range of reasonable and principled outcomes, the trial court did not abuse its discretion in
allowing plaintiff to amend her complaint to add the neonatology claim, and we affirm that
portion of its January 8, 2007 order.
Turning now to plaintiff’s argument—that the trial court erred in limiting her
neonatology claims to pain and suffering damages only—plaintiff has failed to support her
argument with any citation to authority. Therefore, her argument is abandoned an appeal. Berger
v Berger, 277 Mich App 700, 715; 747 NW2d 336 (2008) (noting that a party who fails to cite
any supporting legal authority for his position has abandoned the issue on appeal).
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Affirmed in part, reversed in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Kirsten Frank Kelly
/s/ Donald S. Owens
/s/ Bill Schuette
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