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Robin DECKER, as Next Friend of Eric Decker, Plaintiff-Appellee, v. Michael STOIKO, M.D., Spectrum Health Hospitals, Inc. d/b/a Butterworth Hospital, and Spectrum Health Hospitals, Inc. d/b/a Devos Children's Hospital, Defendants-Appellants, Michael Rochowiak, D.O., Alberto Betancourt, M.D., Carson City Hospital d/b/a Center For Women's Health Care, and Carson City Hospital, Inc., Defendants-Appellees,
Blue Cross Blue Shield, Intervening Plaintiff. Robin Decker, as Next Friend of Eric Decker, Plaintiff-Appellee, v. Michael Rochowiak, D.O., Alberto Betancourt, M.D., Carson City Hospital d/b/a Center for Women's Health Care, and Carson City Hospital, Inc., Defendants-Appellees,
Michael Stoiko, M.D., Spectrum Health Hospitals, Inc. d/b/a Butterworth Hospital, and Spectrum Health Hospitals, Inc. d/b/a Devos Children's Hospital, Defendants-Appellants. Robin Decker, as Next Friend of Eric Decker, Plaintiff-Appellee/Cross-Appellee, v. Michael Rochowiak, D.O., Alberto Betancourt, M.D., Carson City Hospital d/b/a Center for Women's Health Care, and Carson City Hospital, Inc., Defendants-Appellees/Cross-Appellants, Michael Stoiko, M.D., Spectrum Health Hospitals, Inc. d/b/a Butterworth Hospital, and Spectrum Health Hospitals, Inc. d/b/a Devos Children's Hospital, Defendants-Appellants.
In Docket Nos. 284155 and 285870, defendants Michael Stoiko, M.D., Spectrum Health Hospitals, Inc. d/b/a Butterworth Hospital, and Spectrum Health Hospitals, Inc. d/b/a DeVos Children's Hospital (the Spectrum defendants), appeal by leave granted an order granting plaintiff, Robin Decker, as next friend of Eric Decker, leave to amend her medical malpractice complaint, and an order denying the Spectrum defendants' motion for partial summary disposition with regard to those claims added by amendment. We affirm.
In Docket No. 290633, the Spectrum defendants appeal by leave granted an order denying their motion for summary disposition which challenged the sufficiency of plaintiff's notice of intent (NOI), and the expert support for plaintiff's nursing malpractice claims. Also in Docket No. 290633, defendants Michael Rochowiak, D.O., Alberto Betancourt, M.D., Center for Women's Healthcare, and Carson City Hospital (the Carson City defendants), challenge on cross-appeal an order denying their motion for joinder and concurrence in the Spectrum defendants' motion for summary disposition with regard to the sufficiency of plaintiff's NOI. We affirm.
These consolidated interlocutory appeals arise out of defendants' care and treatment of Eric Decker (Eric), who was born on July 17, 1996, at defendant Carson City Hospital. Plaintiff has averred that Eric was born by vacuum delivery necessitated by fetal distress. He was not seen by a pediatrician. Although his bilirubin was elevated and he started becoming reluctant to feed, Eric was discharged the next day, on July 18, 1996.
On July 19, 1996, Eric was taken back to Carson City Hospital because he was lethargic and reluctant to feed. After being diagnosed with persistent hypoglycemia and jaundice caused by an elevated bilirubin, he was airlifted to DeVos Children's Hospital on Spectrum Health's Butterworth campus for medical management in the pediatric intensive care unit (PICU). Upon arrival, it was determined that Eric was profoundly hypoglycemic with a critically low glucose level of 4, where an acceptable range appears to be 60 to 100 mg/dl. A subclavian venous catheter was inserted to infuse glucose solutions. Although his blood glucose level increased somewhat for a short period of time, it remained dangerously low. Seizure activity was noted.
A brain CT scan performed on July 20, 1996, revealed an extensive hypoxic ischemic brain injury and hemorrhages. Eric's condition continued to deteriorate, culminating in a cardiac arrest. During the resuscitation efforts, it was determined that the subclavian venous catheter was not in the vein. Thus, the fluid that had been infused through it did not go into Eric's bloodstream, but his chest cavity. The large amount of fluid in Eric's chest cavity interfered with the ability of Eric's heart to beat-a condition known as cardiac tamponade-which led to his cardio-pulmonary arrest. After a functioning femoral vein catheter was placed, Eric stabilized. He remained hospitalized through September 2, 1996. Eric has been diagnosed with cerebral palsy from an early anoxic (lack of oxygen) brain injury. He is developmentally delayed, suffers from sensory deficits, and is legally blind.
On September 23, 2004, plaintiff served her NOI on defendants as required by MCL 600.2912b, and on June 5, 2006, she filed her medical malpractice case with supporting affidavits of merit. On January 9, 2008, plaintiff moved for leave to file an amended complaint that alleged 17 specific ways in which the Spectrum defendants breached the applicable standards of care. Plaintiff argued that the amendment was proper because (1) discovery remained open and experts had not been deposed, (2) the amendment merely clarified allegations and issues which was possible after particular information was learned through the discovery process, (3) the clarifications “ultimately relate[ ] back to the underlying lynch pin of this entire case which is that they did not appropriately monitor and maintain this baby's glucose level,” and (4) defendants would not be prejudiced by the amendment.
The Spectrum defendants opposed plaintiff's motion to amend, arguing that (1) plaintiff had not shown why “justice” required that leave be granted under MCR 2.118(A)(2) in light of the inexcusable delay in bringing such claims that were discernable from inception; (2) plaintiff failed to raise these new theories in her NOI as required by MCL 600.2912b, thus such claims were barred by the statute of limitations; and (3) defendants would be unduly prejudiced if plaintiff were allowed to amend her complaint to add these new allegations. Oral arguments were heard on January 31, 2008. The trial court agreed with plaintiff's arguments, and granted plaintiff's motion for leave to file an amended complaint. Thereafter, plaintiff served on defendants a supplemental NOI containing the additional allegations. A written order granting plaintiff's motion was entered on February 19, 2008, and plaintiff filed her amended complaint on February 28, 2008. On March 11, 2008, under Docket No. 284155, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's February 19, 2008, order.
On April 8, 2008, the Spectrum defendants moved for partial summary disposition, seeking dismissal of the 17 allegations raised in plaintiff's amended complaint. Defendants essentially reiterated the arguments they made in opposition to plaintiff's motion to amend, including that the specific allegations were not identified in the NOI and were barred from being added to this lawsuit by the expiration of the statute of limitations. Defendants also contested the fact that plaintiff did not wait 182 days after serving the supplemental NOI before filing the amended complaint. The trial court heard oral arguments on April 24, 2008, and agreed with plaintiff's arguments. An order denying defendants' motion was entered on May 19, 2008. On June 9, 2008, under Docket No. 285870, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's May 19, 2008, order.
On September 8, 2008, this Court granted the Spectrum defendants' applications for leave to appeal in Docket Nos. 284155 and 285870, and the cases were administratively consolidated. See Decker v. Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 284155), amended September 18, 2008; Decker v. Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 285870), amended September 18, 2008.
On November 26, 2008, while Docket Nos. 284155 and 285870 were pending on appeal, the Spectrum defendants again for moved for summary disposition in the trial court. They moved for summary dismissal as to all of plaintiff's claims, arguing that plaintiff's initial NOI failed to contain a statement of proximate cause detailing the manner in which defendants' alleged negligence resulted in Eric's injuries as required by MCL 600.2912b(4)(e). The Spectrum defendants also moved for summary disposition as to plaintiff's nursing malpractice claims. They asserted that (1) plaintiff's only expert witness could not testify because she improperly relied upon a national, rather than local, standard of care with regard to these claims, and (2) plaintiff's expert was not qualified to testify in support of plaintiff's negligent charting claims. The Carson City defendants joined the motion for summary disposition, challenging the sufficiency of the statement of causation in plaintiff's NOI. Plaintiff opposed the motions.
On December 19, 2008, oral arguments were held. The trial court rejected defendants' claims that plaintiff's NOI was deficient, holding that “reading it in its entirety it describes the manner in which the various breaches of standard of care were the proximate cause of the injuries and I'll also adopt by reference the arguments of [plaintiff's counsel] and his brief in connection with that.” The court also rejected the Spectrum defendants' challenge to plaintiff's nursing malpractice claims, holding that the expert seemed to testify that the national standard of care and the local standard of care were the same and, with regard to the charting claim, “the standard of care determines what the nurses should do, not whether the hospital form provides for it.” After noting that it was adopting the arguments and brief of plaintiff, the trial court denied defendants' motions. On February 9, 2009, an order denying the Spectrum defendants' motion for summary disposition was entered.
On March 2, 2009, under Docket No. 290633, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's February 9, 2009, order. On May 5, 2009, this Court granted the Spectrum defendants' application for leave to appeal, and administratively consolidated the case with Docket Nos. 284155 and 285870. See Decker v. Rochowiak, unpublished order of the Court of Appeals, entered May 5, 2009 (Docket No. 290633). On May 26, 2009, the Carson City defendants filed with this Court their claim of cross appeal. On June 4, 2009, the trial court entered an order denying the Carson City defendants' motion for joinder and concurrence in the Spectrum defendants' motion for summary disposition with regard to the sufficiency of plaintiff's NOI.
I. DOCKET NOS. 284155 AND 285870
The Spectrum defendants argue that the trial court erred in denying their motion for partial summary disposition as to 17 “new” allegations raised in plaintiff's first amended complaint. More specifically, defendants argue that these allegations should have been dismissed because they were not raised in plaintiff's NOI and are barred by the statute of limitations. We disagree.
We review de novo the grant or denial of a motion for summary disposition. Kreiner v. Fischer, 471 Mich. 109, 129, 683 N.W.2d 611 (2004). Likewise, issues of court rule and statutory interpretation, as well as whether a statute of limitations bars a claim, are reviewed de novo. Estes v. Titus, 481 Mich. 573, 578-579, 751 N.W.2d 493 (2008); Farley v. Advanced Cardiovascular Health Specialists, PC, 266 Mich.App. 566, 570-571, 703 N.W.2d 115 (2005).
A medical malpractice action cannot be filed until a plaintiff complies with MCL 600.2912b, which provides:
(1) 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.
* * *
(4) 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.
The purpose of the notice requirement was explained in Neal v. Oakwood Hosp. Corp., 226 Mich.App. 701, 575 N.W.2d 68 (1997), as follows:
The 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 that might otherwise be precluded from recovery because of litigation costs. [Id. at 705, 575 N.W.2d 68, citing Senate Legislative Analysis, SB 270, August 11, 1003; House Legislative Analysis, HB 4403-4406, March 22, 1993; see, also, Bush v. Shabahang, 484 Mich. 156, 174, 772 N.W.2d 272 (2009).]
Once notice is given in compliance with MCL 600.2912b, the two-year limitations period is tolled during the notice period. MCL 600.5856(c). But a medical malpractice plaintiff has the burden of showing compliance with the requirements of MCL 600.2912b in order to toll the statute of limitations. Roberts v. Mecosta Co. Gen. Hosp. (After Remand), 470 Mich. 679, 686, 691, 684 N.W.2d 711 (2004).
Here, the Spectrum defendants argue that plaintiff's NOI did not include 17 specific allegations that she raised in her first amended complaint; thus, those “theories of malpractice liability that are not encompassed within her NOI” should have been summarily dismissed. We disagree.
The NOI, examined as a whole, must advise “potential malpractice defendants of the basis of the claims against them.” Roberts (After Remand), 470 Mich. at 696 n. 14, 684 N.W.2d 711; Boodt v. Borgess Med. Ctr., 272 Mich.App. 621, 628, 630, 728 N.W.2d 471 (2006), rev'd in part on other grounds 481 Mich. 558, 564, 751 N.W.2d 44 (2008). However, because the NOI comes at an early stage of the malpractice claim, the plaintiff does not have to craft the notice “with omniscience.” Roberts (After Remand), 470 Mich. at 691, 684 N.W.2d 711. Rather, the plaintiff must “make good-faith averments that provide details that are responsive to the information sought by the statute and are as particularized as is consistent with the early notice stage of the proceedings.” Id. at 701, 684 N.W.2d 711 (emphasis in original). The NOI must “set forth allegations in good faith, in a manner that is responsive to the specific queries posed by the statute, and with enough detail to allow the potential defendants to understand the claimed basis of the impending malpractice action․” Id. at 691-692 n. 7, 684 N.W.2d 711.
Considered as a whole, plaintiff's NOI clearly set forth as the claimed basis of her impending malpractice action against the Spectrum defendants their alleged failure to properly care for, evaluate, treat, and monitor Eric's hypoglycemic condition, including by the proper and timely administration of the necessary glucose solutions through a properly placed central venous line. The NOI also asserted that the hospital, as well as the registered nurses and the physicians who were involved in Eric's medical management, were liable for Eric's resulting injuries. Contrary to the Spectrum defendants' argument, plaintiff's subsequently filed amended complaint did not assert any “new” potential causes of injury.
More specifically, with regard to the registered nurses, plaintiff's NOI set forth, in ¶ C(j), (k), (l), (m), (n), (q), and (r), their alleged failures to (1) properly monitor Eric's glucose levels and the status of the central line in light of his medical history and condition, (2) provide the necessary care to Eric, (3) timely and completely record, apprise, and report to physicians and other providers with regard to Eric's condition, and (4) seek consultations with, or provide referrals to, qualified specialists. The contested claims in plaintiff's amended complaint with regard to the nurses, as set forth in ¶ 42(ll), (mm), (nn), (oo), (pp), (qq), (rr), (ss), and (tt), included failures to (1) check Eric's blood sugar between 1313 and 1601 in violation of an order that it be checked every hour, (2) administer Glucagon, potassium, and a bolus of glucose in a timely manner and/or as ordered, (3) timely report to physicians Eric's changed and decreased heart rate, respiratory rate, and oxygen saturation, (4) timely report problems with the central line and Eric's seizure activity, (5) execute a change from Dextrose to D-25 as ordered, and (6) timely report a drop in blood sugar on July 20, from 90 at 0400 to 48 at 0507 to 37 at 0550. Plaintiff's NOI clearly provided the Spectrum defendants with adequate notice of the basis of her claims against the registered nurses involved in Eric's medical management.
With regard to the physicians who were involved in Eric's medical management, plaintiff's NOI set forth, in ¶ C(a), (c), (d), (e), (f), (h), (i), (l), (m), (n), (r), (t), (u), (z), and (aa), their alleged failures to (1) properly place the central line and verify its placement as well as continued function, (2) properly monitor Eric's glucose levels and the status of the central line in light of his medical history and condition, (3) conduct proper, complete, and necessary examinations and diagnostic tests, (4) properly and timely observe, diagnose, and treat his medical conditions, (5) seek consultations with, or provide referrals to, qualified specialists, (6) timely and completely record, apprise, and report to other treating physicians, Eric's condition, and (7) supervise, advise, and/or instruct non-physician personnel. The contested claims in plaintiff's amended complaint with regard to the physicians, as set forth in ¶ 42(dd), (ee), (ff), (gg), (hh), (ii), (jj), and (kk), included failures to (1) immediately treat Eric's hypoglycemic condition with intravenous fluids, including Dextrose, (2) properly place the central line, (3) verify the central line's placement and continued function, particularly in light of Eric's declining condition and the diagnostic results, (4) properly and timely respond to the problems the registered nurses were experiencing with the central line, and (5) properly and timely respond to and treat the decreases in Eric's blood sugar. Again, plaintiff's NOI clearly provided the Spectrum defendants with adequate notice of these claims against the physicians involved in Eric's medical management. And, as the trial court noted, the allegations in plaintiff's amended complaint merely set forth more specific details, clarifying plaintiff's claims against the Spectrum defendants, including the registered nurses and physicians involved in Eric's medical management.
In support of their claim that plaintiff's amended complaint asserted new “theories of malpractice liability” that should have been summarily dismissed for lack of notice, defendants rely on Gulley-Reaves v. Baciewicz, 260 Mich.App. 478, 679 N.W.2d 98 (2004). That reliance is misplaced because the facts in Gulley-Reaves are clearly distinguishable. In that case, the plaintiff's NOI set forth as the basis of her claim a particular surgical procedure that resulted in damage to her vocal cords which “likely occurred because of the inexperience of the medical students or resident, who actually performed the procedure.” Id. at 480, 679 N.W.2d 98. However, when the plaintiff filed her complaint, she included claims based on the anesthesia that was administered during the surgery. Id. at 481, 679 N.W.2d 98. A motion for summary disposition premised on the failure to comply with MCL 600.2912b with respect to the anesthesia claim was denied. Id. at 484, 679 N.W.2d 98. This Court reversed, holding that “the notice did not set forth the minimal requirements to identify that the anesthesia was a potential cause of plaintiff's injury.” Id. at 487, 679 N.W.2d 98. Further, in light of the purpose of the notice requirement to promote settlement without the need for formal litigation, “[d]efendant hospital was not given the opportunity to engage in any type of settlement negotiation with regard to the anesthesia claims because it was not given notice of the existence of any such claim.” Id. at 488, 679 N.W.2d 98.
In the case before us, the basis of plaintiff's claim was that the Spectrum defendants failed to properly care for, evaluate, treat, and monitor Eric's hypoglycemic condition, including by the proper and timely administration of the necessary glucose solutions through a properly placed central venous line. Unlike the plaintiff in Gulley-Reaves, plaintiff's amended complaint did not allege any other potential cause of Eric's injury. The basis of her claims against the Spectrum defendants was their failure to properly care for, evaluate, treat, and monitor Eric's hypoglycemic condition, including by the proper and timely administration of the necessary glucose solutions through a properly placed central venous line. Thus, the purpose of the notice requirement was realized-the Spectrum defendants were given the opportunity to engage in settlement negotiations with regard to these claims because they were given notice of the same claims. Accordingly, the trial court properly denied the Spectrum defendants' motion for summary disposition as to the contested allegations raised in plaintiff's first amended complaint.
For the same reasons, we reject the Spectrum defendants' argument that plaintiff did not make a good-faith effort to identify and provide notice of the “new” allegations of malpractice. The basis of the claims against these defendants did not change. The allegations in the amended complaint merely clarified with more specificity the manner in which the standards of care were breached which could be discerned more clearly with the aid of the discovery process. This is not a case where, as in Gulley-Reaves, the plaintiff set forth a totally new and different potential cause of injury in an amended complaint compared to the potential cause of injury set forth in her NOI, e.g., the manner in which a particular surgical procedure was performed compared to the manner in which anesthesia was administered during the surgery.
Further, the Spectrum defendants' argument that plaintiff's amended complaint should have been dismissed because it was filed before the 182-day waiting period set forth in MCL 600.2912b(1) had expired is without merit. The amended complaint did not name new defendant parties, MCL 600.2912b(3), and it did not set forth any new potential causes of injury. Thus, plaintiff was only required under MCL 600.2912b(1) to provide the statutory notice before she commenced her lawsuit against these same defendants and it is undisputed that the requisite notice was provided. Plaintiff was not required to file a second NOI with regard to these defendants after she was granted leave to file her amended complaint, a complaint which merely clarified plaintiff's claims against the Spectrum defendants. The purpose of the notice requirement-to promote settlement without the need for formal litigation-cannot be realized under these circumstances. See Neal, 226 Mich.App. at 705, 575 N.W.2d 68.
Next, the Spectrum defendants argue that plaintiff should not have been granted leave to amend her complaint. We disagree. “This Court reviews a trial court's decision to permit a party to amend its pleadings for an abuse of discretion.” In re Kostin Estate, 278 Mich.App. 47, 51, 748 N.W.2d 583 (2008). An abuse of discretion occurs when the decision results in an outcome that falls outside the range of principled outcomes. Maldonado v. Ford Motor Co., 476 Mich. 372, 388, 719 N.W.2d 809 (2006).
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 leave “should ordinarily be denied only for particularized reasons such as undue delay, bad faith or dilatory motive, repeated failures to cure by amendments previously allowed, or futility.” In re Kostin Estate, 278 Mich.App. at 52, 748 N.W.2d 583. In regard to undue delay, “[d]elay, alone, does not warrant 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 N.W.2d 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, 563 N.W.2d 647.
The Spectrum defendants first argue that plaintiff should not have been permitted to amend her complaint to add the 17 allegations discussed above because the requisite notice was not provided. However, in light of our conclusion that these allegations were encompassed within plaintiff's NOI, this argument is without merit. Next, the Spectrum defendants argue that the amendment resulted in undue prejudice because it unfairly imposed upon them “a significant expenditure of time and money.” Again, this argument is unavailing. The allegations throughout this lawsuit were clearly set forth-the Spectrum defendants failed to properly care for, evaluate, treat, and monitor Eric's hypoglycemic condition, including by the proper and timely administration of the necessary glucose solutions through a properly placed central venous line. Accordingly, the trial court's decision to grant leave to amend was within the range of reasonable and principled outcomes and did not constitute an abuse of discretion.
II. DOCKET NO. 290633
By direct appeal and cross appeal, respectively, the Spectrum defendants and the Carson City defendants argue that the trial court erred in denying their motions for summary disposition premised on their claims that the statement of causation in plaintiff's NOI failed to satisfy MCL 600.2912b. After de novo review of the trial court's decision to deny the motions for summary disposition, we disagree. See Kreiner, 471 Mich. at 129, 683 N.W.2d 611. Whether an NOI complies with the statutory requirements is reviewed de novo as a question of law. Jackson v. Detroit Med. Ctr., 278 Mich.App. 532, 545, 753 N.W.2d 635 (2008).
Among the statutorily enumerated items required to appear in an NOI is a causation statement. MCL 600.2912b(4)(e); see, also, Tousey v. Brennan, 275 Mich.App. 535, 539, 739 N.W.2d 128 (2007). More specifically, the plaintiff must state 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.” MCL 600.2912b(4)(e). To satisfy this requirement, the notice must contain specific allegations regarding the conduct of the named defendants. Roberts (After Remand), 470 Mich. at 701, 684 N.W.2d 711. It is not sufficient to state that defendants' negligence caused the alleged harm. Rather, plaintiff must describe the manner in which the alleged breach caused the complained of injury. Id. at 699-700 n. 16, 684 N.W.2d 711; see, also, Boodt, 481 Mich. at 560, 751 N.W.2d 44.
In this case, plaintiff's NOI contained the following causation statement:
As a result of the failure of the defendants to take the actions identified in paragraph “C” Eric Decker suffers from cerebral palsy. He is developmentally delayed. He has difficulty walking and has limited use of his extremities. He has articulation delays. He has sensory deficits including being legally blind.
However, the notice must be read in its entirety. Boodt, 481 Mich. at 560, 751 N.W.2d 44. We conclude that the NOI, read as a whole and in conjunction with the underlying facts, clearly describes the manner in which the alleged breaches of the standard of care by the Carson City defendants and the Spectrum defendants were the proximate cause of Eric's injuries.
Plaintiff's NOI indicates that the Carson City defendants delivered Eric by vacuum extraction while he was in distress without a pediatrician present and discharged him within 24 hours without being properly evaluated and despite having an elevated bilirubin, hypoglycemia, and becoming reluctant to feed. The NOI asserts that “[t]hese problems would have been detected and corrected had Eric not been discharged on the 18th after 24 hours.” Because of the Carson City defendants' negligent failure to detect and correct the problems, plaintiff alleged, Eric's medical condition deteriorated and he became profoundly hypoglycemic, necessitating extensive and intensive medical intervention. A CT of his brain “indicated extensive hypoxic ischemic injury of the posterior and possible the frontal cerebrum. Left [b]asal ganglia and extra-axial hemorrhages were identified with blood over the tentorium, the temporal regions and the sub-arachnoid spaces.” Plaintiff also alleged that the Spectrum defendants failed to properly care for, evaluate, treat, and monitor Eric's profound hypoglycemia considering his medical history, declining condition, and test results. According to plaintiff, the Spectrum defendants' negligence caused Eric's continued and progressive hemodynamic and cardio-pulmonary deterioration that culminated in a cardio-pulmonary arrest and the development of a large pneumothorax, which caused more complications that eventually required surgical repair. The NOI continues that “Eric has been diagnosed with Cerebral Palsy from early anoxic injury,” has sensory deficits, is developmentally delayed, and is legally blind.
Contrary to defendants' contention that the NOI contains no description of how the harm to Eric was caused, we are clearly able to discern from the NOI the manner in which it is alleged the breaches of the standard of practice or care proximately caused the injuries claimed in the notice. See MCL 600.2912b(e). Thus, the trial court properly denied defendants' motions for summary disposition premised on this ground.
Next, the Spectrum defendants argue that the trial court erred in denying their motion for summary disposition as to plaintiff's nursing malpractice claims because plaintiff's expert reviewed the case “in light of a ‘national’ standard of care;” thus the claim is unsupported by expert testimony. We disagree.
“ ‘In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) the breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury.’ “ Wiley v. Henry Ford Cottage Hosp., 257 Mich.App. 488, 492, 668 N.W.2d 402 (2003), quoting Wischmeyer v. Schanz, 449 Mich. 469, 484, 536 N.W.2d 760 (1995). Expert testimony is required to establish the standard of care and to demonstrate the defendant's alleged failure to conform to that standard. Birmingham v. Vance, 204 Mich.App. 418, 421, 516 N.W.2d 95 (1994). “A party offering the testimony of an expert witness must demonstrate the witness' knowledge of the applicable standard of care.” Bahr v. Harper-Grace Hosps., 448 Mich. 135, 141, 528 N.W.2d 170 (1995). A non-local expert may be qualified to testify if he or she demonstrates a familiarity with the standard of care in an area similar to the community in which the defendant practiced. Turbin v. Graesser (On Remand), 214 Mich.App. 215, 218-219, 542 N.W.2d 607 (1995).
Although nurses are licensed healthcare professionals, they do not engage in the practice of medicine. Cox v. Flint Bd. of Hosp. Mgrs., 467 Mich. 1, 20, 651 N.W.2d 356 (2002). Accordingly, the standards of care for general practitioners and specialists do not apply to nurses. Id. at 18-20, 651 N.W.2d 356. Rather, the common law standard of care applies to malpractice actions against nurses. Id. at 21, 651 N.W.2d 356. “[T]he applicable standard of care is the skill and care ordinarily possessed and exercised by practitioners of the profession in the same or similar localities.” Id. at 21-22, 651 N.W.2d 356. The standard of care required of a nurse must be established by expert testimony. Wiley, 257 Mich.App. at 492, 668 N.W.2d 402. “Expert testimony is necessary to establish the standard of care because the ordinary layperson is not equipped by common knowledge and experience to judge the skill and competence of the service and determine whether it meets the standard of practice in the community .” Id., citing Locke v. Pachtman, 446 Mich. 216, 223, 521 N.W.2d 786 (1994).
Here, contrary to the Spectrum defendants' claims, it is clear from plaintiff's expert's deposition testimony that she applied the proper standard of care with regard to plaintiff's nursing malpractice claims. Defendants' argument is premised on the fact that when plaintiff's expert witness, Michele Wolff, R.N., was asked whether the standard of care she was applying to this case was either a national or local standard, Wolff replied that it was a “national” standard. However, the actual substance of Wolff's lengthy testimony was that the procedures at issue here are so commonplace that the same standard of care applied locally and nationally. In other words, for example, no matter where a nurse is practicing: (1) central lines must be monitored and evaluated for patency, as well as utilized correctly, (2) particularized care must be given to a patient based on the patient's medical condition, (3) physician orders must be followed, and (4) nurses must record, apprise, and report to physicians and other providers significant changes in a patient's condition, as well as record such verbal communications. Thus, plaintiff's expert applied the proper standard of care, which happened to be the same locally as well as nationally. See LeBlanc v. Lentini, 82 Mich.App. 5, 19, 266 N.W.2d 643 (1978).
Further, contrary to the Spectrum defendants' claim, Wolff demonstrated her familiarity with the standard of care in an area similar to the community in which the defendant nurses practiced. See Turbin (On Remand), 214 Mich.App 217-218. Wolff testified to her extensive experience working in the pediatric intensive care unit at Children's Hospital of Orange County, California, dating back to at least 1986. She also had an extensive work history as a professor at Saddleback College in California, providing instruction in the area of pediatrics, including PICU. Wolff further testified that the PICU at Children's Hospital of Orange County was a very similar type of unit as the PICU at Butterworth Hospital, including with regard to the availability of appropriate resources. They were both well-staffed, well-equipped PICUs. Although she was not questioned extensively on the issue, Wolff testified that Grand Rapids is a medium or moderate-sized city, fairly well off, and pretty similar to Orange County, which is also a medium-sized city. In light of the evidence of record, we conclude that the trial court properly denied the Spectrum defendants' motion for summary disposition premised on the argument that the nursing malpractice claims were unsupported by expert testimony.
Finally, the Spectrum defendants argue that the trial court should have summarily dismissed plaintiff's nursing malpractice claims premised on the alleged failure to chart communications with physicians. We disagree.
The Spectrum defendants argue that the nurses who provided the contested care to Eric were not obligated by hospital policy to document their verbal communications with physicians who were also providing care to Eric in the PICU. Therefore, the claims set forth at ¶ 42(q), (r), (nn), (oo), and (qq) of plaintiff's amended complaint, which “deal[ ] in some way with purported failures on the various nurses['] parts to chart their communications with other providers” should be dismissed.
The specific claims set forth in ¶ 42 are:
q. The RN's in the PICU failed to assure that all employees and physicians were at all time fully apprised of the patient's condition and requirements for the patient care;
r. The OBGYN, Pediatricians, pediatric critical care doctors, and the RN's failed to keep complete, detailed, and specific records concerning the progress, symptoms, and complaints demonstrated by the patient, so as to apprise treating physicians of the detailed and precise condition of the patient;
* * *
nn. The PICU nurse failed to report to the physicians the findings of decreased heart rate from the 130's to the 100's, decreased respiratory rate from the 30's to teens, and decreased oxygen saturation to the 70's which is charted at 0304.
oo. Based upon the current information available, it appears that the PICU nurse did not report the problems drawing from the catheter to a physician in a timely manner.
* * *
qq. If the PICU nurse did not inform a physician of the drop in blood sugar from 90 at 0400 on the 20th to 48 at 0507 and 37 at 0550, this was below the standard of care. A physician should have been informed of those changes so that appropriate action could be taken.
Contrary to defendants' argument, these allegations clearly do not merely allege the nurses' failure to chart their communications with other medical providers. In fact, they allege a failure to “apprise,” “report,” and “inform” physicians and other providers of their findings, problems, and/or changes in the patient's condition. Thus, as plaintiff argues, the allegations pertain to “the level of communication that should have existed between the physicians who treated plaintiff and the hospital staff.” Accordingly, defendants' argument is wholly without merit. And, to the extent that negligent written communication, as well as negligent verbal communication, may be included in plaintiff's claims, those claims are governed by the applicable standard of care-the standard of care for nurses.
Affirmed and remanded for further proceedings. We do not retain jurisdiction. Costs to plaintiff as the prevailing party. MCR 7.219(A).
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Docket No: Docket Nos. 284155, 285870, 290633.
Decided: March 30, 2010
Court: Court of Appeals of Michigan.
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