MI: heart patient died: wife sued hospital expert affidavit 'NG' for vicarious liability claim.CASE FACTS: Dirk Konig underwent heart surgery performed by Dr. Bohuslav Finta at Spectrum Health Hospital. The patient developed complications that either went undetected, or, were detected, but not corrected in time. He died. The patient's wife brought suit against the hospital for the alleged negligence of Dr. Finta and all agents and employees involved in the decedent's care. Her complaint was accompanied by an affidavit of merit from Dr. David Martin, a surgeon board-certified in cardiovascular disease Cardiovascular disease
Disease that affects the heart and blood vessels.
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cardiovascular disease and clinical cardiac electrophysiology Cardiac Electrophysiology (also referred to as clinical cardiac electrophysiology , Arrhythmia Services , or electrophysiology), is a branch of the medical specialty of cardiology/cardiac surgery concerned with the study and treatment of rhythm disorders of the . The hospital moved to dismiss the case on the grounds that Dr. Martin was not qualified to provide an affidavit of merit regarding the alleged negligence of hospital staff members. The trial court denied the hospital's motion. The hospital appealed.
COURT'S OPINION: The Court of Appeals of Michigan reversed the ruling of the trial court and remanded the case back to the court with directions to grant the hospital's motion to dismiss the plaintiff's case. The court held, inter alia [Latin, Among other things.] A phrase used in Pleading to designate that a particular statute set out therein is only a part of the statute that is relevant to the facts of the lawsuit and not the entire statute. , that a trial court's ruling on a motion for summary judgment motion for summary judgment n. a written request for a judgment in the moving party's favor before a lawsuit goes to trial and based on recorded (testimony outside court) affidavits (or declarations under penalty of perjury), depositions, admissions of fact, answers is reviewed de novo [Latin, Anew.] A second time; afresh. A trial or a hearing that is ordered by an appellate court that has reviewed the record of a hearing in a lower court and sent the matter back to the original court for a new trial, as if it had not been previously heard nor decided. on appeal. The court stated that a medical malpractice Improper, unskilled, or negligent treatment of a patient by a physician, dentist, nurse, pharmacist, or other health care professional. suit may be commenced against a licensed health care professional or licensed health facility. However, the complaint must be accompanied by an affidavit of merit from a qualified expert certifying that the claim has merit. The affidavit must be "signed by a health professional who the plaintiff's attorney plaintiff's attorney n. the attorney who represents a plaintiff (the suing party) in a lawsuit. In lawyer parlance a "plaintiff's attorney" refers to a lawyer who regularly represents persons who are suing for damages, while a lawyer who is regularly chosen by an reasonably believes meets the requirements for an expert witness" under Michigan law. The affiant affiant n. a person who signs an affidavit and swears to its truth before a Notary Public or some person authorized to take oaths, like a County Clerk. (See: affidavit, declarant) must identify the applicable standard of care, opine that the defendant breached that standard, specify the actions that should have been undertaken, or omitted, and specify the manner in which the breach of the standard of care was the proximate cause An act from which an injury results as a natural, direct, uninterrupted consequence and without which the injury would not have occurred.
Proximate cause is the primary cause of an injury. of the injury. Further, the court stated that an affidavit of merit is required in every medical malpractice action, including those against non-physicians. The court concluded that because institutional defendants, such as hospitals, are incapable of committing any independent actions, including negligence, a medical malpractice suit brought against a hospital is necessarily premised on a theory of vicarious liability The tort doctrine that imposes responsibility upon one person for the failure of another, with whom the person has a special relationship (such as Parent and Child, that the hospital is liable for the actions of its agents, and the standard of care applicable to the hospital is the same standard of care that is applicable to each agent alleged to have been negligent. Accordingly, the court concluded that because Dr. Martin was not qualified to serve as an expert against anyone other than Dr. Finta, and because the plaintiff conceded that the hospital was not vicariously liable for Dr. Finta's negligence, the court concluded that the trial court erred in denying the hospital's motion. Konig v. Finta, (07/01/2008) N.W.2d-MI
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout die United States In addition to his writings as Editor of Medical Law's. Nursing Law's & Hospital Law's Regan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers. Marquis Who's Who in American Law, Who's Who in America and Who's in the World.