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 and clinical cardiac electrophysiology. 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, that a trial court's ruling on a motion for summary judgment is reviewed de novo on appeal. The court stated that a medical malpractice 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 reasonably believes meets the requirements for an expert witness" under Michigan law. The affiant 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 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 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.