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Expert needn't be challenged when affidavit filed.

Byline: Traci R. Gentilozzi

A medical-malpractice defendant did not have to challenge the plaintiff's expert witness at the time the expert's affidavit of merit was filed, the Michigan Court of Appeals has decided.

The plaintiff, Helen Edwards, underwent a transesophageal echocardiogram (TEE). Her esophagus was perforated during the procedure. She sued the defendant, Anne Hepner, M.D., for malpractice in Grand Traverse Circuit Court.

The trial court dismissed the plaintiff's claim with prejudice, finding that her expert witness, Dr. Richard Friedlander, was not qualified to testify on the standard of care because he was not certified in echocardiography.

On appeal, the plaintiff argued the defendant should have taken issue with her expert witness when his affidavit was filed.

According to the plaintiff, the defendant's motion for summary disposition should have been treated as a motion to strike the plaintiff's expert's affidavit, allowing the case to be dismissed without prejudice so she could refile.

The Court of Appeals disagreed in Edwards v. Hepner (MiLW No. 08-86378, 4 pages), an unpublished ruling. Judges Christopher M. Murray, Pat M. Donofrio and Stephen L. Borrello were on the panel.

  'Unfruitful' challenge

MCL 600.2912d says, in part, "(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:

(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."

Under MCR 2.112(L)(2)(b), any challenge to an affidavit of merit "must be made by motion ... within 63 days of service of the affidavit of the opposing party," the Court of Appeals pointed out.

If a challenge is successful, the appropriate remedy is to dismiss the case without prejudice, the appeals court said.

This is different than summary disposition under MCR 2.116(C)(10), the court noted, because a grant of summary disposition is an adjudication on the merits of the case.

Here, the plaintiff argued the defendant's motion for summary disposition should have been treated as a motion to strike the expert's affidavit, which meant that dismissal should have been without prejudice, the Court of Appeals said.

But in Michigan, a plaintiff must obtain a medical expert at two different stages of the litigation - at the time the complaint is filed and at the time of trial, the appeals court noted.

"At the initial stage when filing a complaint, under MCL 600.2912d(1), 'a plaintiff is required to file ... an affidavit of merit signed by an expert who the plaintiff's attorney reasonably believes meets the requirements of MCL 600.2169,'" the court wrote.

Then at the second stage, a plaintiff's expert must meet the requirements of MCL 600.2169, the Court of Appeals said.

Here, a challenge to the expert's affidavit likely would have been "unfruitful" at the initial stage because the plaintiff would have only been required to show that her attorney "reasonably believed" the expert met the requirements, the court said.

"Therefore, plaintiff's argument that defendant's motion for summary disposition should be viewed as an attack on the affidavit of merit under MCR 2.112(L)(2) is not supported," the Court of Appeals said.

Accordingly, the trial court properly dismissed the plaintiff's case with prejudice.

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Publication:Michigan Lawyers Weekly
Date:Sep 16, 2014
Words:693
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