Opinion
No. 01-CV-73837-DT.
December 21, 2001.
OPINION
On June 18, 2001, Plaintiff filed this action against Defendant in Macomb County Circuit Court. Defendant then removed the action to this Court, asserting diversity jurisdiction. On October 10, 2001, Defendant filed a motion for summary judgment. A hearing was held on December 20, 2001. For the reasons set forth below, Defendant's motion for summary judgment shall be granted.
Background
Plaintiff Joann Judd states that on June 11, 1999, she had complete right side hip replacement at William Beaumont Hospital in Royal Oak, Michigan. (Compl. ¶ 5). Plaintiff was transferred to Defendant's health care facility on June 16, 1999. Plaintiff alleges that "during the nightshift staffing was inadequate and unprofessional." (Compl. ¶ 8). More specifically, Plaintiff claims that "due to the inadequate staffing, the employees of the defendant would place four to five adult diapers on the bed and, rather than responding in a reasonable time frame when notified by plaintiff through her call light to plaintiffs urinary needs, would allow plaintiff to relieve herself in bed and then permit plaintiff to wallow in her urine." (Compl. ¶ 9).
Plaintiff claims that due to the above conduct, on July 2, 1999, Plaintiff was transferred to William Beaumont Hospital via ambulance, and on July 4, 1999, Plaintiffs "surgery had to be `reopened' and pockets of puss and infection had to be removed from Plaintiffs hip region." (Compl. ¶¶ 10 11). Plaintiff further states that it was determined that the cause of the problem was "urine deposits." (Compl. ¶ 12).
Plaintiff filed suit against Defendant on June 18, 2001. In her complaint, Plaintiff alleges:
That defendant owed her the following duties including but not limited to:
a. To adequately staff their facility during the night shift.
b. To respond in a reasonable manner when notified by the Plaintiff to her night light that she had urinary needs or any needs.
c. To eliminate unsafe conditions.
(Compl. ¶ 15). Plaintiff further alleges that Defendant breached those duties, and that as a proximate cause of Defendant's negligent acts or omissions, Plaintiff suffered damages.
On October 10, 2001, Defendant removed the action to this Court, asserting diversity jurisdiction. On October 10, 2001, Defendant filed the instant motion for summary judgment.
Standard of Review
Rule 56(c) of the Federal Rules of Civil Procedure mandates the entry of summary judgment when "the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." There is no genuine issue of material fact for trial unless, by viewing the evidence in favor of the nonmoving party, a reasonable jury could return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Boddy v. Dean, 821 F.2d 346, 349 (6th Cir. 1987). "If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249, 106 S. Ct. at 2511.
Discussion
I. Complaint Must Be Dismissed For Failure To File Affidavit of Merit
Defendant contends that this action, alleging inadequate staffing at a health care facility, is a medical malpractice action, and is therefore governed by Michigan's Tort Reform Act, MICH. COMP. LAWS §§ 600.2912a, et seq. Defendant further asserts that Plaintiffs complaint must be dismissed because she failed to file an Affidavit of Merit with her complaint, as required by MICH. COMP. LAWS § 600.2912d, which provides, in pertinent part:
the plaintiff in any action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiffs attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiffs 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 plaintiffs 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.
MICH. COMP. LAWS § 600.2912d(1).
Plaintiff responds by asserting that her action is not a medical malpractice action, but rather, is an action for ordinary negligence. Citing this Court's opinion, McLeod v. Plymouth Court Nursing Home, 957 F. Supp. 113 (E.D. Mich. 1997), Plaintiff asserts that "where there is a complaint which alleges a theory of ordinary negligence and is supported by facts no such affidavit or written notice of intent to bring a medical malpractice [action] is required under Michigan law." (Pl.'s Resp. at 4).
In McLeod, a nursing home resident brought suit against a nursing home alleging that the nursing home had breached its duty of reasonable care by leaving her wheelchair unlocked or unstable for sitting down and getting up, resulting in a fall that broke her hip. McLeod v. Plymouth Court Nursing Home, 957 F. Supp. 113 (E.D. Mich. 1997). This Court held that the plaintiffs action sounded in negligence and not medical malpractice. In reaching that conclusion, this Court first noted that "[i]n Michigan, a claim by a patient who has fallen in a hospital or other licensed health facility may be brought against that facility as a medical malpractice claim or as a claim for ordinary negligence." Id. at 115. (citations omitted). This Court also noted that the plaintiff alleged in her complaint that the defendant breached "its duty of reasonable care," the duty element required for ordinary negligence, and that no reference was made to any breach or violation of a duty to exercise the degree of skill, care or diligence exercised by hospitals or health care facilities. Id. Finally, this Court noted that "a complaint cannot avoid the application of the procedural requirements of a malpractice action by couching its cause of action in terms of ordinary negligence." Id. at 115. (citing MacDonald v. Barbarotto, 161 Mich. App. 542, 549 (1987)). "Where the parties dispute whether plaintiff has alleged malpractice or ordinary negligence, courts have attempted to ascertain whether the facts alleged present issues which are within the common knowledge and experience of the jury or, in the alternative, raise a question of medical judgment." McLeod, 957 F. Supp. at 115 (citing Wilson v. Stilwill, 411 Mich. 587, 611 (1981); Adkins v. Annapolis Hosp., 420 Mich. 87, 89 (1984)).
The case at bar can readily be distinguished from McLeod. First, unlike McLeod, this case does not involve a claim by a patient who has fallen in a hospital or health facility. Second, Plaintiff has not simply alleged that Defendant breached "its duty of reasonable care" in this action. To the contrary, in this case the Plaintiff alleges in her complaint that Defendant breached its duty to adequately staff their facility, and to respond in a reasonable manner when notified by the Plaintiff that she had urinary needs. Finally, unlike McLeod, the facts alleged in Plaintiffs complaint do not present issues within the common knowledge and experience of the jury. Rather, "allegations concerning staffing decisions and patient monitoring involve questions of professional medical management and not issues of ordinary negligence that can be judged by the common knowledge and experience of a jury." Dorris v. Detroit Osteopathic Hosp., 460 Mich. 26, 47 (1999).
Accordingly, Plaintiffs complaint against Defendant must be dismissed for failure to file an affidavit of merit.
II. Dismissal Should Be With Prejudice
A plaintiff who files a medical malpractice complaint without the required affidavit is subject to a dismissal without prejudice, and can refile properly at a later date. Dorris, 460 Mich. at 47-48; Scarsella v. Pollak, 461 Mich. 547, 552 (2000). However, such a plaintiff must still comply with the applicable period of limitation. Id. Defendant contends that dismissal with prejudice is in order here because Plaintiff is now barred by the two year statute of limitation from refiling the complaint against Defendant. The Court agrees.
A two year period of limitations applies to medical malpractice actions. MICH. COMP. LAWS § 600.5805(5). While generally a civil action is commenced and the period of limitation is tolled when a complaint is filed, See M.C.R. 2.101(B) and MICH. COMP. LAWS § 600.5856, medical malpractice plaintiffs must also file an affidavit of merit with the complaint. Scarsella v. Pollak, 461 Mich. 547, 549 (2000). Thus, for statute of limitation purposes in a medical malpractice case, "the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit." Id.
In this case, Plaintiffs claims arose on July 4, 1999. Therefore, Plaintiff had two years from that date, or until July 5, 2001, to file suit against Defendant. Because Plaintiffs complaint, filed without an accompanying affidavit of merit, was insufficient to commence her action, the period of limitation expired on July 5, 2001. Accordingly, Plaintiffs complaint must be dismissed with prejudice.
At the hearing on December 20, 2001, Plaintiffs counsel conceded that if the Court finds this action to be a medical malpractice action, Plaintiffs complaint must be dismissed with prejudice.