These decisions have variously stated that a court must determine whether a record "might be developed" that will leave open an issue upon which reasonable minds may differ, see, e.g., Farm Bureau Mutual Ins Co of Michigan v. Stark, 437 Mich. 175, 184; 468 N.W.2d 498 (1991); First Security Savings Bank v. Aitken, 226 Mich. App. 291, 304; 573 N.W.2d 307 (1997); Osman v. Summer Green Lawn Care, Inc, 209 Mich. App. 703, 706; 532 N.W.2d 186 (1995), and that summary disposition under MCR 2.116(C)(10) is appropriate only when the court is satisfied that "it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome." Paul v. Lee, 455 Mich. 204, 210; 568 N.W.2d 510 (1997); Horton v. Verhelle, 231 Mich. App. 667, 672; 588 N.W.2d 144 (1998). These Rizzo-based standards are reflective of the summary judgment standard under the former General Court Rules of 1963, not MCR 2.116(C)(10).
However, if laymen would not necessarily know what information a physician should provide the patient, expert testimony is required." [Paul v Lee, 455 Mich 204, 212; 568 NW2d 510 (1997), overruled on other grounds by Smith v Globe Life Ins Co, 460 Mich 446, 455-456 n 2 (1999) (citation omitted).] In the first trial in this case, plaintiff presented the expert testimony of Dr. Swartz regarding the issue of informed consent.
"A breach not causally related to the claimed damages is not actionable and is not material." Paul v Lee, 455 Mich 204, 216; 568 NW2d 510 (1997), overruled on other grounds Smith v Globe Life Ins Co, 460 Mich 446, 455 n 2; 597 NW2d 28 (1999). "To determine whether a substantial breach occurred, a trial court considers 'whether the nonbreaching party obtained the benefit which he or she reasonably expected to receive.'"
cisions from this Court and the Court of Appeals have, in reviewing motions for summary disposition brought under MCR 2.116(C)(10), erroneously applied standards derived from Rizzo v Kretschmer, 389 Mich. 363; 207 N.W.2d 316 (1973). These decisions have variously stated that a court must determine whether a record 'might be developed' that will leave open an issue upon which reasonable minds may differ, see, e.g., Farm Bureau Mutual Ins Co of Michigan v Stark, 437 Mich. 175, 184; 468 N.W.2d 498 (1991); First Security Savings Bank v Aitken, 226 Mich.App. 291, 304; 573 N.W.2d 307 (1997); Osman v Summer Green Lawn Care, Inc, 209 Mich.App. 703, 706; 532 N.W.2d 186 (1995), and that summary disposition under MCR 2.116(C)(10) is appropriate only when the court is satisfied that 'it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome.' Paul v Lee, 455 Mich. 204, 210; 568 N.W.2d 510 (1997); Horton v Verhelle, 231 Mich.App. 667, 672; 588 N.W.2d 144 (1998).
See Compton v Pass, 485 Mich. 920 (2009) (the plaintiff claimed that the defendant did not inform her that she could have a sentinel node biopsy without participation in a trial led by the defendant that required removal of multiple nodes); Paul v Lee, 455 Mich. 204, 206; 568 N.W.2d 510 (1999), overruled on other grounds by Smith v Globe Life Ins Co, 460 Mich. 446; 597 N.W.2d 28 (1999) (the plaintiff claimed that the defendant failed to inform him that vasectomy procedure might not be permanent and he should have post-surgical sperm testing to confirm sterility); Wlosinski v Cohn, 269 Mich.App. 303, 306; 269 N.W.2d 303 (2005) (the plaintiff claimed that the defendant failed to inform her of his success rate for the surgery); Robins v Katz, 151 Mich.App. 802, 805; 391 N.W.2d 495 (1986) (the plaintiff asserted that she "was not informed of the risks and complications of surgery"); Rodgers v Syverson, unpublished per curiam opinion of the Court of Appeals, issued September 19, 2006 (Docket No. 269283) (the plaintiff claimed that the defendant did not inform her that the surgery involved an incision in her labial/vaginal area), p 4; Shear v Brinn, unpublished per curiam opinion of the Court of Appeals, issued March 11, 2014 (Docket No. 314297) (the plaint
These decisions have variously stated that a court must determine whether a record "might be developed" that will leave open an issue upon which reasonable minds may differ, see, e.g., Farm Bureau Mutual Ins Co of Michigan v Stark, 437 Mich 175, 184; 468 NW2d 498 (1991); First Security Savings Bank v Aitken, 226 Mich App 291, 304; 573 NW2d 307 (1997); Osman v Summer Green Lawn Care, Inc, 209 Mich App 703, 706; 532 NW2d 186 (1995), and that summary disposition under MCR 2.116(C)(10) is appropriate only when the court is satisfied that "it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome." Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997); Horton v Verhelle, 231 Mich App 667, 672; 588 NW2d 144 (1998).These Rizzo-based standards are reflective of the summary judgment standard under the former General Court Rules of 1963, not MCR 2.116(C)(10).
Consequently, the jury's subsequent verdict in favor of plaintiff is immaterial to whether the trial court properly denied summary disposition. See Paul v Lee, 455 Mich 204, 216-217; 568 NW2d 510 (1997) (overruled on other grounds by Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999)). In greater detail than discussed by the majority, according to defendant, he met "Kathy" when she approached him in a restaurant and invited him to attend a party.
"Claims of negligence based on the failure of a physician or surgeon to adequately obtain informed consent before a procedure or to otherwise fail to instruct or advise a patient come within the general rule regarding the need for expert testimony." Paul v Lee, 455 Mich 204, 212; 568 NW2d 510 (1997), rev'd on other grounds by Smith v Globe Life Ins Co, 460 Mich 446; 597 NW2d 28 (1999). Because plaintiff's claim presents questions beyond the jury's general knowledge, expert testimony is necessary; therefore, plaintiff's action is one of medical malpractice. Bryant, 471 Mich at 422.
These decisions have variously stated that a court must determine whether a record "might be developed" that will leave open an issue upon which reasonable minds may differ, see, e.g., Farm Bureau Mutual Ins. Co. of Michigan v Stark, 437 Mich 175, 184; 468 NW2d 498 (1991); First Security Savings Bank v Aitken, 226 Mich App 291, 304; 573 NW2d 307 (1997); Osman v Summer Green Lawn Care, Inc., 209 Mich App 703, 706; 532 NW2d 186 (1995), and that summary disposition under MCR 2.116(C)(10) is appropriate only when the court is satisfied that "it is impossible for the nonmoving party to support his claim at trial because of a deficiency that cannot be overcome." Paul v Lee, 455 Mich 204, 210; 568 NW2d 510 (1997); Horton v Verhelle, 231 Mich App 667, 672; 588 NW2d 144 (1998).These Rizzo-based standards are reflective of the summary judgment standard under the former General Court Rules of 1963, not MCR 2.116(C)(10).
This Court reviews a trial court's grant of summary disposition pursuant to MCR 2.116(C)(10) de novo. Paul v Lee, 455 Mich. 204, 210; 568 N.W.2d 510 (1997); UAW-GM Human Resource Center v KSL Recreation Corp, 228 Mich. App. 486, 490; 579 N.W.2d 411 (1998). In addition, statutory interpretation is a question of law that is subject to review de novo on appeal.