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Putnam v. Sezgin12/2/2004
that the negligence occurred within the course of a professional relationship." Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11; 651 NW2d 356 (2002), quoting Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 45; 594 NW2d 455 (1999). A hospital may be directly liable for malpractice through claims of negligence in selection and retention of medical staff. Cox, supra. In Dorris, supra at 46, the Court stated:
The determination whether a claim will be held to the standards of proof and procedural requirements of a medical malpractice claim as opposed to an ordinary negligence claim depends on whether the facts allegedly raise issues that are within the common knowledge and experience of the jury or, alternatively, raise questions involving medical judgment.
Allegations concerning staffing decisions and patient monitoring involve questions of professional management and not issues of ordinary negligence. Id. at 47.
In this case, plaintiffs alleged a direct action against the hospital for failing to adopt and enforce appropriate policies and procedures related to the performance of orthopedic surgery and failing to provide adequate facilities, services, and staff to perform orthopedic surgery. The adequacy of the hospital's policies and procedures and the alleged failures of the hospital with respect to facilities, services, and staff, involve questions of professional medical management.
Because the alleged claim is a malpractice one, it was subject to the procedural requirements of a medical malpractice claim. Id. at 46.
Therefore, plaintiffs were required to submit an affidavit of merit delineating the standard of care, the affiant's opinion regarding the breach of the standard of care, the omissions or actions that needed to be taken to comply with the standard of care, and the manner in which the breach was the proximate cause of the injury. See MCL 600.2912d. Plaintiffs failed to file any affidavit of merit containing a statement setting forth the standards applicable to the hospital, setting forth the standards that were allegedly breached by the hospital, setting forth the actions that should have been taken or omitted by the hospital in order to comply with the applicable standards, or setting forth the manner in which the alleged breach by the hospital was the proximate cause of plaintiff Michael Putnam's injuries. Thus, with respect to their claims against the hospital, plaintiffs completely failed to comply with MCL 600.2912d. Therefore, dismissal was the appropriate action. See Mouradian, supra.
We reject plaintiffs' argument that they had a reasonable belief that the affidavit that was filed, addressing Dr. Sezgin's negligence, was sufficient against the hospital. MCL 600.2912d(1) provides that a plaintiff shall file an affidavit by a health professional, which the plaintiff's attorney reasonably believes meets the requirements for an expert under MCL 600.2169. In other words, at the "affidavit of merit" stage, a reasonable belief that the expert is qualified is sufficient. Watts v Canady, 253 Mich App 468, 471-472; 655 NW2d 784 (2002). While there must be a reasonable belief that the affiant was qualified to testify under MCL 600.2169, there is no exception to the actual requirements of the affidavit. The affidavit must contain the information set forth in the statute. The use of the word shall in MCL 600.2912d make the requirements of the statute mandatory. See Salter v Patton, 261 Mich App 559, 564; 682 NW2d 537 (2004) (the use of the word "shall" is unambiguous and is used to denote mandatory, rather than discretionary, action); see also Fournier v Mercy Community Health Care System-Port Huron, 254 Mich App 461, 463-464; 657
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