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Dyer v. Trachtman3/13/2003
FOR PUBLICATION
Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendant and denying plaintiff's motion to amend the complaint. We affirm in part, reverse in part, and remand.
Plaintiff alleged that he was injured in the course of an independent medical examination (IME) conducted by defendant for an unrelated civil action. Plaintiff asserted that, before the examination, he told defendant that he had recently had surgery to repair a tear in the superior labrum of his right shoulder and that the surgeon had placed restrictions on the movement of plaintiff's right arm and shoulder, particularly instructing plaintiff to avoid lifting the arm above forty-five degrees. Plaintiff further asserted that during the course of the examination defendant nonetheless forcefully rotated plaintiff's right arm and shoulder ninety degrees, detaching the labrum from the right shoulder and requiring another surgery to repair the damage.
Plaintiff's original complaint alleged professional negligence against defendant. Defendant moved for summary disposition, arguing that there was no physician-patient relationship between plaintiff and defendant associated with the IME. Plaintiff moved to amend the complaint to include a claim of ordinary negligence. The trial court granted defendant's motion, agreeing with defendant that there was no physician-patient relationship and that a claim of professional negligence could not be brought. The trial court further denied plaintiff's motion to amend the complaint concluding that it would be futile to do so because any claim of negligence against the physician would be a claim of professional negligence requiring a physician-patient relationship.
Although the trial court granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(10), because we find no indication that the trial court reviewed evidence outside the pleadings in ordering summary disposition, we review this matter under MCR 2.116(C)(8), which is the correct rule under these circumstances. A trial court's decision to grant summary disposition pursuant to MCR 2.116(C)(8) is reviewed de novo, to determine "whether the plaintiff has stated a claim upon which relief can be granted." Beaudrie v Henderson, 465 Mich 124, 130; 631 NW2d 308 (2001).
A physician-patient relationship is a prerequisite for a professional negligence or malpractice cause of action against a physician. Hill v Kokosky, 186 Mich App 300, 302-303; 463 NW2d 265 (1990). In an IME context, there is no physician-patient relationship and there can be no liability for professional negligence or medical malpractice. See Rogers v Horvath, 65 Mich App 644, 647; 237 NW2d 595 (1975) ("the defendant did not owe plaintiff any duty arising from a physician-patient relationship. . . . We hold that the physician in such a case does not owe such a duty of care that will subject him to liability for malpractice."). While Rogers is not binding, see MCR 7.215(I)(1), we note that it is consistent with cases from other jurisdictions, we find it persuasive and we adopt its reasoning and result. Accordingly, the trial court appropriately granted defendant's motion for summary disposition of plaintiff's professional negligence cause of action as stated in the original complaint.
However, plaintiff's attempt to allege ordinary negligence against defendant through the amended complaint presents a different question. The trial court denied the motion to file the amended complaint on the grounds of futility, reasoning that an ordinary negligence claim could not be supported under the facts alleged. Again, this is a question of law we review de novo. Gunsel
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