Staff v. Marder9/15/2000
FOR PUBLICATION
9:00 a.m.
As amended November 9, 2000
Defendants, Joel A. Johnson, M.D., and Joel A. Johnson, M.D., FACS, P.C., (hereinafter defendants), appeal by leave granted from an order denying their motion for summary disposition. We reverse.
On July 22, 1997, plaintiff filed a claim alleging medical malpractice against Curtis C. Marder, M.D., Curtis C. Marder, M.D., P.C., Larry S. Lewis, M.D., and Surgical Associates of Marquette, P.C. His complaint stemmed from medical care received at two Marquette County hospitals.
On December 17, 1995, plaintiff allegedly arrived at Grand View Hospital complaining of chest pains. He had a history of hypertension. He was diagnosed with acute angina, admitted to the hospital, and started on a therapy of heparin, nitroglycerin drip, and aspirin. On December 19, 1995, plaintiff was transferred to Marquette General Hospital for further evaluation. Plaintiff was admitted under the care of Dr. Nelson Gencheff, but later was treated by Dr. Curtis Marder, who consulted with Dr. Larry Lewis. During his treatment at Marquette General Hospital, plaintiff allegedly continued to be treated with heparin. However, he allegedly experienced a decreased platelet count, abdominal distention, subcutaneous emphysema, and mottling of the feet and legs. On January 2, 1996, the heparin was discontinued. On January 4, 1996, plaintiff learned that amputation of his feet was a possibility. On January 19, 1996, a below the knee, bilateral amputation was performed on plaintiff. Plaintiff alleged that medical malpractice occurred as a result of the heparin treatment.
On January 16, 1998, Curtis C. Marder, M.D., and Curtis C. Marder, M.D., P.C., filed a motion to allow late notice with respect to a nonparty. The motion alleged that upon receipt of the Marquette General Hospital records, it was discovered that another physician, who was not named as a party to the litigation, ordered the administration of heparin upon plaintiff's admission to the hospital and adjusted the dosage throughout the hospitalization or for a significant period during the hospitalization. The motion acknowledged that the filing was late, but alleged that unfair prejudice would not result because of the minimal discovery that had occurred in the litigation. A brief in support was filed with the motion and was the only document to name the nonparty as Dr. Gencheff. A notice of hearing provided that the motion would be heard on "January 30, 1997 [sic, 1998]."
On January 22, 1998, plaintiff filed a motion to amend the complaint. Plaintiff acknowledged the motion to allow late notice regarding nonparty involvement. Plaintiff requested that Dr. Gencheff and Cardiology Associates of the Upper Peninsula, P.C., be added as defendants and had prepared a proposed amended complaint that named them as defendants. A notice of hearing provided that the motion would be heard on January 30, 1998. On January 30, 1998, the trial court prepared a "memorandum" that was filed on February 2, 1998. This memorandum provided that "counsel for Dr. Marder had notified others of a potential third party who may be liable to the plaintiff." However, the memorandum noted that after the filing of the motion regarding late notice, "counsel" had found yet "another doctor who potentially may have some liability to the plaintiff." The memorandum acknowledged that, by statute, the parties to be added were entitled to ninety-one days' notice "before they can be made parties to the litigation." The memorandum provided:
Accordingly, permission to add these two parties will be granted upon the filing of an appropriate petition, all of the present parties havin
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