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Dorris v. Detroit Osteopathic Hospital Corp.6/9/1999
a direct effect on the hospital's ability to monitor, investigate, and respond to trends and incidents that affect patient care, morbidity, and mortality.
Given that Heritage offered evidence in the form of Ms. Oziemski's affidavit that the information sought by Gregory was collected for the purpose of retrospective review by the peer committee, the trial court erred in ordering Heritage to produce the incident reports and other related investigatory documents. Gregory was not afforded the opportunity to challenge this evidence regarding whether it was actually collected for the purpose of retrospective review by the peer committee. Therefore, we remand to the trial court to allow plaintiff to test the veracity of the hospital's procedures.
IV.
Heritage argues that Gregory's claim that defendant Heritage failed to properly supervise and monitor patients is a medical malpractice action requiring a notice of intent to sue and an affidavit of merit and that the trial court erred in finding that the claim was an ordinary negligence action.
" complaint cannot avoid the application of the procedural requirements of a malpractice action by couching its cause of action in terms of ordinary negligence." McLeod v Plymouth Court Nursing Home, 957 F Supp 113, 115 (ED Mich, 1997), citing MacDonald v Barbarotto, 161 Mich App 542; 411 NW2d 747 (1987).
In the present case, plaintiff Gregory argues that the claim is an ordinary negligence action and not a medical malpractice action. Therefore, the claim is not subject to MCL 600.2912b; MSA 27A.2912(2) or to MCL 600.2912d; MSA 27A.2912(4).
MCL 600.2912b; MSA 27A.2912(2) provides:
(1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
(4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.
MCL 600.2912d; MSA 27A.2912(4) provides:
(1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements of 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 plaintiff's 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
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