Giusti v. Mt. Clemens General Hospital12/2/2003
UNPUBLISHED
Plaintiff appeals as of right the trial court's grant of summary disposition in this medical malpractice action. We affirm.
On September 14, 1999, plaintiff commenced this action alleging that as a result of negligence, malpractice, and willful and wanton misconduct with regard to the medical treatment he received in 1997 following presentations to the emergency room, during a hospital admission, and during post-hospitalization visits, he suffered severe injuries. The defendants were Mt. Clemens General Hospital (MCGH), an emergency room physician at MCGH, Dr. James Larkin, a neurologist at MCGH, Dr. Jay Kaner, and Tri-County Neurological Associates, P.C. The affidavit of merit was signed by Alexander Mauskop, M.D., a purported expert in neurology. A second affidavit of merit was subsequently filed that was signed by Frank J. Baker, II, M.D., a purported expert in emergency medicine. On March 7, 2001, Dr. Larkin was dismissed as a defendant by stipulation.
On February 25, 2002, MCGH filed a motion for summary disposition, pursuant to MCR 2.116(C)(8) and (C)(10), arguing that (1) it could not be vicariously liable for Dr. Kaner's actions because Dr. Kaner had "a separate and distinct physician-patient relationship with Plaintiff which predated the treatment at MCGH at issue," (2) plaintiff's emergency room expert, Dr. Baker, was not qualified pursuant to MCL 600.2169 to offer such expert testimony because he did not devote a majority of his professional time to the practice of emergency medicine in 1997 but, instead, worked half-time in emergency medicine, and (3) even if Dr. Baker was qualified to testify, plaintiff failed to establish causation.
On March 1, 2002, Dr. Kaner and Tri-County Neurological Associates moved for summary disposition, pursuant to MCR 2.116(C)(10), arguing that plaintiff failed to establish a breach in the standard of care since his neurology expert, Dr. Mauskop, indicated that "if the facts of the case were consistent with Dr. Kaner's testimony, then no violation of the standard of care existed."
On March 13, 2002, plaintiff responded to MCGH's motion for summary disposition and stipulated that MCGH could not be held vicariously liable for the actions of Dr. Kaner. Plaintiff argued, however, that (1) Dr. Baker was qualified as an expert in emergency medicine as evidenced by his testimony that, in 1997, he worked eight to ten shifts a month when full-time was considered fourteen shifts a month and, further, by his affidavit attached for consideration which indicated that in the immediately preceding year he devoted a majority of his professional time to the active clinical practice of emergency medicine, (2) MCL 600.2169 did not apply to the action because, at the time the lawsuit was filed, the statute was adjudicated unconstitutional, (3) plaintiff's causation expert, Dr. Mauskop, testified that an occluded carotid artery could have been detected at his initial presentation to MCGH with proper testing, and (4) Dr. Larkin's and Dr. Kaner's testimony could be used to establish a breach in the standard of care and proximate cause.
On March 29, 2002, a stipulation and order dismissing, with prejudice, Dr. Kaner and Tri-County Neurological Associates was entered by the court. On May 16, 2002, the trial court issued its opinion and order granting MCGH's motion for summary disposition pursuant to MCR 2.116(C)(8) and (C)(10). The trial court held that (1) MCL 600.2169 applied to the case, (2) Dr. Baker was not qualified under MCL 600.2169 because he admitted in his deposition that he considered himself to work only half-time and, thus, did not devote a majority of his professional time to the practice of emer
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