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Mullaney v. Kistler11/4/2003
UNPUBLISHED
Defendants Laboratory Corporation of America (LabCorp) and Health Alliance Plan of Michigan (HAP) appeal by leave granted the denial of LabCorp's motion for summary disposition, in which HAP joined below. LabCorp and HAP argue that summary disposition should have been granted because plaintiffs failed to file an appropriate affidavit of merit under MCL 600.2912d and MCL 600.2169. We affirm.
I.
Defendants contend that plaintiffs' action should have been dismissed because the affidavit of merit of Dr. Gerald McGrory, a board-certified pharmacist, failed to comply with MCL 600.2192d. We disagree.
We review de novo the circuit court's denial of defendants' motion for summary disposition. Mouradian v Goldburg, 256 Mich App 566, 570; 664 NW2d 805 (2003). We also review de novo the interpretation of a statute. Donajkowski v Alpena Power Co, 460 Mich 243, 248; 596 NW2d 574 (1999). MCL 600.2912d(1) sets forth the requirements for an affidavit of merit filed in a medical malpractice action:
. . . 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 that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
A.
Dr. McGrory's affidavit of merit stated:
1. That he is a pharmacist duly licensed to practice in the State of Pennsylvania and is board-certified.
2. That he has reviewed the Notice of Intent filed by the attorney for the claimant.
3. That he has reviewed all of the records supplied to him by claimant's attorney concerning the allegations contained in the Notice.
4. That in his opinion, the applicable standard of care required as follows:
A. Health Alliance Plan and Laboratory Corporation of America should have made arrangements such that claimant's gentamycin peak and trough levels were accurately obtained and reported in a timely manner.
B. Ivonyx, Inc./Complete Infusion Care, Inc., acting through its pharmacist, Diane Smalley initially should not have dispensed such a high dose of gentamycin for this patient.
C. Ivonyx, Inc./Complete Infusion Care, Inc., acting through its pharmacist, Diane Smalley should not have recommended continuing the same dose of gentamycin on August 28, 1998 without first obtaining a set of accurate gentamycin peak and trough levels.
D. Ivonyx, Inc./Complete Infusion Care, Inc., acting through its pharmacist, Diane Smalley should have recommended discontinuing claimant's gentamycin following the September 3, 1998 gentamycin laboratory results.
5. That, in his opinion, the applicable standard of care and management of Thomas Mullaney was violated and breached by Ivonyx, Inc./Complete Infusion Care, Inc., pharmacist, Diane Smalley, Health Alliance Plan and Laboratory Corporation of America resulting in the permanent and irreparable damage to Thomas Mullaney's kidneys and 8th cranial nerve.
The circuit court concl
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