 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wise v. Shink6/24/2003
UNPUBLISHED
In this medical malpractice action, plaintiffs appeal as of right the trial court's order granting summary disposition in favor of defendants pursuant to MCR 2.116(C)(10) and dismissing the case with prejudice. We affirm.
I. Facts and Proceedings
Podiatrists Dr. Jill Shink and Dr. Michael Ambroziak of the Family Foot and Ankle Centers, P.C., performed surgery on plaintiff's foot on January 28, 1998. Plaintiff alleged that the podiatrists committed medical malpractice for performing this procedure, causing perennial nerve damage and drop-foot and requiring a second surgery to be performed on October 16, 1998 by Dr. Todd Laughner and Dr. Andrew Cohen. Plaintiff alleged that Laughner and Cohen committed medical malpractice during the second surgery.
On July 20, 1999, plaintiff served Shink and Ambroziak with her notice of intent to sue, pursuant to MCL 600.2912b. On January 27, 2000, one day before the statute of limitations expired for her claims, plaintiff filed her complaint and an affidavit of merit by Dr. Edwin Season, an orthopedic surgeon.
Shink and Ambroziak moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10) on the ground that the affidavit of merit was defective. They asserted that MCL 600.2169(1)(c) barred Dr. Season as an expert witness because he was an orthopedic specialist and not a general practitioner in the field of podiatry as were Shink and Ambroziak. They asserted that, as a result of the defective affidavit of merit, the statute of limitations was not tolled by the filing of the complaint.
Plaintiff responded by asserting that the podiatrists exceeded the scope of the practice of podiatry and became orthopedic surgeons when they performed the surgery. Shink and Ambroziak responded by claiming that the case upon which plaintiff relied was issued before the Legislature enacted the 1986 tort reform act. They stated that the clear language of MCL 600.2169 barred plaintiff's attempt to offer Season as an expert witness in this medical malpractice claim. Plaintiff responded by filing a supplemental affidavit of merit by Dr. Jeffrey Kleis, who claimed to practice in the area of podiatry. Plaintiff argued that she was allowed to file the supplemental affidavit within ninety-one days of filing her complaint because Shink and Ambroziak failed to comply with her notice requirement, in violation of MCL 600.2912(d)(3).
Following oral arguments by the parties on summary disposition, the trial court took the matter under advisement. Plaintiff moved to amend her complaint to add Laughner and Cohen as defendants. The court then issued its opinion, granting summary disposition in favor of defendants Shink and Ambroziak pursuant to MCR 2.116(C)(10). The court ruled that the affidavit of merit by Season was defective on the grounds that Season was a specialist and not a general practitioner, as were Shink and Ambroziak. The court ruled that the affidavit of merit by Dr. Kleis was filed after the statute of limitations in the claims against the podiatrists had lapsed.
The trial court denied plaintiff's subsequent motion for reconsideration, and it issued an order granting summary disposition in favor of all defendants, including Laughner and Cohen, and dismissing the case with prejudice. This appeal followed.
II. Standard of Review
This Court reviews decisions on motions for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Alcona Co v Wolverine Environmental Production, Inc, 233 Mich App 238, 245; 590 NW2d 586 (1998). A motion for summary disposition under MCR 2.116(C)(10) tests the factual su
Page 1 2 3 Michigan Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|