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Piontek v. Armstrong12/27/2002
UNPUBLISHED
In this medical malpractice case, plaintiff appeals as of right from an order of the circuit court granting summary disposition to defendant James Armstrong, D.O. We reverse.
The facts underlying this appeal are not in dispute. The decedent, Margaret Piontek, was referred by her primary care physician to appellee in July 1997, for review of an abdominal aneurysm that had been under observation for several years. The aneurysm was apparently located on the inferior mesenteric artery, which branches off from the abdominal aorta.
On August 13, 1997, at Garden City Hospital, appellee performed surgery on the decedent to repair the artery. The day following the surgery, appellee went on a two-week vacation. During appellee's absence, the decedent's primary care physician was in charge of her post-operative medical care. At some point in those two weeks, Piontek experienced significant post-operative difficulties. An infectious disease consultation was done four or five days after the surgery, followed by additional diagnostic procedures after appellee's return. These additional procedures included: (1) an ultrasound guided paracentesis, performed by gastroenterologist William Raminick, D.O., on September 3, 1997; (2) a CAT scan on September 3 or 4, 1997; (3) the insertion of a catheter on September 10, 1997; (4) a fistula gram on September 17, 1997; and (5) a proctosigmoidoscopy on September 18, 1997. The proctosigmoidoscopy identified a colon perforation. No surgery was undertaken to address this perforation. The decedent died on September 21, 1997.
On June 30, 2000, appellant filed his complaint in the present case against appellee, Louis Tegtmeyer, D.O., Garden City Osteopathic Hospital, and Raminick. Stipulated orders dismissing with prejudice Dr. Tegtmeyer, Garden City, and Dr. Raminick were entered, respectively, on October 10, 2000, May 25, 2001, and July 9, 2001. The affidavit of merit filed regarding the claim against appellee was signed by Wayne S. Gradman, M.D.
On May 25, 2001, appellee filed a motion to strike plaintiff's expert witness (Gradman) and enter summary disposition under MCR 2.116(C)(8) and (C)(10), arguing that pursuant to MCL 600.2169, Gradman could not serve as an expert witness against appellee because Gradman is board certified in general surgery, whereas appellee is board certified in cardiovascular thoracic surgery. Plaintiff countered that the requirements of the statute were satisfied because both Gradman and appellee were board certified in general surgery.
On May 31, 2001, appellee filed a second motion for summary disposition under MCR 2.116(C)(7) and (C)(10), arguing that because the board certifications of the two doctors did not match, Gradman's affidavit of merit was invalid. Accordingly, because the estate was opened on July 6, 1998, appellee argued that plaintiff's cause of action was barred by the statute of limitations. Plaintiff countered that summary disposition was improper because both doctors were board certified in general surgery. Alternatively, plaintiff argued that the statute of limitation should be tolled because of his reasonable belief that Gradman was qualified to testify as an expert witness.
At a June 22, 2001, hearing, the circuit court denied appellee's motion to grant summary disposition based on a faulty affidavit of merit and the statute of limitations, reasoning as follows: "I am not going to grant your motion to dismiss the case on the basis of an affidavit which you claim is incompetent. I think it could fit under the section in the statute that says who the plaintiff's attorney reasonably believes meets the requirement for an expert witness under se
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