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In re Saggers7/26/2005
UNPUBLISHED
Before: Neff, P.J., and Smolenski and Talbot, JJ.
Plaintiff appeals as of right the trial court's grant of summary disposition in favor of defendant Detroit Receiving Hospital and University Health Center in this medical malpractice action. We affirm in part, reverse in part, and remand.
I.
This case arises from injuries suffered by Samuel Saggers after he sought emergency medical treatment from defendant for varicella (chicken pox) over the course of four days in February 2000. Saggers, who was twenty-eight years old at the time, went to defendant's emergency room at 10:45 p.m. on Sunday, February 6, 2000, complaining of nausea, pain in his back and sides and multiple lesions, which were diagnosed as varicella. He had first noticed the lesions two days earlier on Friday, February 4, 2000. Following an examination and portable chest x-ray, which was reportedly negative, Saggers was administered fluids and medication for nausea. He was discharged approximately four hours later, with instructions to follow-up at a clinic in a few days.
The next day, February 8, 2000, Saggers returned to defendant's emergency room, at approximately 12:00 p.m., complaining of chest and back pain, and breathing difficulty. He was administered fluids, prescribed an antibiotic, and a decongestant. He was discharged less than an hour after his arrival.
On February 9, 2000, at approximately 9:30 p.m., Saggers returned to defendant's emergency room for a third time. His body was now covered with chicken pox lesions, he was in respiratory distress, and was coughing up blood from his lungs. He was intravenously given an anti-viral medication, acyclovir, and other treatment, diagnosed with extensive varicella causing pneumonitis (pneumonia) or inflammation of the lungs. He was admitted to the hospital's intensive care unit.
While in defendant's intensive care unit, Saggers suffered respiratory arrest and succumbed to a coma. He was transferred to the University of Michigan Medical Center. Although he received life-saving treatment, the deprivation of oxygen to his brain left him with permanent and severe brain damage.
On January 9, 2002, plaintiff filed a complaint and affidavit of merit commencing this medical malpractice action. Plaintiff's complaint alleged that defendant (1) "failed to adequately treat [Saggers] on both February 6 and February 8, 2000," (2) "failed to hospitalize [Saggers] on February 6 and/or February 8, 2000," (3) "failed to order a chest x-ray in the emergency department of Defendant hospital in order to determine whether plaintiff was suffering from pneumonia," (4) "failed to prescribe an anti-viral medication for [Saggers] while he was in the emergency department on February 6 and February 8, 2000," and (5) "failed to monitor and observe [Saggers] for at least twenty-four hours by medical personnel so that the true nature of his medical condition could be ascertained."
Following extensive discovery, on May 28, 2004, defendant filed a motion to prohibit expert opinion testimony and for summary disposition. Defendant argued that plaintiff's medical malpractice claim was based in part on a claim that defendant failed to timely administer the anti-viral medication, acyclovir; however, acyclovir was approved for use and effective only if given within 24 hours of being exposed to the varicella virus. Because more than 24 hours had transpired between the time Saggers contracted the varicella and the time he first appeared at defendant's emergency room, the failure to administer acyclovir could not be a basis of medical malpractice. Further, plaintiff's expert's opinion that acyclovir should ha
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