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STATE OF MICHIGAN COURT OF APPEALS

RUTH ALDRICH, as Personal Representative of the Estate of STEVEN ALDRICH, Deceased, Plaintiff-Appellant/Cross-Appellee, v MID MICHIGAN MEDICAL CENTER, ROBERT GENOVESE, M.D., and RODNEY DIEHL, D.O., Defendants-Appellees/CrossAppellants.

UNPUBLISHED September 22, 2009

No. 281553 Midland Circuit Court LC No. 03-006551-NH

Before: Sawyer, P.J., and Murray and Stephens, JJ. PER CURIAM. In this medical malpractice cause of action, plaintiff Ruth Aldrich appeals as of right from the trial court's grant of summary disposition in favor of defendants Mid Michigan Medical Center, Robert Genovese, M.D., and Rodney Diehl, D.O. Plaintiff asserts that the trial court erred in granting defendants summary disposition after concluding that plaintiff's notice of intent and affidavits of merit were statutorily deficient. Plaintiff further asserts that the trial court erred in denying plaintiff's motion to disqualify the trial court. Additionally, Mid Michigan Medical Center, Dr. Genovese and Dr. Diehl cross-appeal the trial court's denial of their earlier motions for summary disposition, which alleged that plaintiff failed to establish proximate causation. We hold that although the trial court erred in concluding that plaintiff's notice of intent and affidavits of merit were deficient, defendants are entitled to partial summary disposition because plaintiff failed to establish that defendants proximately caused decedent Steven Aldrich to lose sexual function. However, plaintiff's cause of action should not have been dismissed with prejudice where her claim relating to decedent's pain and suffering has not yet been resolved. I. Factual Premise This cause of action arises out of decedent's February 14, 2001, visit to the emergency room at Mid Michigan Medical Center. Decedent was admitted to the emergency room upon complaining of chest pains. He was placed on a saline, nitroglycerine and heparin drip at approximately 3:15 a.m. At approximately 5:00 a.m., decedent developed an erection. He did not initially inform hospital personnel about the condition. However, decedent met with Dr. Genovese around 9:00 a.m. to discuss his chest pains. Dr. Genovese concluded that a cardiac -1-

catheterization needed to be performed. Shortly after the 9:00 a.m. meeting, decedent called Dr. Genovese back to his room to tell him about the erection. Consequently, Dr. Genovese ordered the nitroglycerine drip to be stopped. Dr. Diehl performed the cardiac catheterization at approximately 10:50 a.m. While Dr. Diehl testified that he was unaware of the erection at the time of the procedure, there is evidence in the record that indicates the nursing staff commented on the erection while they were preparing decedent for the catheterization. However, nothing was done to treat the condition until approximately 8:00 p.m., when Dr. Diehl ordered the application of a cold compress. By 9:30 p.m. the condition had not subsided and the hospital staff contacted Dr. Richard Mills, a urologist. Dr. Mills subsequently performed an aspiration procedure to drain the penis of blood, which he hoped would relieve the erection. That procedure proved ineffective. Consequently, Dr. Mills performed a shunt procedure at 4:30 p.m. on February 15, 2001. As a result of that procedure, it appears that decedent lost all sexual function of his penis. He died a short time later from an unrelated condition. II. Statutory Sufficiency of the Notice of Intent and Affidavits of Merit Plaintiff first contends that the trial court erred in determining that her notice of intent was statutorily deficient. We agree. This Court reviews a trial court's decision regarding summary disposition de novo. Dressel v Ameribank, 468 Mich 557, 561; 664 NW2d 151 (2003). This Court's review is limited to the evidence that was presented to the trial court. Pena v Ingham Co Road Commission, 255 Mich App 299, 313 n 4; 660 NW2d 351 (2003). Furthermore, this Court must review the evidence in the light most favorable to the non-moving party. Corley v Detroit Bd of Ed, 470 Mich 274, 278; 681 NW2d 342 (2004). The trial court determined that plaintiff's notice of intent was deficient where it failed to adequately set forth the applicable standard of care and where it failed to explain how the alleged breach of that standard proximately caused decedent's injuries. Pursuant to MCL 600.2912b(1), a party must send a notice of intent to any healthcare facility or professional at least 182 days before it commences any action for medical malpractice. Furthermore, MCL 600.2912b(4) sets forth a number of requirements with which the notice of intent must comply. Specifically, it states: (4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following: (a) The factual basis for the claim. (b) The applicable standard of practice or care alleged by the claimant. (c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility. (d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.

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(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice. (f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim. [MCL 600.2912b(4).] Plaintiff's notice of intent was approximately five pages long. It began with a brief recitation of the factual basis for the claim. It then contained a section to address each of the statutory requirements. Regarding the standard of practice of care, the notice of intent provided the following: The standard of care required the treating physicians to be aware of, and monitor the condition of Plaintiff throughout his hospital stay, and the treatment that was being provided to him by the various specialists who had been called in to treat Mr. Aldrich. It was the admitting doctor's responsibility, Dr. Hill, to be aware of the overall condition of the patient and the needs of the patient and to supervise the consultants and to obtain appropriate and as needed care for Mr. Aldrich and his priapism condition. However, the admitting physician neither supervised nor obtained a consult during the entire course and development of the priapism. The standard of care also requires the nurses who were attendant to the Plaintiff upon his admission and thereafter, throughout the course of his hospitalization along with the individuals who were involved in the catheterization and Dr. Diehl, to obtain the proper expertise to understand the problem and treat the problem. The standard of care required the nurses to recognize that a cardiologist would not be able to treat such a problem, and were required to bring this to the attention of the attending physician, and/or an appropriate specialist. The standard of care required them to notify the attending doctor and a specialist in light of the priapism condition. Furthermore, the standard of care would require them to take the condition seriously, and not to take a cavalier attitude concerning this most serious condition, which is what occurred during the course of the hospitalization. It was further the standard of care for the attending cardiologist, Dr. Genovese, to recognize immediately the problem, and further recognize the nitroglycerine would not be the cause of the problem. The standard of care further required him to recognize that he was not in a position to diagnose the cause of the priapism, and was also not in a position to treat the priapism. The standard of care further required him to notify the attending physician of the problem immediately or call a specialist to treat the problem. In granting the motion for summary disposition, the trial court declared that the notice of intent failed to provide a particularized standard of care for each defendant. While it is true that case law requires the provision of a particularized standard of care for each defendant, this Court -3-

concludes, for the reasons stated below, that the trial court erred in concluding that the above standard of care statement was deficient. Defendants support their contention that the notice of intent must include a specific standard of care for each named individual by citing to Roberts v Mecosta Co Hosp, 470 Mich 679; 684 NW2d 711 (2004) (also known as Roberts II). In Roberts II, the plaintiff had complications while pregnant and was diagnosed as having experienced a spontaneous abortion. Id. at 687. A D & C procedure was to be performed. Id. Following the procedure, the plaintiff continued to experience pain. Id. Upon returning to her doctor, it was revealed that she did not have a spontaneous abortion, but had experienced an ectopic, or tubal, pregnancy that caused her fallopian tube to burst. Id. She subsequently had her fallopian tubes removed and was no longer able to have a child. Id. The plaintiff in Roberts II subsequently sent a notice of intent to a variety of parties that included a doctor, a physician assistant and a medical facility. Roberts II, supra at 687. Her theory was essentially that she was misdiagnosed and, as a result, she lost her ability to have children. Id. at 690. Regarding the applicable standard of care, the plaintiff stated that the named individuals were required to "provide the Claimant with the services of competent, qualified and licensed staff of physicians, residents, interns, nurses and other employees to properly care for her, render competent advice and assistance in the care and treatment of her case and to render same in accordance with the applicable standard of care." Id. at 689. In finding that the plaintiff's standard of care was deficient, the Court first explained that because the notice of intent is sent prior to any discovery, the standard of care provided in that document need not prove to be legally correct in order to be sufficient. Id. at 691. The Court then stated, "[h]owever, what is required is that the claimant make a good-faith effort to aver the specific standard of care that she is claiming to be applicable to each particular professional or facility that is named in the notice." Id. at 691-692. The Court further observed: Here, several different medical caregivers were alleged to have engaged in medical malpractice. Yet, rather than stating an alleged standard of practice or care for each of the various defendants-a hospital, a professional corporation, an obstetrician, a physician's assistant, and an emergency room physician-plaintiff's notices of intent allege an identical statement applicable to all defendants. [Id. at 692.] The Court noted that the standard of care in a medical malpractice cause of action might be derived from statute or from common law. Id. at 692 n 8. It further stated that the standard of care that applies to one medical professional would not likely be the same as the standard that applies to a different type of professional. Id. The Court ultimately concluded that the notice of intent was deficient regarding the statement of the standard of care. Id. at 694-695. This Court applied the Roberts II decision in Gawlik v Rengachary, 270 Mich App 1; 714 NW2d 386 (2006). In Gawlik, the plaintiff's notice of intent stated the following regarding the standard of care: The applicable standard of care required is that of reasonably prudent physicians and surgeons and medical care providers in the same or similar circumstances as those who were conducting surgical procedures, and caring for -4-

the patient, Cynthia Gawlik, from the time of her admission on November 30, 1999, and subsequent surgeries, including the ACDF by Dr. Rengachary from neurosurgery on December 1, 1999, and post operative care through discharge on January 12, 2000. Pursuant to MCL 332.21513 entitled "Duties and Responsibilities of Owner, Operator or Governing Body of the Hospital," the owner, operator and governing body of a hospital licensed under this Article (A) are responsible for all phases of the operation of the Hospital, selection of the medical staff, and quality of care rendered in the Hospital. Defendant DMC and Harper Hospital had this statutory duty in addition to its responsibly to act reasonably under the circumstances which existed in this case. [Id. at 4.] Upon noting that the notice of intent presented one short and broad standard of care for all the potential defendants and failed to present a standard for the treating hospital, the Court stated that the notice was deficient. Id. at 10-11. In both Roberts II and Gawlik, the standard of care section in the notice of intent was extremely short and general. In the present case the standard of care section was fairly lengthy and detailed. Rather than simply state that the same standard of care applied to each medical professional, the notice of intent referenced people by name and made a good faith effort to state what the standard required each particular person to do. Therefore, the concerns in Roberts II and Gawlik simply do not exist in this case. The trial court erroneously concluded (with very little explanation) that the notice of intent was deficient regarding the standard of care section. Therefore, the grant of summary disposition was improper to the extent that it was dependant on this particular point of law. In addition to concluding that the notice of intent failed to provide a particularized standard of care, the trial court also concluded that the notice failed to explain how the alleged breach of the standard of care proximately caused decedent's injuries. Regarding proximate causation, the notice of intent provided: As a result of all the breaches of the standard of care as indicated above, i.e., the failure to take any action or to notify the proper persons, and in failing to properly diagnose the problem caused the serious injuries and damages to the Plaintiff including severe pain for the rest of his life, and impotency. Further, their failure to take action promptly did require later shunting and operation. In granting summary disposition, the trial court concluded that the above statement was deficient where it merely concluded that the breach was the proximate cause of the injury but did not explain how the breach caused the injury. By way of example, the proximate cause language of the NOI against the nursing staff stated: "That as a direct and proximate result of Mid Michigan Medical Center, through its nursing staff's, negligent acts and/or omissions, as set forth above, the Claimant has suffered continuing pain, permanent scarring, impotence, and permanent loss of the sexual function of his penis. He was also subjected to more intrusive surgical intervention than would have been required if the -5-

priapism had been diagnosed and treated earlier." [Affidavit of Merit of Jennifer David, volume I of the lower court file.] Roberts II also addressed the level of specificity that was required in the proximate causation section of a notice of intent. In explaining that the plaintiff's notice of intent was deficient regarding the proximate causation statement, Roberts II stated: Plaintiff's notices of intent state that "as a result of [defendants'] negligence ..., [plaintiff] is now unable to have any children." At first blush, this may appear to satisfy the proximate causation requirement of

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