Malpractice, Summary Disposition, Premature, Discovery

In Van Buren v Covenant Healthcare System, et al, Unpublished Per Curiam (#297019, 1/5/2012) the Court of Appeals reaffirmed that a motion filed pursuant to MCR 2.116(C) may not be granted unless “no factual development could possibly justify recovery.” Spiek v Dep’t of Transportation, 456 Mich 331 (1998).  The Court of Appeals held that even if some or all the relevant actions or omissions were committed by medical professionals, further discovery was appropriate and it was thereby premature for the trial court to determine by summary disposition whether those actions or omissions involved medical judgment.

In Bryant v Oakpoint Villa, 471 Mich 411 (2004) the Supreme Court held that an ordinary negligence claim may be prosecuted by a patient against a medical provider where either of two circumstances are present: (a) the allegedly negligent actions were not taken in the course of a professional relationship; or (b) the claim does not require expert testimony because it does not involve questions of medical judgment beyond the realm of common knowledge and experience. Id. at 422. 

Bryant makes clear that the issue of whether the claim sounds in medical malpractice or negligence is not to be resolved through generalized descriptions of the nature of the claim, but instead, by a specific review of the facts. In Van Buren, supra, the complaint was necessarily drafted without access to proofs concerning which hospital employee was supposed to file the biopsy report, whether and when the report was actually filed and whether it was seen by or available to the surgeon. Indeed, other than knowing that her breasts were removed despite a biopsy report showing an absence of cancer, plaintiff, like the trial court, has actual knowledge of almost none of the salient facts. The complaint, accordingly, speaks broadly and encompasses both medical and non-medical personnel. Whether or not the persons ultimately responsible for the alleged miscommunication were medical professionals or clerks, secretaries or other non-medical personnel is not yet known, except perhaps to defendants.