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A Better Partnership
March 29, 2015

COA: dismissal of medical malpractice action against doctor without prejudice does not bar an action against doctor’s principals

The Court of Appeals held in Estate of Grimmer v. Lee, No. 318046, that a plaintiff may continue with a medical malpractice action against a doctor’s professional corporations on the basis of vicarious liability even when the doctor has been dismissed from the case without prejudice. Therefore, the Court of Appeals reversed the trial court’s order granting summary disposition in favor of defendant professional corporations.
Melody Grimmer died when a hematoma caused her body to go into cardiac arrest just one day after undergoing a cardiac catheterization. One of the defendants, Dr. Vasquez, examined Melody immediately after her procedure and discovered the presence of the hematoma, but did not operate to remove it. Donald Grimmer, Melody’s husband, brought a medical malpractice action and in his complaint, alleged professional negligence against Dr. Vasquez and several other doctors, but Grimmer attached only one affidavit of merit against Dr. Vasquez. Grimmer also brought the action against the doctors’ professional corporations on the theory of vicarious liability.
The other doctors and their professional corporations, BRHV and BRMC, filed for summary disposition on the basis that the complaint did not include affidavits of merit against them. Before the motions for summary disposition were heard, the trial court dismissed the action against Dr. Vasquez without prejudice because he was not served with process. The trial court subsequently granted the other motions for summary disposition of the doctors, BRHV, and BRMC.  It also held that BRHV and BRMC could not be held vicariously liable for any of the doctors, including Dr. Vasquez.
The Court of Appeals held that the trial court erred when it summarily dismissed the vicarious liability claims against BRHV and BRMC stemming from Dr. Vasquez’s negligence. The Court based its opinion on two reasons. First, the Court reasoned that none of the defendants’ pleadings specified that summary disposition was sought regarding vicarious liability claims related to Dr. Vasquez. The Court explained that granting summary disposition for something that was not pled is contrary to due process requirements and does not afford Grimmer an opportunity to be heard regarding that issue.  Second, the Court of Appeals reasoned that the trial court improperly concluded that because the case against Dr. Vasquez was dismissed without prejudice, BRMC and BRHV could not be held responsible for his negligence. To the contrary, Grimmer had the ability to sue both Vasquez and his principals—BRMC and BRHV—because the case against Dr. Vasquez was dismissed without prejudice. Because the case was dismissed without prejudice, it was not adjudicated on the merits. Therefore, the Court of Appeals reversed the trial court’s order granting defendants’ motion for summary disposition and remanded the case back for proceedings consistent with its opinion.

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