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Warner Norcross + Judd LLP is a corporate law firm with over 230 attorneys serving clients in nine offices throughout Michigan. Among the largest law firms in Michigan, Warner works in virtually all areas of business law.

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In <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20150407_C317573_58_317573.OPN.PDF" target="_blank" rel="noreferrer noopener"><em>Jones v. Botsford Continuing Care Corp.</em>, No. 317573</a>, the Court of Appeals held that a plaintiff in a medical malpractice action need only show that it reasonably believes an expert who signs an affidavit of merit is qualified to testify at trial and not that the expert is actually qualified to testify.&nbsp; Therefore, the Court of Appeals reversed the trial court’s order granting defendants’ motion for summary disposition because it was reasonable for plaintiff to believe that its affiants were qualified to testify in this case. &nbsp;

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Amos Jones was admitted to Botsford Continuing Care (BCC) after he was hospitalized for a stroke. Thereafter, medical personnel at BCC inserted a feeding tube into Jones’s stomach because he was having trouble swallowing. Jones became agitated by the tube and pulled it out. A nurse improperly reinserted the tube and, as a result, food was released outside Jones’s stomach. The leak caused a massive infection that ultimately killed Jones.

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Jones’s wife, as personal representative to his estate, mailed a notice of intent to file a medical malpractice claim to BCC and its agents responsible for Jones’s care. His wife attached two affidavits of merit as required by statute. One of the affidavits was signed by a doctor board certified in internal medicine and geriatric medicine. The other affidavit was signed by a registered nurse (RN). Defendants asserted that the affidavits filed by plaintiff did not satisfy statutory requirements because plaintiff could not have reasonably believed that the physician and nurse were qualified to offer testimony at trial. Specifically, defendants argued that the physician affidavit needed to be signed by a family practitioner because the doctor in question was board certified in family medicine. Similarly, defendants argued that the nurse affidavit needed to be signed by a licensed practical nurse (LPN) rather than RN. The trial court granted the defendants’ motions for summary disposition because the affiants did not satisfy the requirements of MCL 600.2169(1), which governs whether an expert may provide standard of care testimony at trial.

The Court of Appeals held that the affidavits were proper because it was reasonable for plaintiff to believe that the affiants met the requirements of MCL 600.2169 at the time the affidavits were signed. The court reasoned that the trial court focused on the wrong standard because the estate was not required to show that the affiants <em>actually</em> met expert witness requirements for purposes of trial testimony since discovery had not yet commenced. The court then analyzed what information was available to plaintiff at the time the affidavits were signed.

First, the court explained that there is a question of fact whether the nurse who improperly inserted the tube was a RN or LPN because the clinical notes at the time of reinsertion do not specify one way or the other. Second, the court rejected defendants’ argument that since the physician in question was not board certified in geriatrics, it was unreasonable for plaintiff to assume that a geriatric doctor could possibly testify in this case. The court noted that the physician in question listed on his website that he specializes in geriatrics and further opined that it was reasonable to think that the most relevant physician specialty in a nursing home was geriatric medicine. Additionally, the physician, although board certified in family medicine, holds a certificate of added qualification in geriatric medicine, which the court held was congruent to board certification. Therefore, the Court of Appeals reversed the trial court’s holding and remanded the case back for further proceedings consistent with the court’s opinion.

Judge Donofrio <a href="http://publicdocs.courts.mi.gov:81/OPINIONS/FINAL/COA/20150407_C317573_59_317573P.OPN.PDF" target="_blank" rel="noreferrer noopener">concurred in part and dissented in part</a>. Specifically, Judge Donofrio agreed that it was reasonable to believe the nurse in question was a RN because information to the contrary was unavailable at the time the affidavit was signed. However, he disagreed that it was reasonable to believe the plaintiff’s physician held the relevant board certifications to sign an affidavit of merit. Judge Donofrio reasoned that the plaintiff’s affiant and the physician in question do not hold the same one relevant specialty—one being board certified in geriatrics and the other being board certified in family medicine—and therefore because the physicians do not share the same board certification, the expert was not qualified to sign an affidavit of merit.

Partner

Jason L. Byrne

Labor and Employment

COA holds that an affidavit of merit in a medical malpractice action is proper where it was reasonable to believe an expert is qualified to testify at trial at the time the affidavit was signed

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COA holds that an affidavit of merit in a medical malpractice action is proper where it was reasonable to believe an expert is qualified to testify at trial at the time the affidavit was signed

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