Opinion
362008
12-14-2023
LATOYA SNEAD, Personal Representative of the ESTATE OF JOSEPH H. WILLIAMS, IV, Plaintiff-Appellant, v. ASCENSION PROVIDENCE HOSPITAL, formerly known as PROVIDENCE PARK HOSPITAL, MAPLE MANOR REHAB CENTER OF NOVI, INC., THE MANOR OF NOVI, and RHEMA-NOVI, INC., doing business as MANOR OF NOVI[1], Defendants-Appellees.
UNPUBLISHED
Oakland Circuit Court LC No. 2020-181231-NH
Before: Letica, P.J., and O'Brien and Cameron, JJ.
PER CURIAM.
In this medical malpractice action, the trial court initially granted summary disposition in favor of defendants, Ascension Providence Hospital, formerly known as Providence Park Hospital (Ascension), Maple Manor Rehab Center of Novi, Inc. (Maple Manor), and Rhema-Novi, Inc., doing business as The Manor of Novi (Manor of Novi), and dismissed plaintiff's case without prejudice. The trial court subsequently dismissed the case with prejudice on reconsideration. Plaintiff appeals as of right. We affirm.
The decedent, Joseph H. Williams, IV, was the original plaintiff in this matter, but he died in 2020. The caption was amended to reflect the proper plaintiff while the instant appeal was pending. Williams v Ascension Providence Hosp, unpublished order of the Court of Appeals, entered October 11, 2023 (Docket No. 362008).
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
The decedent, Joseph H. Williams, IV, was treated at each defendant's respective facility in 2017. While in their care, Williams developed several pressure sores or decubitus ulcers that worsened over the course of his admissions, eventually became necrotic and infected, and required extensive treatment, antibiotic therapy, and multiple surgical debridements. Plaintiffs claims of medical malpractice stem from the allegedly negligent conduct of each defendant's nursing staff.
Plaintiffs complaint was accompanied by an affidavit of merit (AOM) authored by registered nurse Sharon Caprara. After discovery was complete, defendants collectively filed seven summary disposition motions, but the trial court addressed only three on the merits. In those motions, each defendant argued that Caprara-the only expert plaintiff proffered during discovery-did not meet the statutory requirements to testify as an expert because she devoted the majority of her professional time to administrative duties, rather than to active clinical practice or the instruction of nursing. Defendants opined that they were entitled to summary disposition because plaintiff did not have a qualified expert to support her claims. Ascension also sought summary disposition on the basis that plaintiffs AOM and complaint were defective in light of Caprara's lack of qualification. Plaintiff described Caprara's duties as director of nursing at a 150-bed nursing facility and argued that each activity came within the scope of the active clinical practice of nursing for purposes of expert qualification under MCL 600.2169. She also argued that if the court determined that Caprara was not qualified, plaintiffs counsel had a good-faith belief regarding Caprara's qualifications and plaintiff should be allowed to substitute one of her other proposed nursing experts in Caprara's place. The trial court agreed with defendants and granted their motions under MCR 2.116(C)(10). In doing so, however, the trial court opined that plaintiffs complaint should be dismissed without prejudice pursuant to our Supreme Court's warning in Ligons v Crittenton Hosp, 490 Mich. 61, 75; 803 N.W.2d 271 (2011), that "dismissal must be without prejudice unless other grounds for the dismissal exist, such as the expiration of the limitations period."
Maple Manor and Manor of Novi both moved for reconsideration, primarily arguing that dismissal with prejudice was the proper remedy because their dispositive motions challenged plaintiffs ability to come forward with necessary expert testimony, not the sufficiency of her AOM. Ascension concurred and joined in both codefendants' motions. In response to these motions and in a separate motion for reconsideration, plaintiff opined that the trial court reached the correct result with respect to the nature of the dismissal, but asked that if the court chose to reconsider its earlier ruling, it should also reconsider allowing plaintiff to amend her witness list to name a new nursing expert or otherwise allow her to rely on a different expert.
On reconsideration, the trial court agreed with defendants that it misapplied Ligons. The court acknowledged that defendants' motions were primarily predicated on Caprara's lack of qualification under MCL 600.2169(1), which rendered her unable to serve as an expert and therefore unable to establish the appropriate standard of care at trial. The court indicated that the distinction between a challenge to the AOM and inability to prove the standard of care was important, and the court had agreed that plaintiff could not establish the standard of care at trial. As such, the court granted defendants' motions for reconsideration and dismissed plaintiff's complaint with prejudice. It also denied plaintiff's motion for reconsideration with respect to a new expert witness. The court opined that allowing plaintiff to amend her witness list or name a new nursing expert would be inappropriate because discovery had concluded, and defendants would be severely prejudiced by having to essentially relitigate the entire case. Moreover, plaintiff's attorney was involved in a deposition of Caprara that took place before this case began. Despite his understanding of Caprara's qualifications, he proceeded with Caprara as plaintiff's only expert witness. Given this, the court did not believe it was in the interests of justice to allow plaintiff to amend her witness list.
The trial court noted that Ascension had challenged plaintiff's AOM, but was appropriately included in the court's reconsideration because Ascension also cited plaintiff's inability to establish the standard of care at trial as a basis for summary disposition.
II. DISMISSAL WITH OR WITHOUT PREJUDICE
Plaintiff first argues on appeal that the trial court erred by dismissing her case with prejudice. We disagree.
A. STANDARD OF REVIEW
We review "a trial court's decision on a motion for reconsideration for an abuse of discretion." Woods v SLB Prop Mgt, LLC, 277 Mich.App. 622, 629; 750 N.W.2d 228 (2008). An abuse of discretion occurs when the trial court's decision "falls outside the range of reasonable and principled outcomes." Jackson v Bulk AG Innovations, LLC, 342 Mich.App. 19, 24; 993 N.W.2d 11 (2022) (quotation marks and citation omitted). Whether to dismiss a case with or without prejudice is often within the discretion of the trial court, but the proper nature of a dismissal in the context of summary disposition is a question of law and, therefore, reviewed de novo. Rinke v Auto Moulding Co, 226 Mich.App. 432, 439; 573 N.W.2d 344 (1997).
B. LAW AND ANALYSIS
A party moving for reconsideration must generally "demonstrate a palpable error by which the court and the parties have been misled and show that a different disposition of the motion must result from correction of the error." Woods, 277 Mich.App. at 629, quoting MCR 2.119(F)(3). "The decision whether to grant dismissal with or without prejudice, by definition, determines whether a party may refile a claim or whether the claim is permanently barred." ABB Paint Finishing, Inc v Nat'l Union Fire Ins Co of Pittsburgh, Pa, 223 Mich.App. 559, 562; 567 N.W.2d 456 (1997). In accordance with res judicata principles, when a dismissal is granted on the merits of the case, dismissal should be granted with prejudice so as to preclude the plaintiff from refiling the same action against the same defendant. Id. at 562-563.
In its original ruling on defendants' dispositive motions, the trial court deemed dismissal without prejudice appropriate because "the only grounds for dismissal presented to this Court through any of the Motions is due to lack of qualification or factual support with regard to Plaintiff's expert . . . ." The trial court dismissed the case with prejudice on reconsideration because it recognized that summary disposition was warranted on the basis of plaintiff's failure to produce a qualified standard-of-care expert, and not solely because Caprara's lack of qualification rendered her AOM defective. Plaintiff contends that the trial court's initial interpretation of relevant caselaw was correct and required dismissal without prejudice.
In Ligons, 490 Mich. at 66-68, the plaintiff filed two AOMs with his complaint, neither of which fully satisfied the AOM requirements under MCL 600.2912b. This Court held that the defective AOMs required dismissal with prejudice because "no tolled time remained during which plaintiff could refile his suit after defendants successfully challenged his AOMs." Id. at 69. Our Supreme Court affirmed this Court's conclusion, observing that MCL 600.2912d(1) requires a plaintiff in a medical malpractice action to file an AOM along with his or her complaint. Id. at 72. Given the mandatory language of the statute, a complaint unaccompanied by an appropriate AOM is insufficient to commence the lawsuit, thus requiring dismissal. Id. at 72-73. Our Supreme Court cautioned, however, that "dismissal must be without prejudice unless other grounds for the dismissal exist, such as the expiration of the limitations period." Id. at 75.
Maple Manor and Manor of Novi moved for summary disposition under MCR 2.116(C)(10) because plaintiff relied solely on Caprara to establish the standard of care and breach thereof, but Caprara was not an expert under MCL 600.2169(1)(b), and could not provide expert testimony as to those elements of plaintiff's claim. Notably, neither of these defendants challenged plaintiff's AOM. Ascension, on the other hand, did argue that plaintiff's AOM was defective due to Caprara's lack of qualification, but it also opined that summary disposition was appropriate for a second, independent reason-namely, because Caprara's lack of qualification left plaintiff unable to establish the standard of care or breach. The trial court agreed that Caprara was not qualified to testify as an expert in this case, and that ruling is not challenged on appeal. Because each defendant sought summary disposition for reasons concerning the factual merits of plaintiff's claim, rather than strictly on procedural grounds, the trial court correctly determined on reconsideration that Ligons did not require dismissal without prejudice, and that dismissal with prejudice was the proper remedy.
Plaintiff challenges this interpretation of Ligons, arguing that the distinction between an AOM challenge under MCL 600.2912d and a challenge to an expert's qualification under MCL 600.2169 is immaterial because the former statute incorporates the qualification requirements of the latter. Plaintiff opines that, in cases where a witness who is not qualified under MCL 600.2169 is disqualified from authoring an AOM under MCL 600.2912d, a savvy defendant could obtain dismissal with prejudice by characterizing its argument as a challenge to expert qualifications. Plaintiff's position is unpersuasive because it fails to appreciate the nuances of the procedural postures at issue here.
Plaintiff is correct that the AOM statute incorporates the qualifications for expert witnesses in medical malpractice actions listed in MCL 600.2169, and that the statute requires a plaintiff to file an AOM "signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169." Crego v Edward W Sparrow Hosp Ass'n, 327 Mich.App. 525, 531; 937 N.W.2d 380 (2019), quoting MCL 600.2912d(1) (quotation marks omitted). Even so, plaintiffs suggestion that an expert's lack of qualification under MCL 600.2169 renders that expert's AOM per se defective is incorrect. MCL 600.2912d(1) does not require the plaintiffs AOM to be signed by a qualified expert, but rather "by a health professional who the plaintiff s attorney reasonably believes meets the requirements for an expert witness under section 2169." Id. (emphasis added.) See also Jones v Botsford Continuing Care Corp, 310 Mich.App. 192, 200; 871 N.W.2d 15 (2015) ("The fact that the Legislature used the 'reasonably believes' language demonstrates that there will be cases in which counsel had such a reasonable belief even though the expert is ultimately shown not to meet the criteria of MCL 600.2169(1).") This flexible standard makes sense because an AOM, as a component of the complaint, is prepared on the basis of limited information, without the benefit of discovery. Kalaj v Khan, 295 Mich.App. 420, 428; 820 N.W.2d 223 (2012). Moreover, the purpose of the AOM is to deter frivolous medical malpractice claims, Castro v Goulet, 312 Mich.App. 1, 8; 877 N.W.2d 161 (2015), not to establish the defendant's liability.
MCL 600.2169, on the other hand, addresses a witness's qualification to provide expert testimony in a medical malpractice case. Jones, 310 Mich.App. at 199. "The plaintiff in a medical malpractice action bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury." Cox v Bd of Hosp Managers for City of Flint, 467 Mich. 1, 10; 651 N.W.2d 356 (2002) (quotation marks and citation omitted). Expert testimony is necessary to establish the first, second, and fourth elements, Kalaj, 295 Mich.App. at 429, and failure to prove any single element is fatal to the plaintiffs claim, Cox, 467 Mich. at 10. For that reason, a plaintiffs inability to produce a qualified expert in a medical malpractice case commonly leads to summary disposition under MCR 2.116(C)(10) for failure to establish a question of material fact for trial. See, e.g., McElhaney v Harper-Hutzel Hosp, 269 Mich.App. 488, 497-498; 711 N.W.2d 795 (2006). Plaintiffs prediction that medical malpractice claims will be routinely dismissed with prejudice on the basis of a defective AOM under MCL 600.2169 lacks merit because dispositive motions under MCR 2.116(C)(10) are considered premature before discovery has been completed. Ensink v Mecosta Co Gen Hosp, 262 Mich.App. 518, 540; 687 N.W.2d 143 (2004). See also Watts v Canady, 253 Mich.App. 468, 471; 655 N.W.2d 784 (2002) (noting, in an appeal from denial of summary disposition on the basis of a defective AOM, that "[a]ny opinion regarding whether [the affiant] is qualified under § 2169 is premature at this stage of the proceedings"). After discovery has been completed, a challenge to the AOM on the basis of the affiant's qualifications as an expert, while not unheard of, is superfluous when the affiant is the plaintiffs only expert.
Here, the trial court held that the only expert plaintiff proffered during discovery was not qualified to testify as an expert under MCL 600.2169(1). Without a qualified expert, plaintiff was left unable to prove essential elements of her claim and dismissal was warranted. See Cox, 467 Mich. at 10 ("Failure to prove any one . . . element is fatal.") (quotation marks and citation omitted). And because that dismissal was premised on plaintiff's inability to produce evidence that would create a triable issue of fact regarding these elements, it involved the factual merits of plaintiffs claim. "Where a trial court dismisses a case on the merits, the plaintiff should not be allowed to refile the same suit against the same defendant and dismissal should therefore be with prejudice." ABB Paint Finishing, 223 Mich.App. at 563. The trial court did not abuse its discretion by dismissing plaintiffs case with prejudice on reconsideration.
III. NEW EXPERT WITNESS
Plaintiff further contends the trial court abused its discretion when it denied her request to amend her witness list or rely on another expert previously identified in her witness list. We disagree.
A. STANDARD OF REVIEW
A trial court's refusal to permit a litigant to name a new expert witness is reviewed for an abuse of discretion. Cox v Hartman, 322 Mich.App. 292, 312; 911 N.W.2d 219 (2017).
B. LAW AND ANALYSIS
In support of this alleged error, plaintiff reasons that the trial court failed to consider the factors outlined in Dean v Tucker, 182 Mich.App. 27, 32-33; 451 N.W.2d 571 (1990). Manor of Novi argues on appeal that Dean is not controlling under these circumstances because that case excluded an expert witness as a discovery sanction, whereas the instant appeal arises from the trial court's determination that plaintiff's expert was unqualified to testify at trial. We acknowledge Dean is similar to this case in certain respects, specifically that the plaintiff's claim of legal malpractice was resolved by summary disposition because she was barred from presenting necessary expert testimony. Id. at 29. But the legal question in Dean arose in the context of a discovery sanction for the plaintiff's failure to file a timely witness list. Id. Unlike this case, the trial court in Dean did not find the plaintiff's proposed expert unqualified. Here, plaintiff proffered expert testimony did not meet her burden of proof because Caprara was not qualified to testify as an expert under MCL 600.2169(1). Thus, plaintiff's reliance on Dean is misplaced.
Dean is not strictly binding on this Court under MCR 7.215(J)(1), Secura Ins Co v Stamp, 341 Mich.App. 574, 581 n 5; 991 N.W.2d 244 (2022), but the factors identified in that case have been incorporated in more recent, binding decisions, see, e.g., Duray Dev, LLC v Perrin, 288 Mich.App. 143, 165; 792 N.W.2d 749 (2010).
Instead, this case is more analogous to Cox, 322 Mich.App. at 312-316. In relevant part, the plaintiff in Cox sued a registered nurse for malpractice that purportedly occurred during the birth of the plaintiff's daughter. Id. at 296-297. After discovery concluded, the nurse defendant moved for summary disposition on the basis that the plaintiff's expert was not qualified under MCL 600.2169(1). Id. at 297. The trial court agreed and granted the motion. Id. at 298. The plaintiff then moved to name a new nursing expert and amend her AOM, and the trial court denied the plaintiff's motion. Id. On appeal, this Court rejected the plaintiff's claim of error, noting the plaintiff was on notice that the expert's qualifications were in question and could have moved to name a new expert much earlier. Id. at 313. Yet the plaintiff chose to rely only on the challenged expert. Id. Moreover, the plaintiff had not acted with diligence relative to expert discovery throughout the case and had yet to identify a new expert at the time the trial court heard the plaintiff's motion. Id. at 315-316. At that point, the case had been pending for 22 months, and the trial was to be held three months later. Id. at 316. This Court agreed with the trial court that a new witness at that stage would be prejudicial to the defendant and concluded that the trial court's ruling was within the range of principled outcomes. Id.
The instant case is very similar to Cox as to this issue. Once the proposed expert had been deposed in Cox, the plaintiff was aware that the expert's qualifications were in question because she revealed that the majority of her time had been devoted to instructing or practicing as a nurse practitioner, rather than as a registered nurse. Id. at 313. Here, Caprara's qualifications were likewise revealed during her deposition, including the type of work she had performed during the year preceding the alleged malpractice. In fact, Ascension also produced evidence that plaintiff's counsel should have been aware that Caprara was unqualified even before the complaint was filed because he had participated in a deposition in an unrelated case in which Caprara admitted that she had spent most of her professional time attending to administrative duties. Thus, plaintiff was on notice that Caprara might not meet the statutory requirements for expert qualification.
The nursing defendant in Cox moved for summary disposition approximately three months after the expert's deposition, challenging the expert's qualifications, and the trial court did not rule in the nursing defendant's favor for several additional months. Id. Here, there was a similar delay of over four months between the filing of defendants' dispositive motions and the trial court's initial grant of summary disposition. During this time, plaintiff could have sought leave to amend her witness list or to reopen discovery to elicit testimony from a previously named expert. But like in Cox, plaintiff relied solely on Caprara's testimony in opposing summary disposition and declined to take any precautionary steps to protect her claims in the event the trial court agreed with defendants that Caprara was unqualified to testify as an expert witness.
Plaintiff's conduct during discovery is also analogous to the circumstances at issue in Cox. In Cox, the trial court had to order the plaintiff to specifically identify which of several possible experts would be called at trial and compel production of the expert or experts for deposition. Id. at 315. Although the defendants in this action did not resort to motion practice to compel discovery, plaintiff gave defendants reason to believe Caprara would be plaintiff's only expert at trial. Manor of Novi, at least, repeatedly requested depositions of plaintiff's trial experts, and Caprara was the only expert produced. Manor of Novi also asked for confirmation that the other experts identified on plaintiff's witness list would not be proffered at trial. That request apparently went unanswered, but defendants could reasonably infer from plaintiff's silence and failure to produce any other expert during discovery that she intended to rely exclusively on Caprara's opinions at trial.
This case is also analogous to Cox in that plaintiff did not identify which expert she would rely on in lieu of Caprara, either in her response to defendants' summary disposition motions or in her own motion for reconsideration. See id. at 316 ("Even on the date of the hearing on plaintiff's motion to add any new expert witness, plaintiff's counsel still had not retained a new expert witness and had not provided any notice of the identity of a new expert witness to defendants . . . .").
We note that plaintiff refiled her complaint, this time supported by an AOM from registered nurse Laura Elliott, after the trial court's initial grant of summary disposition, but before it granted summary disposition with prejudice on reconsideration. Elliott's AOM and identity as a prospective expert were first made part of the record in this case in November 2022, after the trial court granted the final order from which plaintiff appealed. Elliott was not previously identified as a proposed expert, so this issue is most aptly viewed as involving an amendment, despite plaintiff's repeated references to calling a previously named witness.
The only notable difference between Cox and this case is that plaintiff included her request to rely on a different expert in her response to two of the summary disposition motions, while the Cox plaintiff did not raise the issue until after summary disposition had been granted. Id. at 298. This distinction does not undermine the authoritative value of Cox because the fact remains that plaintiff did not establish a genuine issue of material fact in response to defendants' dispositive motions. When the factual sufficiency of a claim is tested under MCR 2.116(C)(10), the plaintiff may not avoid summary disposition by merely promising to produce additional evidence. Shaw v City of Dearborn, 329 Mich.App. 640, 651-652; 944 N.W.2d 153 (2019).
The trial court ultimately denied plaintiff's request to name a new expert or rely on a previously named expert, reasoning that doing so would be prejudicial to defendants so late in the litigation. When defendants moved for summary disposition, this case had been pending for over two years, and another seven months elapsed before the trial court denied plaintiff's motion for reconsideration with respect to relying on a different expert witness. Discovery closed several months before the dispositive motions were filed, and two prospective trial dates were adjourned before this case concluded. A plaintiff cannot be given endless opportunities to develop his or her case, and the trial court did not abuse its discretion by concluding that plaintiff's request to rely on a different expert would be unfairly prejudicial. See Cox, 322 Mich.App. at 315-316 (agreeing with the trial court that the defendants would be prejudiced in trial preparation by late amendment).
Affirmed.
Anica Letica, Colleen A. O'Brien, Thomas C. Cameron, JJ.