Dacon v. Transue

490 N.W.2d 369, 441 Mich. 315

• Court: Michigan Supreme Court
• Decided: September 29, 1992
• Docket: 90339, (Calendar No. 7)
• Status: Published

Opinions

Brickley, J.

"[T]his is a medical malpractice action relating to the failure to administer chloramphenicol to Plaintiff’s Minor, who was suffering from meningitis.”¹ This appeal concerns whether the trial court abused its discretion by excluding the theory, first raised by plaintiff on the third day of trial, that defendants should also be liable for delaying the initial administration of antibiotics to Ericca. Because plaintiff neither pleaded this theory nor justified amending his pleadings to include it, we decide that the trial court did not abuse its discretion and affirm.

i

In April, 1974, nine months after she was born, Ericca Dacon suffered from a series of illnesses. Starting innocuously around April 11, they worsened progressively, culminating in bacterial meningitis by month’s end. On April 11, Ericca fell out of her crib and hit her head. Mrs. Dacon took her to the family pediatricians, Drs. Transue, Kim, and Lee. Dr. Mon Kim examined her and diagnosed a contusion of the head. Later that week, on April 15, Mrs. Dacon brought Ericca back to the pediatricians because she had developed a fever since the last visit. Dr. Thomas Lee treated Ericca that day and diagnosed an infection of the left inner ear. After prescribing Ilosone, an antibiotic, Dr. Lee sent Ericca home. Ericca’s condition then deteriorated considerably. On April 16, Ericca was admitted to Children’s Hospital. Dr. Green, who had treated Ericca for a congenital heart defect, diagnosed her condition as pneumonia and started her on Bicillin, a penicillin-family antibiotic. When Ericca was released from the hospital three days later, doctors prescribed oral ampicillin, which her mother gave to her for the next five days. When the ampicillin ran out on April 26, Dr. Lee saw Ericca. He prescribed Pen-Vee K, a penicillin-family antibiotic, and sent her home.

Three days later, on April 29, Mrs. Dacon took Ericca back to the pediatricians. This time Dr. Kim saw her. He examined Ericca, who appeared normal. As Mrs. Dacon was leaving, however, she mentioned that Ericca cried whenever her neck was pushed forward. Recognizing that such rigidity can be a symptom of meningitis, Dr. Kim immediately performed a physical examination, searching for further symptoms. He then ordered a complete blood count for Ericca. Informing Mrs. Dacon that he suspected meningitis, Dr. Kim prescribed Pediamycin and Dimetapp and sent mother and daughter home to await further instructions.

When the blood count came back, Dr. Kim told Mrs. Dacon that Ericca should be taken to St. John Hospital. She was admitted soon thereafter at 2:40 p.m. The intern on duty, Dr. Savin, performed a spinal tap, which revealed "grossly cloudy” spinal fluid. Dr. Savin sent the fluid on for laboratory analysis. When that analysis returned, Dr. Savin diagnosed Ericca’s condition as partially treated bacterial meningitis. Ericca was given ampicillin at 6:00 p.m. on April 29, 1974.

Performing his regular rounds the next day, April 30, Dr. Lee visited Ericca. She had improved little. He then decided to add chloramphenicol, another antibiotic, to the ampicillin Ericca had been receiving. The first dose of chloramphenicol was given in the afternoon on April 30. From that point forward, Ericca’s illness slowly but steadily improved. Although the infection got better, nurses noticed ominous neurological signs. Ericca seemed to favor one side of her body more than the other. The physicians, realizing that neurological complications often result from meningitis, attempted to halt the deterioration. By the time the illness had run its course, Ericca suffered from a generalized muscle weakness on the right side of her body known as right-sided hemiparesis and periodic seizures.

II

Eight years after Ericca’s bout with meningitis, Mr. Dacon, as next friend, sued both St. John Hospital and the family pediatricians. The complaint alleged that both defendants had committed malpractice and sought damages for Ericca’s injuries. The genesis of this appeal lies in paragraph 10(a)(7) of that complaint. Instead of specifying as precisely as possible what Ericca’s pediatricians did wrong, plaintiff merely alleged that they failed to provide "appropriate treatment and/or medication in appropriate dosage and/or duration.” In an attempt to get behind this studied ambiguity, defendants served an interrogatory requesting that plaintiff specify what "appropriate treatment” meant and how they failed to provide it.² Plaintiff chose not to answer directly. The only response defendants received was that plaintiff could not specify any particular breaches of the standard of care and that defendants could discover this information from plaintiff’s experts later.³ At this point, the matter rested.

Plaintiff’s other allegations were more concrete than his allegation in paragraph 10(a)(7). He alleged that Ericca’s pediatricians did not provide acceptable office treatment. These allegations focused on practices such as taking a medical history, doing a physical examination, and referring Ericca to specialists. Although referred to during testimony, plaintiff’s theory of the case did not hinge on them.⁴

Plaintiff’s theory focused on the medication Ericca received from her pediatricians. This theory evolved from three allegations in her complaint. She alleged that her pediatricians should have included ampicillin-resistant meningitis as a potential diagnosis of her problems, that they should have determined whether she did suffer from ampicillin-resistant meningitis, and that they should have made a presumptive diagnosis of ampicillinresistant meningitis. From these three allegations, the parties assumed that "appropriate treatment” meant treatment with a drug other than ampicillin. Their mutual understanding was stated simply by plaintiff in response to defendant’s motion for a discovery-only deposition: "[T]his is a medical malpractice action relating to the failure to administer chloramphenicol to Plaintiff’s Minor, who was suffering from meningitis.”⁵ Plaintiff linked the failure to provide effective antibiotics to Ericca’s complications with a powerful, straightforward theory. If the physicians had administered effective medication on April 29, Ericca would have recovered, thereby preventing her hemiparesis and seizures.

With this understanding, all parties prepared for trial. Three days before trial started, however, plaintiff’s counsel made a startling discovery. Reading Ericca’s medication chart closely, he noticed for the first time that Ericca received ampicillin at 6:00 p.m. on April 29. This discovery-surprised him because he had assumed all along that she had first received ampicillin at 1:00 p.m. on April 29.⁶ Plaintiff’s counsel kept this information and its implications to himself.

The trial began smoothly. Momentary difficulty arose when defendants moved for a directed verdict after plaintiff’s opening statement because it did not specify a concrete theory of liability. The judge agreed, but allowed plaintiff’s counsel to give another opening on the second day of trial. He did so and convinced the judge not to direct a verdict against his client. There was no mention of the information plaintiff’s counsel had found in Ericca’s medication chart.

On the third day of the trial, plaintiff started the presentation of his case. In response to a hypothetical question posed by plaintiff’s counsel, plaintiff’s expert witness, Dr. Mark Thoman, testified that treatment should begin within an hour of diagnosis. Defendants immediately objected,⁷ arguing that choice of medication, not delay in making a diagnosis, had always been the issue in the case. The judge then asked plaintiff’s counsel to show where the pediatricians’ failure to timely treat Ericca had been alleged. Although he had not known about the short delay in treatment until three days before trial, plaintiff’s counsel represented to the court that it had, in fact, been alleged because delay in treatment was a failure to provide appropriate treatment. After ascertaining that plaintiff had not responded to the pediatricians’ request to clarify the meaning of "appropriate treatment,” the judge ruled that appropriate treatment was too vague to provide reasonable notice to defendants and struck the witness’ answer.

Plaintiff’s counsel vigorously opposed this decision. His major argument was that the complaint had, in fact, properly notified defendants of the theory he discovered three days before. Counsel added another argument. Although never offering to show that defendants would not be prejudiced, he asked permission to amend his complaint to allege the new theory. The judge denied this request as well. The issue arose again a number of times during trial as plaintiff’s counsel attempted to find new ways to get the new liability theory into evidence. The trial judge listened to argument on the issue several more times and each time blocked plaintiff’s attempts.

Even after the court’s ruling during Dr. Tho-man’s testimony, plaintiff attempted to examine Dr. Kim regarding the standard of care with respect to the timing of therapy. After much discussion, the court again ruled such questions inadmissible. Plaintiff sought clarification of the court’s exclusionary ruling at the beginning of testimony the next day. The court made it clear that only standard of care evidence regarding the hour at which antibiotics should have begun was inadmissible. Plaintiff could, the court indicated, present causation evidence linking Ericca’s injuries to untreated meningitis.⁸ Counsel for the parties then drafted a cautionary instruction to prevent any confusion that may have arisen from plaintiff’s repeated attempts to introduce inappropriate standard of care evidence. Upon agreement from all the parties that the instruction fairly reflected plaintiff’s theory as pleaded,⁹ the court cautioned the jury in these words: "The timing as to when the initial antibiotic therapy was administered at St. John’s [sic] Hospital on April 29, 1974 is not an issue in the case. You may consider, however, the Plaintiff’s claim that the appropriate antibiotic therapy was not started on April 29, 1974.” (Instructions of the court.) After this, plaintiff presented the rest of his case and rested before the delay theory again became an issue.

In spite of his assurances to the court, plaintiff raised the delay theory once more during his cross-examination of Dr. Adnan Dajani, defendants’ expert witness. He asked Dr. Dajani whether he "would agree as a general proposition that time is of the essence in treating individuals with bacterial meningitis?” Plaintiff suggested that the reason for this statement was to challenge the credibility of Dr. Dajani’s testimony that the defendants had treated Ericca, in plaintiff’s words, in "exemplary fashion.” The court ruled that the statement involved the standard of care and that, under the previous rulings, plaintiff could not ask that question.¹⁰ This was the last time the delay issue arose._

Upon the conclusion of testimony, the jury was instructed to consider which medication ought to have been given and found that the pediatricians had committed malpractice.¹¹ It decided, however, that the malpractice had not been the proximate cause of Ericca’s injuries. The jury also decided that St. John Hospital had committed no malpractice.

Plaintiff then appealed in the Court of Appeals, raising three issues. The exclusion of plaintiff’s delay theory was one of them. In an unpublished opinion per curiam, the Court of Appeals affirmed the trial court’s ruling because it believed alleging "appropriate treatment” did not put defendants on reasonable notice of the delay theory. We granted leave to appeal limited to the question whether plaintiff’s delay theory was properly excluded. 437 Mich 1047 (1991).

hi

This case presents three issues.¹² The first is whether the trial court’s determination that plaintiff failed to comply with MCR 2.111 by failing to provide reasonable notice of the delay theory was correct. It was. The pleadings make general, conclusory allegations, which do not provide reasonable notice to the defendants. Such pleadings fail to meet the standard imposed by MCR 2.111 and Simonelli v Cassidy, 336 Mich 635; 59 NW2d 28 (1953).

The second issue is whether the trial court’s decision denying plaintiff permission to add the new theory to the pleadings was correct. It was. The Michigan Court Rules clearly indicate that amendments of pleadings offered during trial should be rejected unless plaintiff affirmatively establishes that defendants would not be prejudiced. MCR 2.118(C)(2). Plaintiff neither made nor asked to make this showing.

The last issue is whether the trial court applied its decision correctly. It did. The court firmly and correctly denied plaintiff the opportunity to offer standard of care evidence respecting the unpleaded liability theory, but also made it clear that plaintiff could present evidence detailing how leaving Ericca essentially unmedicated for roughly a full day after she was hospitalized without what plaintiffs contended was the appropriate drug may have harmed her.¹³ Plaintiff has simply failed to show an abuse of discretion.

A

Decisions concerning the meaning and scope of pleadings fall within the sound discretion of the trial court. Consequently, we only reverse when the court has abused that discretion. Simonelli v Cassidy, supra at 641, quoting Grant v Nat’l Manufacturer & Plating Co, 258 Mich 453; 243 NW 21 (1932). Establishing such an abuse is difficult. As this Court has stated, an abuse of discretion will be found when the decision is "so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment-but defiance thereof, not the exercise of reason but rather of passion or bias.” Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). With this standard in mind, we turn to review the decisions at issue in this appeal.

B

A complaint must provide reasonable notice to opposing parties. MCR 2.111(B)(1); Simonelli, supra; Jean v Hall, 364 Mich 434; 111 NW2d 111 (1961); Scott v Cleveland, 360 Mich 322; 103 NW2d 631 (1960). This rule is designed to avoid two opposite, but equivalent, evils. At one extreme lies the straightjacket of ancient forms of action. Courts would summarily dismiss suits when plaintiffs could not fit the facts into these abstract conceptual packages. At the other extreme lies ambiguous and uninformative pleading. Leaving a defendant to guess upon what grounds plaintiff believes recovery is justified violates basic notions of fair play and substantial justice. Extreme formalism and extreme ambiguity interfere equivalently with the ability of the judicial system to resolve a dispute on the merits.¹⁴ The former leads to dismissal of potentially meritorious claims while the latter undermines a defendant’s opportunity to present a defense. Jean and Scott, supra. Neither is acceptable.

In this case, plaintiff’s allegation that the defendant pediatricians did not provide "appropriate treatment and/or medication in appropriate dosage and/or duration” does not introduce any issue into the case. To assert a theory of liability, MCR 2.111(B)(1) specifies that an allegation must "state[ ] . . . the facts, without repetition, on which pleader relies,” and state "the specific allegations necessary reasonably to inform the adverse party” of the pleader’s claims.¹⁵ This allegation fails on both counts. First, it does not refer either specifically or generally to any facts. The first several paragraphs of plaintiff’s complaint set out in detail the underlying facts of the lawsuit. This allegation, unlike the others, gives no hint of the facts to which it refers. Without this, the allegation cannot be proper under the court rule.¹⁶ Second, the generality of the allegation defies definition. It delineates nothing specific about how the pediatricians erred. By literally alleging everything, this allegation alleges nothing. Allegations such as this do not provide reasonable notice to defendants and are not proper under MCR 2.111.

In response to the trial court’s ruling, plaintiff argued, not that the' complaint alleges the delay theory, but that the theory actually pleaded, failure to select an effective antibiotic, included the delay in the initial administration of antibiotics theory. Plaintiff’s other argument, raised before this Court, is that Simonelli v Cassidy, supra, a case requiring that plaintiffs provide reasonable notice to defendants, is obsolete and anachronistic and ought not to be followed. Neither argument is persuasive.

Plaintiff’s complaint does allege that Ericca should have received chloramphenicol instead of ampicillin.¹⁷ The failure to provide chloramphenicol, plaintiff contended, left Ericca essentially unmedicated for roughly twenty-four hours after entering the hospital. Lacking effective medication for this period, plaintiff suggested, led to the neurological damage Ericca suffered. This theory is distinct from the new theory advanced on the third day of trial. That theory suggested that the failure to initiate medication before 3:40 p.m. on April 29, 1974, caused harm to Ericca. The difference between these theories is subtle, but vast. The first criticizes the choice to use ampicillin. The second criticizes the failure to do anything between 2:40 p.m. and 6:00 p.m. on April 29, 1974.

The basis for plaintiff’s argument that, despite the difference, the latter breach of the standard of care was pleaded hinges on the temporal overlap in the proximate cause element of both theories. In the first theory, plaintiff sought to recover for harm Ericca may have suffered because she received chloramphenicol nearly twenty-four hours after entering the hospital. In the second, the unpleaded theory, plaintiff sought to recover for harm Ericca may have suffered because she did not receive medication for the first three and one-half hours in the hospital. These are distinct sources of harm. Plaintiff pleaded the failure to administer chloramphenicol as a theory of recovery but did not plead the delay theory. The trial court thus did not abuse its discretion in distinguishing between these theories and in excluding plaintiff’s delay in the initiation of therapy theory.

To extricate himself from the difficulties caused by his failure to plead the delay in the initial administration of antibiotics, plaintiff suggests that this Court ought to abandon Simonelli, supra, a case requiring that medical malpractice defendants be provided with reasonable notice of the claims against them.

In Simonelli, this Court affirmed a lower court’s dismissal of a complaint for failure to state a claim. The question we considered was whether the complaint before us provided sufficient facts to support a cause of action. This Court held that it did not. As we wrote, "Plaintiff has alleged negligence in failing to diagnose an undefined malady and in failing to take proper precautions to prevent injury during the course of the operation, but we find only one specific factual statement. . . . We do not believe that such allegations constitute a sufficient statement of facts to establish a cause of action.” Simonelli, supra at 643. Although decided in the context of a medical malpractice action, the Simonelli Court applied general principles of pleading. Illustrative is the Court’s reliance on cases such as Creen v Michigan Central R Co, 168 Mich 104; 133 NW 956 (1911), which indicated: " 'When a declaration fails to advise the defendant with reasonable certainty, according to the circumstances of the case, of the facts upon which plaintiff proposes to rely, and will seek to prove it, it cannot be sustained.’ ” Simonelli, supra at 644. Because Simonelli hinged on the importance of fair notice to the defendant and not some procedural quirk of 1950’s civil practice,¹⁸ its lesson is neither obsolete nor anachronistic and is one we will continue to follow.

Paragraph 10(a)(7) of plaintiff’s complaint alleges that the family pediatricians failed to provide "appropriate treatment and/or medication in appropriate dosage and/or duration.” Because plaintiff’s complaint reveals no factual support for this allegation, as required both by MCR 2.111(B)(1) and Simonelli, we decide that plaintiff did not plead the delay in the initial administration of antibiotics theory. This decision, however, does not resolve this appeal. In addition to arguing vociferously that he had, in fact, pleaded the delay in medication theory, plaintiff asked in the alternative to amend his complaint to include it. The trial court denied this request, and we now discuss this decision.

c

MCR 2.118 governs the amendment of pleadings. Specifically, MCR 2.118(C)(2) establishes strict requirements for amending a pleading during trial. Unless the party requesting amendment "satisfies the court that . . . amendment . . . would not prejudice the objecting party,” amendment "shall not be allowed.” This rule contrasts sharply with the free amendment allowed before trial. Ben P Fyke & Sons v Gunter Co, 390 Mich 649; 213 NW2d 134 (1973). Because plaintiff neither made this showing nor asked to make it, we find that the trial court correctly denied plaintiff permission to amend._

Plaintiff challenges this conclusion in two ways. First, he argues that defendants could not be prejudiced within the meaning of the court rule because they had notice of the allegation. Second, he points to several references to a "special record” made by trial counsel and suggests that we construe one of these as a request to make the showing MCE 2.118(C)(2) requires.

With regard to plaintiff’s first argument, the trial court correctly ruled that plaintiff had not provided reasonable notice to the defendants and that amendment would cause prejudicial surprise. This Court has long condemned the use of amendments at trial as a means of surprising defendants. Scott, supra. If defendants have been given reasonable notice, from whatever source, that plaintiff intended to assert the claim at trial, no prejudicial surprise within the meaning of MCE 2.118(C)(2) can occur.¹⁹ Because the plaintiff did not provide reasonable notice in this case,²⁰ amendment would clearly have caused prejudicial surprise. Simply put, plaintiff may not rely on a facially insufficient allegation, which necessitated the amendment, to alleviate prejudicial surprise caused by the amendment.

Other than claiming that defendants had notice of his new theory, plaintiff points to trial counsel’s references to making a special record. None refer, however, to making the showing required by MCR 2.118(C)(2). The first request came right after the trial court’s initial ruling that defendants had not been given reasonable notice of the delay theory. Plaintiff’s counsel asked simply to make a record showing the information plaintiff’s expert witness relied upon in forming his opinions with respect to the care given Ericca Dacon. This request had nothing to do with showing that the amendment would not prejudice defendants.

The only other request to make a special record came during plaintiff’s cross-examination of defendant’s expert witness, Dr. Adnan Dajani. Dr. Dajani had expressed an opinion that the pediatricians had treated Ericca appropriately. Plaintiff sought to impeach this opinion by focusing on the delay in initiating antibiotic therapy. The trial court ruled this line of cross-examination inadmissible. After this, plaintiff sought to make a special record, apparently to show that antibiotics should have begun within an hour of admission. Again, this request had nothing to do with any attempt to amend his complaint arid was not even remotely connected with showing absence of prejudice as required by MCR 2.118(C)(2). Without such a showing, a request to amend "shall not” be granted. The plaintiff failed to meet the burden imposed by MCR 2.118(C)(2). The trial court’s denial of permission to amend was therefore correct.

D

The remaining issue is whether the trial court applied its decision correctly. As discussed above, plaintiff argued that the failure to initiate effective antibiotic therapy promptly increased Ericca’s chances for permanent complications. On appeal, plaintiff suggests that the trial court excluded vital evidence relating to this theory. Our review of the record reveals that the trial court handled this difficult matter precisely and evenhandedly. Carefully distinguishing between standard of care evidence concerning the hour at which ántibiotic therapy should begin and causation evidence linking the chances of permanent complications to lack of effective medication, the court excluded only such evidence that described the standard of care as it related to what hour treatment should have started. Evidence concerning the relationship of untreated bacterial meningitis and Ericca’s complications was fully admissible and was received without objection. We find no error.

Plaintiff assigns as error the trial court’s exclusion of causation evidence. Plaintiff, however, could and did introduce evidence tending to show how the alleged failure to medicate with an effective antibiotic the first day, April 29, 1974, led to Ericca’s complications. In fact, every medical witness testified in support of plaintiff’s theory. The first evidence relating to the harm Ericca suffered came from Dr. Mark Thoman, plaintiff’s expert. He testified that the failure of the defendant physicians to arrest the disease process was a cause of Ericca’s complications. After expressing the opinion that unacceptable medical practice caused Ericca’s injuries, Dr. Thoman testified:

Taking the whole time period, is that she had been treated with antibiotics, the erythromycin which was the Ilosone, and then penicillin injection and penicillin orally, Ampicillin; these were all in the same family except for Ilosone, within the same family of antibiotics and she continued to have symptoms, so she was not getting well under the drugs that were given in that family. And with that, she went in and was given the same drug. And in my opinion, if it was a different family as I said, that would have been appropriate, or if that drug had been used, it should have been supplemented with other drugs that would have been more effective.

The theory, simply, was that Ericca would have improved with different antibiotics and that stopping the disease earlier would have prevented her complications. Dr. Kim agreed with Dr. Thoman in this regard. He indicated that the complications resulted from Ericca’s meningitis.

Q. Do you have an opinion, Dr. Kim, based on reasonable medical probability, as to whether or not the seizures and the right sided hemiparesis were caused as a result of the complication of the bacterial meningitis on April, 1974?

A. I think she has complications from the meningitis and got seizure and paralysis.

After eliciting this testimony, plaintiff moved on to another topic of examination. Dr. Thoman and Dr. Kim provided the testimony supporting the first element of plaintiff’s causation theory: Ericca’s untreated meningitis caused her complications.

Dr. Lee and defendant’s expert, Dr. Adnan Dajani, testified regarding the second element. Both doctors said that the longer a patient goes without appropriate antibiotic treatment, the greater the likelihood that complications such as Ericca’s would occur. While cross-examining Dr. Lee, plaintiff first established that the standard of care required appropriate antibiotics. Two questions designed to link that breach of the standard of care to the harm Ericca suffered followed:

Q. Do you have an opinion, based on reasonable medical probability, as to whether the seizures and the right hemiperises [sic] suffered by Erica [sic] Dacon at the time of the hospitalization in question, occurred as a communication of the meningitis experienced by the child?

A. Yes.

Q. Would you agree that based upon reasonable medical probability, that the longer a child goes without appropriate medical treatment such as inaccurate antibiotic therapy or inappropriate antibiotic therapy, that the greater the likelihood of a sequella [sic] to a condition of meningitis?

A. Yes.

Mr. Bleakley: That’s [sic] completes the cross-examination, Your Honor.

Plaintiff elicited similar testimony from Dr. Dajani.

Q. With respect to [the] concept of treatment of bacterial meningitis, is it not a well-recognized principle that the longer one goes without appropriate treatment the greater the likelihood of sequela?

A. I think that is a generally adhered to principle which I think is correct.

Thus, according to Dr. Lee and Dr. Dajani, treating Ericca with the wrong medication on April 29 increased her chances for injury.

Together, Dr. Thoman’s, Dr. Lee’s, and Dr. Dajani’s testimony presented a powerful case on causation to the jury. According to Dr. Thoman, defendant’s alleged breach of the standard of care allowed the disease process to continue and, according to Dr. Lee and Dr. Dajani, the longer Ericca suffered from meningitis, the more likely she was to suffer permanent injury.

Although the trial court did not bar plaintiff from introducing evidence showing how the delay in effectively medicating Ericca may have caused harm, the trial court did exclude evidence tending to establish that the standard of care required antibiotic treatment to begin within an hour of diagnosis. Irrelevant evidence, of course, is inadmissible. MRE 402. When evidence does not make a fact "of consequence to the determination of the action more or less probable,” it is not relevant. MRE 401. Because plaintiff did not plead that the standard of care was breached with respect to the hour at which treatment should have begun, facts tending to show that the standard of care required treatment at a certain hour were irrelevant. By this reasoning, exclusion of evidence relating the standard of care and the hour at which medication should have been administered would have been proper.

Upon reviewing the excluded statements, it is clear that all relate to the standard of care with respect to the hour that treatment should begin. For example, while examining Dr. Kim, plaintiff asked directly, "Can you indicate, please, what the standard of care calls for with respect to mode and timing of therapy?” (Emphasis added.) Plaintiff tried again soon thereafter, "Would you agree that the standard of care for a licensed and practicing physician specializing in pediatrics . . . that the standard of care is to promptly administer[ ] appropriate antibiotic treatment?”²¹ (Emphasis added.) Because the answer to these questions would not make any fact relevant to the action more or less probable, upon objection, the trial court correctly excluded them.

The result of the trial court’s repeated rulings was an exclusion of plaintiff’s unpleaded standard of care theory, but admission of plaintiff’s causation testimony in its full force. We perceive no abuse of discretion in either. We conclude the trial court properly applied its decision that plaintiff did not plead the delay in the administration of antibiotics as a violation of the standard of care.

IV

This appeal presented three issues. The first was whether plaintiff pleaded the delay in the initial administration of antibiotics theory. Because the complaint provides no factual basis or any specific statement of this theory, we hold that he did not. The second issue is whether plaintiff should have been allowed to amend his complaint to include the delay theory on the third day of trial. Because the court rule governing amendment of pleadings does not authorize such amendments without a showing that defendants would not have been prejudiced, denial of permission to amend was correct. Lastly, plaintiff challenges the trial court’s exclusion of proximate cause evidence. Because the court did not exclude causation evidence, we find no error. The judgment of the Court of Appeals is therefore affirmed.

Cavanagh, C.J., and Riley and Griffin, JJ., concurred with Brickley, J.

1 Plaintiff’s Response to Defendant Hospital’s Motion for Protective Order and To Set Expert Witness Fees, April 10, 1985.

2 The interrogatory read: "Set forth specifically what 'appropriate treatment and/or medication in appropriate dosages and/or duration’ you have reference to as stated in paragraph 10-A 7 of your complaint. Set forth when the standard of practice requires this treatment or medication. Be specific.”

3 Plaintiff responded by referring defendants to a response to a similar question: "I have been informed by my attorneys that the subject matter of this Interrogatory is one that calls for expert testimony. Discovery has not yet progressed to the point where expert witnesses can be identified. Upon completion of discovery and after expert witnesses have been selected for the purposes of testifying, plaintiff will further timely supplement answers to these interrogatories.” Plaintiff never supplemented this answer.

4 At trial, the essential claim was that Dr. Kim should not have prescribed Pediamycin for meningitis. All medical testimony agreed that to have done so would have been inappropriate. Dr. Kim contended that he did not prescribe Pediamycin for meningitis, but, rather, to respond to the dangers of infection resulting from Ericca’s congenital heart defect.

5 See n 1.

6 Of course, this assumption was open to serious doubt because Ericca was admitted to St. John Hospital at 2:40 p.m. on April 29. Plaintiff’s counsel later explained that he thought the time was 3:00 p.m., which would be 1500. Whichever incorrect time plaintiff’s counsel believed, it is clear he did not know that ampicillin was first given at 6:00 p.m. on April 29.

7 As the dissent points out, Dr. Thoman referred to when antibiotics should start once before defendants objected. From this, the dissent infers that defendants were fully on notice of this claimed negligence. A careful examination of the record indicates differently. When Dr. Thoman first mentioned when antibiotics should begin, it was in response to a general statement of good medical practice. Nothing in the context or the question indicates that this described the applicable standard of care, see, generally, Lince v Monson, 363 Mich 135, 139-140; 108 NW2d 845 (1961), or that defendant pediatricians had somehow violated the standard of care. When plaintiff did suggest that Dr. Kim violated the standard of care in this regard, defense counsel moved to strike the answer.

8 The Court: I don’t know how to say it any more simply [than] the time of medication that was given is not the issue. The kind of medication that was given is the issue.

Mr. Bleakley, can I have [your] assurance that you will refer to the giving of medication by day rather [than] hour?

Mr. Bleakley: You have my assurance.

And just so I’m clear, I’m planning on arguing on proximate cause basis that a delay of one day of administering the appropriate antibiotics caused this child’s brain damage.

The Court: Do you have any problem with that?

Mr. Roth: No.

Mr. Bleakley: That’s all — I think you have instructed the jury now and that’s the reason I’ve requested the cautionary instruction.

I think that you have removed that issue from the jury by your instructions, you see.

You have said to them, time is not an issue in this lawsuit. And time is an issue in this lawsuit as to the — not the appropriateness of the administration of Ampicillin at 6:00, but it’s an issue as to whether or not the delay in administering the appropriate antibiotic reasonably medically probably caused the child’s condition.

The Court: None of us have the problem with — when you say there was a delay of one day.

And when we have the instructions, we will make . . . clear the reason.

I have no problem with that because when the child was brought in on the first day, it’s your position and I believe you have claimed this clearly, that Ampicillin was given and Ampicillin should not have been given, the Chlor-Amphenicol should have been given.

Mr. Bleakley: That’s correct.

The Court: And the proper one was not given until the next day.

The Court: I have no problem with that. I take it there will be no objections then if he poses it in that way?

9 Counsel for the defendant pediatricians objected because she believed the court’s instructions allowed the jury to consider an unpleaded variation on the timeliness theme. All counsel agreed, however, that the instruction accurately portrayed plaintiff’s theory of the case with respect to timing.

10 As if to highlight the sharp contrast between causation evidence and standard of care evidence, plaintiff had just elicited causation testimony from Dr. Dajani four questions earlier. Plaintiff asked:

Q. With respect to [the] concept of treatment of bacterial meningitis, is it not a well recognized principal [sic] that the longer one goes without appropriate treatment the greater the likelihood of sequela?

A. I think that’s generally adhered to principal [sic] which I think is correct.

This testimony offers the causation evidence plaintiff and the dissent claim the court excluded.

11 As the court summarized plaintiff’s theory, " 'It is Plaintiff’s claim that it is well-recognized that the longer one goes without appropriate treatment when suffering from bacterial meningitis, the greater the likelihood of complications. It is contended that the delay in administering chloramphenicol until April 30th caused the right-sided hemi-paresis and seizures now present in Ericca. It is contended that these problems are permanent in nature and have rendered her permanently disabled.’ ”

12 In her concurrence, Justice Boyle suggests that we should only consider whether the trial court properly denied plaintiff’s attempt to amend the pleadings. The grant order, however, phrases the issue more broadly. It limits review "to the issue whether the trial court erred when it excluded” the delay theory. In our view, this order requires consideration of the pleading issue because had the delay theory been pleaded, no amendment would have been necessary.

13 See part d.

14 Clements v Constantine, 344 Mich 446; 73 NW2d 889 (1955).

15 At the time the complaint was drafted, GCR 1963, 111.1(1) governed the sufficiency of the allegations. It is, in all material respects, equivalent to MCR 2.111(B)(1).

16 Of course, those drafting pleadings can use any concise, organized presentation they choose as long as it meets the substantive requirements of MCR 2.111.

17 Plaintiff did not specify in the complaint that chloramphenicol was the antibiotic to be used. He did, however, detail specifically why ampicillin was the wrong drug to select. Because all parties knew that chloramphenicol was effective, failure to select effective medication became failure to select chloramphenicol over the course of discovery. Ultimately, focusing on whether the theory should be called "failure to select chloramphenicol” or something else beclouds the essential point. Plaintiff did provide notice of the failure to select correct medicine theory through the complaint, but did not provide notice of the delay theory. Without such notice, exclusion of the delay theory was proper.

18 This Court’s attitude toward procedural formality during that era is best illustrated by our statement in Clements, n 14 supra at 452 "all procedure is merely a methodical means whereby the court reaches out to restore rights and remedy wrongs; it must never become more important than the purpose it seeks to accomplish.”

19 In this case, defendants contended the amendment would cause them prejudice in a number of ways. First, defendants indicated they would have had to investigate St. John Hospital’s practice twelve years before the trial. Second, they would have had to depose several witnesses whose testimony was not relevant to the choice of medication theory. Finally, defendants suggested that they would have had to track down records ranging from medication charts to bills for services. Plaintiff made no showing that these claims of prejudice were unfounded.

20 In dissent, Justice Levin asserts that the defendants had notice of the delay theory through discovery. However, reviewing the discovery materials included in the record indicates that this claim is unfounded. Justice Levin quotes several portions of Dr. Thoman’s deposition testimony to indicate that defendants had notice of the delay theory. See dissent appendix a. Each of these examples, however, refers to which medicine should have been chosen. Neither indicates that plaintiff might be raising a delay theory.

Additionally, the dissent suggests that plaintiff put defendants on notice of the delay theory because they did not move for a more definite statement and were able to file an answer to a different theory. This suggestion overlooks the fact that the complaint did provide notice of the incorrect medication theory. Seen in this light, defendants’ preparation to defend the only theory pleaded is wholly reasonable and cannot be made the basis for inferring notice of an unpleaded theory. Furthermore, motions for a more definite statement and other procedural devices for clarifying pleadings would not have produced notice of the delay theory. Plaintiff’s counsel discovered the factual basis for the delay theory three days before trial began. Lacking a factual basis for the theory prevents a party from signing a pleading asserting it under MCR 2.114. Thus, if at any time prior to three days before trial defendants moved for a more definite statement, plaintiff would have responded with the incorrect medication theory. Defendants’ choice not to move for a more definite statement does not support an inference that they possessed notice of the delay in medication theory.

21 In dissent, Justice Levin provides another example which he contends establishes that the trial court excluded causation evidence. He quotes from plaintiff’s question to Dr. Kim asking "whether 'time is of the essence in treating a child suffering from bacterial meningitis?’ ” Post, p 360. The complete quotation, however, makes it clear that the question related to the standard of care for proper treatment and not to any causation theory.

Q. With respect to treatment, Dr. Kim, time is of the essence in treating a child suffering from bacterial meningitis? Is that not true?

Because this question regarding standard of care was asked immediately after the court had ruled such questions inadmissible, the court intervened before Dr. Kim answered.