Decker v. Rochowiak

287 Mich. App. 666
CourtMichigan Court of Appeals
DecidedMarch 30, 2010
DocketDocket Nos. 284155, 285870, and 290633
StatusPublished
Cited by43 cases

This text of 287 Mich. App. 666 (Decker v. Rochowiak) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Decker v. Rochowiak, 287 Mich. App. 666 (Mich. Ct. App. 2010).

Opinion

CAVANAGH, P.J.

In Docket Nos. 284155 and 285870, defendants Michael Stoiko, M.D., Spectrum Health Hospitals, Inc., doing business as Butterworth Hospital, and Spectrum Health Hospitals, Inc., doing business as DeVos Children’s Hospital (the Spectrum defendants), appeal by leave granted an order granting plaintiff, Eric Decker, a minor, by his next friend Robin Decker, leave to amend his medical malpractice complaint, and an order denying the Spectrum defendants’ motion for partial summary disposition with regard to those claims added by amendment. We affirm.

In Docket No. 290633, the Spectrum defendants appeal by leave granted an order denying their motion for summary disposition that challenged the sufficiency of plaintiffs notice of intent (NOI) and the expert support for plaintiffs nursing malpractice claims. Also in Docket No. 290633, defendants Michael Rochowiak, D.O., Alberto Betancourt, M.D., Carson City Hospital, doing business as Center for Women’s Health Care, and Carson City Hospital, Inc. (the Carson City defendants), challenge on cross-appeal an order denying their motion for joinder and concurrence in the Spectrum defendants’ motion for summary disposition with regard to the sufficiency of plaintiffs NOI. We affirm.

These consolidated interlocutory appeals arise out of defendants’ care and treatment of plaintiff, Eric Decker (Eric), who was born on July 17, 1996, at defendant Carson City Hospital. Flaintiff has averred that he was born by vacuum delivery necessitated by fetal distress. [670]*670He was not seen by a pediatrician. Although his bilirubin was elevated and he started becoming reluctant to feed, Eric was discharged the next day, on July 18,1996.

On July 19,1996, Eric was taken back to Carson City Hospital because he was lethargic and reluctant to feed. After being diagnosed with persistent hypoglycemia and jaundice caused by an elevated bilirubin level, he was airlifted to DeVos Children’s Hospital on Spectrum Health’s Butterworth Campus for medical management in the pediatric intensive care unit (PICU). Upon arrival, it was determined that Eric was profoundly hypoglycemic with a critically low glucose level of 4 mg/dl, where an acceptable range appears to be 60 to 100 mg/dl. A subclavian venous catheter was inserted to infuse glucose solutions. Although his blood glucose level increased somewhat for a short period, it remained dangerously low. Seizure activity was noted.

A brain CT scan performed on July 20,1996, revealed an extensive hypoxic ischemic brain injury and hemorrhages. Eric’s condition continued to deteriorate, culminating in a cardiac arrest. During the resuscitation efforts, it was determined that the subclavian venous catheter was not in the vein. Thus, the fluid that had been infused through it did not go into Eric’s bloodstream, but into his chest cavity. The large amount of fluid in Eric’s chest cavity interfered with the ability of Eric’s heart to beat — a condition known as cardiac tamponade — which led to his cardiopulmonary arrest. After a functioning femoral vein catheter was placed, Eric’s condition stabilized. He remained hospitalized through September 2, 1996. Eric has been diagnosed with cerebral palsy from an early anoxic (lack of oxygen) brain injury. He is developmentally delayed, suffers from sensory deficits, and is legally blind.

[671]*671On September 23, 2004, plaintiff served his NOI on defendants as required by MCL 600.2912b, and on June 5, 2006, he filed his medical malpractice case with supporting affidavits of merit. On January 9, 2008, plaintiff moved for leave to file an amended complaint that alleged 17 specific ways in which the Spectrum defendants breached the applicable standards of care. Plaintiff argued that the amendment was proper because (1) discovery remained open and experts had not been deposed, (2) the amendment merely clarified allegations and issues and was made possible after particular information was learned through the discovery process, (3) the clarifications “ultimately relate[] back to the underlying lynch pin of this entire case which is that they did not appropriately monitor and maintain this baby’s glucose level,” and (4) defendants would not be prejudiced by the amendment.

The Spectrum defendants opposed plaintiffs motion to amend, arguing that (1) plaintiff had not shown why “justice” required that leave be granted under MCR 2.118(A)(2) in light of the inexcusable delay in bringing such claims that were discernable from their inception; (2) plaintiff failed to raise these new theories in the NOI as required by MCL 600.2912b, thus such claims were barred by the statute of limitations; and (3) defendants would be unduly prejudiced if plaintiff were allowed to amend the complaint to add these new allegations. Oral arguments were heard on January 31, 2008. The trial court agreed with plaintiffs arguments, and granted plaintiffs motion for leave to file an amended complaint. Thereafter, plaintiff served on defendants a supplemental NOI containing the additional allegations. A written order granting plaintiffs motion was entered on February 19, 2008, and plaintiff filed the amended complaint on February 28, 2008. On March 11, 2008, under Docket No. 284155, the Spectrum [672]*672defendants filed with this Court their application for leave to appeal the trial court’s February 19, 2008, order.

On April 8, 2008, the Spectrum defendants moved for partial summary disposition, seeking dismissal of the 17 allegations raised in plaintiffs amended complaint. Defendants essentially reiterated the arguments they made in opposition to plaintiffs motion to amend, including that the specific allegations were not identified in the NOI and were barred from being added to this lawsuit by the expiration of the period of limitations. Defendants also contested the fact that plaintiff did not wait 182 days after serving the supplemental NOI before filing the amended complaint. The trial court heard oral arguments on April 24, 2008, and agreed with plaintiffs arguments. An order denying defendants’ motion was entered on May 19, 2008. On June 9, 2008, under Docket No. 285870, the Spectrum defendants filed with this Court their application for leave to appeal the trial court’s May 19, 2008, order.

On September 8, 2008, this Court granted the Spectrum defendants’ applications for leave to appeal in Docket Nos. 284155 and 285870, and the appeals were administratively consolidated. See Decker v Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 284155), amended September 18, 2008; Decker v Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 285870), amended September 18, 2008.

On November 26, 2008, while Docket Nos. 284155 and 285870 were pending on appeal, the Spectrum defendants again moved for summary disposition in the trial court. They moved for summary dismissal as to all of plaintiffs claims, arguing that plaintiffs initial NOI [673]*673failed to contain a statement of proximate cause detailing the manner in which defendants’ alleged negligence resulted in plaintiffs injuries as required by MCL 600.2912b(4)(e). The Spectrum defendants also moved for summary disposition as to plaintiffs nursing malpractice claims. They asserted that (1) plaintiffs only expert witness could not testify because she improperly relied upon a national, rather than local, standard of care with regard to these claims, and (2) plaintiffs expert was not qualified to testify in support of plaintiffs negligent charting claims.

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Cite This Page — Counsel Stack

Bluebook (online)
287 Mich. App. 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/decker-v-rochowiak-michctapp-2010.