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Negligence Law Section Quarterly Spring

VIEWS: 17 PAGES: 16

									    STATE BAR OF MICHIGAN

                             NEGLIGENCE LAW SECTION
                 Q           U A R T E R L Y
                                              The Official Newsletter of the State Bar of Michigan Negligence Law Section



FROM        THE        CHAIR                                                                               Spring 2004


SPRING SEMINAR    AT   SEA – A SPLASHING SUCCESS                                              told. (I would like to
    I told my friends, colleagues and family that I felt com-                                 award O’Neal Wright
pelled to attend the Negligence Section’s Spring Seminar                                      and his wife Cora with
at Sea. After all, it wouldn’t look good if the Chairperson                                   the award for the best
didn’t go. The seminar was held on a cruise ship, which                                       stories.) The atmo-
sailed for three nights to the tropical Bahamas. The weather                                  sphere for the trip was
was perfect, the food was great (and plentiful), the beaches                                  fantastic. There was a
were beautiful and the seminar was fantastic! Everybody                                       lot of laughter and a
had a great time. A special “thank you” is owed to Barry                                      lot of fun. Did I men-
Goodman, our current Treasurer, who essentially put this in-                                  tion the food?
credible event together. I would also like to thank Madelyne                                      All I can say is,
                                                                        Judith A. Susskind
Lawry, our Management Consultant, who was instrumental                                        if you didn’t go, you
in keeping us organized and “on task.”                                                        should have been there!
    The Section also owes thanks to our lobbyist, Todd                                        Where were you?
Tennis, and our special guests and speakers at the Spring
Seminar: State Representative James Howell and State            IS NEGLIGENCE LAW SINKING?
Senator Mark Schauer. Mr. Tennis served as the Modera-              Membership in the Negligence Law Section
tor and Host of the Seminar Program, which consisted of         has declined in recent years. I have been told that
“softball” and “hardball” questions directed to the legisla-    the number of negligence lawsuits in this state has
tors. Mr. Tennis drafted excellent questions that got to the    as well. Certainly, in areas such as products liabil-
meat of the issues that concern us, and led to a very candid    ity and medical malpractice, filings have declined
discussion of the legislative process.                          drastically. Have people been less negligent over
    The seminar was held at 7:30 a.m. on Saturday morn-         the past few years? Have injuries that result from
ing. The ship was docked at Co-Co Cay. Amazingly, no-           negligence been eliminated? Have they drastically
body was in a hurry to hit the beaches. The seminar was         decreased in this state? Are doctors nowadays so
incredibly interesting and very informative. From Sena-         careful that mistakes are not made? Are products
tor Schauer (a Democrat) and Representative Howell (a           in this state now made foolproof, and without any
Republican), we gained incredible insight regarding the         undue danger to the consumer? Should we just get
legislative process and how to best effectuate legislative      rid of our system of justice that holds a proven
advocacy. We learned how term limits have drastically           negligent person responsible for the harm he or
impacted things in the legislature. We learned how we can       she has caused because a lawsuit is perceived to
accomplish a great deal by reaching out to our local legis-     be a drain on the economy? Should we expand
lators. The setting for the seminar was informal, and our       immunity laws to all folks who attempt to do good
honored guests spoke candidly on a number of issues.            in our society? Please, let’s not forget where we
    Part of the reason that this trip was so successful was     came from! Let’s not forget the lessons that can
that we were “on board” together. We had dinners together       be learned, and the evils that can be avoided, from
each night and had a good deal of bonding time aboard the       holding one accountable for wrongdoing and the
ship. We had cocktails by the pool. We watched Senator          injuries that result.
Schauer and Bryan Waldman (President of Michigan Trial              I don’t think I stand alone as a believer in
Lawyers) climb the rock-climbing wall. Many stories were        our jury system. In fact, the Negligence Section’s
                                                                                                              ➩ ➩ ➩
Negligence Law Section Quarterly

                                                From the Chair
                                                Continued

    CHAIRPERSON                                 Mission Statement states in part,        causes of action. However, they
      Judith A. Susskind
      1000 Town Ctr Ste 500
                                                “The right to a fair and impartial       have been told, over and over,
      Southfield, MI 48075-1221                  trial by jury to resolve disputes,       that it is wrong to sue, and that it
      (248) 354-2222                            to remedy grievances, and for fair       is particularly bad for the strug-
    VICE-CHAIRPERSON                            compensation for injuries wrong-         gling economy. Well, what would
      Cynthia E. Merry,                         fully suffered, must be preserved.”      you do if your child were given a
        St. Clair Shores
                                                    I don’t think it should be           medication that the medical chart
    SECRETARY                                   deemed shameful to file a lawsuit         clearly stated should not be given
      Robert P. Siemion,                        for severe injuries that have been       because of a drug allergy, and
        Southfield
                                                occasioned as a direct and proxi-        your child dies in your arms as
    TREASURER                                   mate result of somebody’s negli-         a result? What would you do if
      Barry J. Goodman,
        Southfield
                                                gence. Jurors can, and regularly         a neurosurgeon made a mistake
                                                do, decide cases fairly based on         and operated on the wrong side
    COUNCIL                                     evidence. Over many years, rules         of your lumbar spine and caused
      Jody Aaron,
         Southfield                              have been carefully implemented          you to become a paraplegic? The
      Brenda E. Braceful,                       into our civil justice system, and       law does provide a remedy for
         Detroit
      Steven A. Hicks,
                                                enforced, in order to keep this          injuries occasioned by medical
         Lansing                                process fair. A trial by a jury of       negligence. People have been told
      Brian McKenna,                            our peers has been considered a          that they are wrong to seek that
         Detroit
      Jules B. Olsman,
                                                hallmark of our esteemed court           remedy. In the meantime, another
         Berkley                                system. It has served us well. This      small business, the business of
      Barbara A. Patek,                         aspect of negligence law gets no         lawyering, has suffered. This is
         Mt. Clemens
      Paul Pedersen,                            publicity. On the other hand, there      not good for the economy.
         Commerce Township                      seems to be a persistent, prolonged          In Michigan, a medical mal-
      Thomas M. Peters,                         and determined media campaign            practice lawsuit cannot be filed
         Troy
      Susan Philpott-Preketes,                  whose purpose is to convince the         against a doctor without an Af-
         Flint                                  public that it is absolutely wrong to    fidavit of Merit attesting to the
    EX-OFFICIO                                  sue anybody for negligence.              ways in which malpractice was
      Timothy H. Knecht,                            Newsweek ran a cover story a         committed, and how the malprac-
        Flint                                   few months ago about “frivolous”         tice proximately caused injury and
    COMMISSIONER LIAISON                        medical malpractice lawsuits. A          damages. Doctors do not like to
      Michael S. Hohauser,
        Troy                                    familiar story. I was disappointed       criticize their colleagues. I have
                                                that the article failed to mention the   had private meetings with doctors
    EDITOR &
     MANAGEMENT CONSULTANT
                                                good things that come from hold-         in Michigan who tell me “off the
      Madelyne Lawry,                           ing doctors responsible for medi-        record” that another physician
        Grand Ledge                             cal negligence. I was disappointed       committed medical negligence.
    EDITOR CONTACT INFORMATION                  that the article didn’t expose any of    However, they also tell me that
    12690 Grand Willow Dr.                      the thousands of egregious cases of      they will not put that in writing, or
    Grand Ledge, MI 48837
    Phone: 517-712-4389
                                                medical negligence.                      testify to that.
    Fax: 517-627-3950                               I have been specializing in the          When an individual suffers se-
                                                field of medical malpractice for          vere injuries because of a fall due
    The views expressed in this Newsletter      over fifteen years. Almost every          to a defect in a walkway of a busi-
    do not necessarily reflect the views of      client that walks into my office to       ness, the case may be kicked out of
    the Council or the Section. This publica-
    tion does not represent an endorsement      discuss a potential medical mal-         court because there was no notice
    of any comments, views, or opinions ex-     practice case is ashamed. Most           of the defect. If the defect was
    pressed herein. Any opinions published
    herein are opinions of the authors, and
                                                begin the meeting by stating, “I         noticeable, the case is kicked out
    will hopefully provide an impetus for       don’t believe in suing doctors and I     because the defect was “open and
    further discussion of important issues.     was very reluctant to come here.”        obvious”. Where is the incentive to
                                                Many of these people have valid                             Continued on page 9

2
                                                                                                   Spring 2004


WHERE’S DR. WALDO? EXPERT WITNESS
FINDING THE RIGHT MEDICAL MALPRACTICE
STANLEY S. SCHWARTZ


    Ten years ago, the legislature     for the most                                           rower craft, such
tightened requirements for insti-      experienced                                            as thoracic surgery
tuting and pursuing medical mal-       and diligent                                           or urology. Today
practice actions. The idea was to      malpractice                                            only      apprentice
shrink the pool of qualified expert     attorney. Or,                                          physicians – in-
witnesses and, most particularly,      if out of an                                           terns and residents
restrict the use of professional fo-   abundance of                                           – may be relegated
rensic experts – so-called “hired      prudence and                                           by Michigan law
guns.” To these ends, the expert       cost efficien-                                          to the category
witness statute, M.C.L. 600.2169,      cy, one tries                                          of general prac-
was significantly modified. Pre-         to combine                                             titioner. See, e.g.
viously, it was sufficient if the       in a single                                            Bahr vs. Harper
expert devoted “a substantial por-     witness the                                            Grace Hospitals,
tion” of his/her professional time     differing cri-                                         198 Mich. App.
to clinical practice or teaching in    teria viewed                                           81 (1993). Even
the defendant’s specialty “or a re-    as necessary                                           the classification
lated, relevant field of medicine.”     by different appellate panels, the      of residents as GPs is dubious
Since 1993, the expert witness         result is often a Kirtland Warbler      inasmuch as residents are trained
has been required to spend the         sort of expert, a creature nearly       and acquire experience in spe-
majority of his/her time practic-      impossible to find.                      cific medical specialties. See, e.g.
ing or teaching the same specialty         Start with the concept of a spe-    Valentine vs. Kaiser Foundation
as defendant. Moreover, if the         cialist. The common law created         Hospitals, 194 Cal. App. 2d 282,
defendant is “a specialist who is      and the 1993 amendments perpet-         15 Cal. Rptr. 26 (1961). (The Cali-
board certified,” the expert, like-     uated a questionable distinction in     fornia court held residents to the
wise, must be “board certified in       malpractice law between general         standard of care of the specialty
that specialty.”                       practitioners, who are held to a        he/she was being trained in at the
    Agree or disagree with these       localized standard of care, and         time of the alleged malpractice in
changes, the revised provision         specialists, who are judged by the      question. I must say, a much more
would strike a casual reader as        national norms of their discipline.     sensible approach to the problem.)
being quite straightforward. As        Lacking a statutory definition of           More fundamentally, the ex-
a wag once remarked, “If God           either term, courts have resorted       tent to which new knowledge
wanted statutes to make sense, He      to the dictionary to describe           and techniques are shared across
would not have invented judges.”       general practitioners as doctors        the country and, indeed, globally,
In recent years, there has accreted    “whose practice is not limited to       makes the concept of distinctive
around the expert witness statute      any specific branch of medicine”         local standards of care a glaring
a body of Court of Appeals deci-       and specialists as those “who deal      anachronism for all other health
sions, most of them unpublished        only with a particular class of         professions, not merely medicine,
Per Curiams, which have been           diseases, conditions or patients.”      as was pointed out by separate
barren of essential facts, badly       Given the universality of post-         opinions in at least two Court of
reasoned, at odds with other panel     graduate residencies in medicine,       Appeals cases. Decker vs. Flood,
decisions, or all of the above.        every physician is trained in and       248 Mich. App. 75, 87-88 (2001)
This muddle makes selection of         goes on to practice some specialty,     (Neff concurring) (Dentistry);
an unchallengeable expert wit-         be it a wide-ranging primary care       Jalaba vs. Borovoy, 206 Mich.
ness much like a lottery, even         field, like family practice, or a nar-
                                                                                                        ➩ ➩ ➩
                                                                                                                3
Negligence Law Section Quarterly

App. 17, 25 (1994) (Stempien                                                         cialty’ as the defendant doc-
concurring) (Podiatry).                    "This muddle makes selection of           tor, not [simply] specialize
                                            an unchallengeable expert wit-
    Granting the fact that modern                                                    in the area of medicine being
                                          ness much like a lottery, even for
physicians are all specialists of                                                    practiced by the defendant
                                         the most experienced and diligent
one kind or another, how does                                                        doctor at the time the cause
                                                malpractice attorney."
one determine what specific field                                                      of action arose.”
of medicine the defendant spe-                                                           We are not told why the
cializes in for the purpose of the       care for root canal surgery but             defendant internist happened
expert witness statute? Suppose          they felt helpless to escape the      to be practicing emergency medi-
defendant regularly practices der-       GP/Specialist differentiation         cine or how much of his time was
matology, and is board certified in       embodied in the statute.              spent in the emergency room. If
that specialty, but the malpractice          Dealing as it did with a          he worked there exclusively, was
arises out of his bungled attempt        general practitioner, Decker          he not in every sense a specialist
to set a fractured leg. Common           does not directly address the         in emergency medicine (whether
sense tells us that dermatology is       case of a specialist in one field      or not possessed of board certi-
extraneous to the case that there is     who crosses over to practice,         fication in that field)? If so, Tate
no dermatological standard of care       pro hac vice, in a different spe-     makes it clear that defendant’s
for treating broken bones, and that      cialty and, therefore, it does        other unrelated specialty, un-
plaintiff is not obliged to enlist, as   not necessarily rule out the use      practiced internal medicine, has
an expert witness, a board-certi-        of an orthopedic surgeon as           no significance in determining
fied dermatologist who sometimes          the expert in our dermatologist       the qualifications of the expert
tends to fractures. Common sense         hypothetical. But consider a          witness. To the same effect is
tells us, rather, that defendant         recent unpublished panel deci-        Nelson vs. Gray (Court of Appeals
doctor was “specializing” – al-          sion, Kyser vs. Hillsdale Comm.       Number 236369, August 26, 2003,
beit as a moonlighter or interloper      Health Center (Court of Appeals       Opinion), in which the defendant,
– in the domain of orthopedics           Number 237060, July 22, 2002)         who was board certified in fam-
when he treated plaintiff and that       that invoked Decker and failed        ily medicine, was practicing full
is the germaine specialty from           to cite, much less distinguish,       time in a hospital emergency room
which expert witnesses are to            Tate. Readers of Michigan Law-        when he allegedly committed
be drawn. Sensibly, a panel of           yers Weekly have recently been        malpractice on plaintiff. The panel
the Court of Appeals has written         reminded that unpublished Per         concluded that defendant had two
“The specialty requirement is tied       Curiams, while not officially          specialties, family medicine and
to the occurrence of the alleged         binding precedents, are easily        emergency medicine, and had no
malpractice and not unrelated            accessible to lawyers and more        trouble recognizing that the mal-
specialties that a defendant physi-      and more often are showing up         practice suit implicated only the
cian may hold.” Tate vs. Detroit         in their briefs. Kyser, thus, is a    latter. Consequently, in Nelson the
Receiving Hospital, 249 Mich.            decision with considerable po-        court held that plaintiff made the
App. 212, 218 (2002). Lend-              tential for mischief.                 wrong choice by offering board-
ing some support to a contrary               In Kyser, the defendant doc-      certified family practice physicians
conclusion is Decker vs. Flood,          tor was board certified in inter-      as his expert witnesses; what was
248 Mich. App. 75 (2001), in             nal medicine but “was working         required was a specialist in emer-
which an endodontist was held            in [a hospital] emergency room        gency medicine.
not to be a proper expert witness        at the time he treated plaintiff.”        Now let us suppose that in
against a plain vanilla “general         Plaintiff submitted an Affidavit       Kyser, the defendant worked only
dentist” accused of botching a           of Merit from a board-certi-          part time in the emergency room
root canal. The judges were not          fied specialist in emergency           and otherwise devoted himself to
entirely unaware of the absurdity        medicine, which the panel found       the practice of internal medicine.
of declaring that an experienced         insufficient on the analogy of         Why should the analysis be any
root canal dentist is overquali-         Decker, cited by the panel for        different? The statute does not say
fied and cannot pronounce an              the proposition that “an expert       that the defendant must spend the
opinion about the standard of            must specialize ‘in the same spe-     majority of his/her professional
4
                                                                                                       Spring 2004

time in emergency medicine in          ute’s reference to matching board        relevancy to the facts.
order to be sued as a special-         certifications in conjunction with            However, even if one accepts
ist. The 51 percent standard is        the requirement of matching              this analysis, the statutory ex-
clearly targeted at the expert         specialties. In one sentence, the        pression, “board certified,” lack-
witness in order to keep profes-       statute asserts that when the de-                    ing any definition,
sional forensic witnesses (“hired      fendant is a                                          introduces       another
guns”) out of malpractice cases        specialist, the       "The complication for           set of difficulties. At
– a concern that plainly is irrel-     expert must          the malpractice lawyer           first blush, it would
evant when it comes to pinpoint-       “specialize           and the interpreter of          seem that the statute
ing the specialty being practiced      at the time          the 1993 statute is that         is speaking of the
by the doctor who is sued. What        of the occur-        all but six of the prima-        system of specialty
we want is a credible statement        rence that is         ry boards in medicine           boards in the medical
from a qualified expert defining         the basis for          grant 'certificates of          profession. There are
the professional standard of care      the action in         added qualification' in          24 board certifica-
required to be followed by any-        the same spe-        a variety of subspecial-         tions recognized by
one who undertakes to practice,        cialty” as the       ties, based on addition-         the American Board
whether regularly, occasionally        defendant,           al training and testing."        of Medical Special-
or simply on a one time basis,         the      focus                                        ties (ABMS) and the
in the expert’s specialized field       here     being                                        American        Medical
of medicine. Moreover, if one          on what the                                           Association. Each of
needs to identify not only the         defendant does, or was doing, at         these primary boards grants board
field of medicine in which              the time of the occurrence. This         certification based on completion
the malpractice occurred, but          is followed by another sentence:         of an accredited residency pro-
the unrelated field or fields of         “However, if the party against           gram in a specialized field and
medicine in which the defendant        whom or on whose behalf the              on written and oral examinations
spends the majority of his/her         testimony is offered is a specialist     administered by the board.
professional time, how is a plain-     who is board certified, the expert            The complication for the mal-
tiff to go about obtaining such        witness must be a specialist who         practice lawyer and the interpreter
information? Plaintiff, let’s re-      is board certified in that spe-           of the 1993 statute is that all but six
member, is compelled to submit         cialty.” Here the reference is to        of the primary boards in medicine
the Affidavit of Merit, signed by       the doctor’s credentials, not his        grant “certificates of added qualifi-
a qualified expert, at the time of      behavior, on who he is, not what         cation” in a variety of subspecial-
filing suit and well before there       he does. A sensible reader would         ties, based on additional training
is access to discovery. How then       say that the two sentences must          and testing. A doctor whom we
is it possible for the Kyser plain-    be read together and that “special-      conventionally label a cardiologist
tiff to know that the emergency        ist” in both sentences signifies the      or a hematologist or an endocri-
room physician, who caused him         field of medicine in which the al-        nologist is first and foremost board
harm, spent most of his time in        leged malpractice was committed.         certified in the specialty of internal
an office treating patients as an       The statute speaks of defendant’s        medicine and typically holds a
internist?                             specialty in the singular; if he or      certificate of added qualification in
    Kyser provides the wrong an-       she happens to hold one or more          the subspecialty of cardiovascular
swer to our hypothetical: only a       board certifications for other spe-       disease or hematology or endocri-
board-certified dermatologist, not      cialties having nothing to do with       nology or nephrology.
an orthopedic surgeon, can offer       the treatment meted out to this              There is no apparent logic to
an expert opinion on the proper        plaintiff-patient, there is no reason    the ABMS classifications of spe-
treatment of broken legs. That is to   why the expert witness should            cialties and subspecialties. Why
say, only a dilettante can be relied   have to possess those irrelevant         is urology a freestanding spe-
on to state the governing standard     board certifications. However,            cialty with its own primary board
of care!                               the statute appears to demand            while cardiology is relegated to
    What seems to send some            compliance with this board cer-
judges off the tracks is the stat-     tification match regardless of its                                    ➩ ➩ ➩
                                                                                                                     5
Negligence Law Section Quarterly

a subspecialty of internal medi-      or diplo-                                                  in the panel
cine? If cardiology could not be      mats also         "A further complication is that          allowed an
considered a discreet specialty       claim to be         there are other credential-            internist,
                                                         ing organizations in medicine
for malpractice purposes because      “board cer-                                                with the sub-
                                                        outside the ABMS, though they
of the eccentric way in which         tified” in-                                                 specialty of
                                                        may not be as well established
the medical profession organizes      asmuch as                                                  gastroenterol-
                                                            or as widely respected."
its credentialing system, then it     the statute                                                ogy, to testify
would follow that an internist        does not                                                   as an expert
who devotes all his practice to,      specify which boards or which       against an internist with the sub-
say, infectious disease can serve     certifications it has in mind?       specialty of geriatrics. Although
as an expert when a cardiologist          Confused? Check out Judge       the subject of the claimed mal-
is sued for malpractice (and vice     Talbot’s opinion in Woodard         practice was defendant’s failure
versa). Moreover, osteopathic         vs. Custer (Court of Appeals        to diagnose liver abscesses, the
physicians would be treated dif-      Number 239868, October 21,          court discounted the expert’s
ferently than M.D.s in court be-      2003, Unpublished Opinion),         qualifications as a gastroenterolo-
cause their system of certifying      in which he erroneously asserts     gist (he devoted only “a portion”
boards does not fully mirror their    that pediatric critical care is     of his time to the subspecialty) as
M.D. counterparts. The ABMS           an independent board-certi-         if that expertise in a subspecialty
recognizes 24 medical specialty       fied specialty, when, in point       directly relevant to the case was a
boards handing out 36 general         of fact, it is a subspecialty       minus, rather than being the very
board certificates. In addition,       of pediatrics. Perhaps Judge        reason why the court should al-
there are 89 subspecialty certifi-     Talbot considered a certificate      low his opinion. It is interesting
cates. (See http://www.abms.org/      of added qualification (sub-         to note that in Tate vs. Detroit
approved.asp) Osteopathic medi-       specialty) equivalent to board      Receiving Hospital, 249 Mich.
cine recognizes but 18 certifying     certification. If so, how do we      App. 212, 217 (2002), the court
boards; however, there are 30 cer-    reconcile the decision in Watts     asserted that the primary goal of
tifications of special qualifications   vs. Canady, 253 Mich. App.          statutory interpretation is to deter-
and 47 certifications of added         468 (2002) with the Woodard         mine and give effect to the intent
qualifications (this makes a total     opinion? In Watts, the court        of the legislature. Unfortunately,
of 76 subspecialties). (See http:     distinguished “specialty” from      the problem is that almost each
//www.aoa-net.org/Certification/       “subspecialty” by stating “…        and every Court of Appeals de-
jurisdiction.htm) Despite these       but we presume that the legis-      cision seems to present a unique
formal variances, it is generally     lature chose to use ‘specialty,’ and different interpretation of leg-
thought to be acceptable for an       not ‘subspecialty.’ We see no       islature intent.
osteopath to testify in an M.D.       grounds for imposing a sub-             It is certainly not unreasonable
malpractice case and vice versa.      specialty requirement when the      to view the first sentence of the
Piontek vs. Armstrong (Court of       legislature has spoken in terms     statute as being somewhat flexible
Appeals Number 235792, De-            of a specialty requirement. We      since there is no fixed or unalter-
cember 27, 2002, Unpublished          note that while the line between    able definition of the term spe-
Opinion). C. McDougall vs.            a specialty and a subspecialty      cialty. This would then permit a
Schanz, 461 Mich. 15 (1999) (Ex-      may appear to be fuzzy, the         matching of a defendant, certified
pert was objectionable because he     terms can be defined precisely       in a particular subspecialty, with
was no longer active in practice,     according to the standards set      an expert specializing in the same
not because he was an M.D. and        forth by the AMA.” Is there         field of medicine but without a
defendant was a D.O.).                any wonder why confusion ex-        subspecialty certification. Per
    A further complication is that    ists in this muddled area of ex-    contra, under the very same set
there are other credentialing orga-   perts? Or, consider Massenberg      of facts could not the defendant
nizations in medicine outside the     vs. Henry Ford Health System        claim to be “board certified in a
ABMS, though they may not be          (Court of Appeals Number            specialty” within the meaning of
as well established or as widely      236985, September 25, 2003,         the second sentence of the statute
respected. Can their members          Unpublished Opinion), where-                            Continued on page 14

6
                                                                                                       Spring 2004

Member Profiles
Brian A. McKenna                         and families that have had              tice of negligence law — the larger
   Brian was born in Belfast,            their way of life suddenly and          our Section, the louder the voice.
Ireland and moved with his               sometimes irreversibly changed              Outside of the practice of law,
family in May 1969                                  is very challenging.         Brian enjoys playing hockey and
to the Detroit area. He                                 Brian’s most sig-        spending time with his wife, Kel-
grew up in St. Clair                                nificant professional         ly and children, Sean, 11; Shan-
Shores,       Michigan.                             accomplishments in-          non, 4; Conor, 3; and Brian, 2.
His motivation for                                  clude being asked to         The family attends many sporting
becoming a lawyer                                   become an associate          events that the children participate
came in large part                                  at Sachs Waldman,            in, including baseball, hockey, soc-
from his brother James                              Professional Corpo-          cer, and swimming.
who exposed Brian                                   ration in 1993, and
to what it was like to                              eventually becoming a        Brian A. Mckenna
                                                    shareholder. His most        Sachs Waldman PC
help injury victims as          Brian McKenna                                    1000 Farmer Street
a plaintiff’s personal                              significant      personal
                                                                                 Detroit, MI 48226
injury attorney. James                              accomplishment is be-        Phone - 313-496-9416
also got him his first law clerk job      ing a husband and father.               Fax - 313-965-4315
at his office. Seeing his brother’s           Brian has been a member of          brianmckenna@sachswaldman.com
enthusiasm for helping personal          the Negligence Section of the
injury victims was probably              State Bar of Michigan since he           Thomas M. Peters
the most significant motivating           first joined the Bar. Negligence             Thomas originally hails from
factor for Brian.                        law is a significant part of his          Saginaw, Michigan. His motiva-
   Brian graduated from Fer-             practice, and receiving the news-        tion for becoming a lawyer was
ris State in 1989 and from               letters has been beneficial to his        to have a job that was not closely
Wayne State in 1993 with his             practice. Recently, he has worked        connected to the automobile in-
law degree. He started as a              with the Section in helping to ef-       dustry. Tom has an undergraduate
law clerk at Sachs Waldman,              fectuate change regarding notice                    degree from Michigan
Professional           Corporation       of intent requirements                              State University with
in January 1993. Before                  impacting both sides                                majors in language, fi-
graduating from law school in            in medical malprac-                                 nance, and advertising.
the spring of 1993, he clerked           tice claim and in                                   His law degree is from
for Barry Waldman, George                effectuating change                                 Wayne State Univer-
Fishback, and Gregory Janks.             regarding service of                                sity Law School. He
He was hired as an associate at          summons and com-                                    has been employed as
Sachs Waldman following his              plaints of claims ap-                               an attorney with the
graduation from Wayne State,             proaching the end of                                Troy, Michigan firm
                                                                      Thomas   M. Peters
and eventually became a partner.         their statute of limi-                              of Vandeveer Garzia,
Brian’s practice is devoted to           tations. The greatest                               P.C. since November
representing injury victims              benefit of being involved with            1973, having clerked with them
primarily in the area of first- and       the section is being able to have a      since July 1971. Tom special-
third-party automobile accident          voice and effectuating change in         izes in products liability, trucking,
claims. Working with accident            improving the environment for            and serious exposure cases. He
victims can be both challenging          the practice of negligence law.          counts participating on a major
and rewarding. Typical clients           Brian encourages other lawyers           level in probably the most suc-
are less sophisticated than the          to become involved with the              cessful products liability defense
insurance clients that are the           section because this section does        program in the country – defend-
opposing parties in many of              advance the issues important to          ing the very first child resistance
these cases. Helping individuals         practitioners involved in the prac-
                                                                                                    Continued on page 11

                                                                                                                      7
Negligence Law Section Quarterly



     Celebrating the 48th
                                         Legislative Update
    Year of the Negligence               Wortz and Tennis
            Council
                                             While there are a handful of         Act so that once again, the statute
       We salute our past                bills that the Negligence Law Sec-       of limitations is tolled when the
         chairpersons                    tion of the State Bar are supporting,    case is filed, provided a copy of the
                                         opposing, or monitoring, there are       summons and complaint is served
    2003-2002   Timothy Knecht           two pieces of legislation that are of    on the defendant within the time
    2001-2002   David Getto              particular importance this month         set forth in Supreme Court rules.
    2000-2001   Victor L. Bowman         – Senate Bill 990 and House Bill         SB 990 passed both the House and
    1999-2000   Timothy J. Donovan       5338. The two bills have a common        Senate unanimously, and as of this
    1998-1999   Linda M. Galbraith
                                         thread in that they both amend laws      writing is on the Governor’s desk
    1997-1998   Carol A. McNeilage
    1996-1997   Lamont E. Buffington      dealing with legal procedures that       awaiting her signature.
    1995-1996   Janet M. Brandon         equally affect plaintiff and defense         House Bill 5338 was introduced
    1994-1995   Joseph G. Lujan          attorneys. When the Negligence           by Representative Jim Howell (R-
    1993-1994   Paul A. Rosen            Law Section decided to become            St. Charles) and deals with affida-
    1992-1993   Walter P. Griffin         more involved in Legislative mat-        vits of merit in medical malpractice
    1991-1992   Kathleen L. Bogas
    1990-1991   J. Michael Fordney
                                         ters several years ago, one of the       cases. Representative Howell spon-
    1989-1990   George T. Sinas          early challenges was identifying         sored the bill at the request of the
    1988-1989   Robert G. Russell        issues that were equally important       Negligence Law Section in order
    1987-1988   Thomas D. Geil           to both plaintiff and defense mem-       to solve problems affecting both
    1986-1987   Robert N. Hammond        bers. The two bills in question          plaintiffs and defendants.
    1985-1986   Charles J. Barr          represent efforts to clarify legal           When the affidavit of merit was
    1984-1985   Richard J. McClear
    1983-1984   James A. Tuck            practices. They will hopefully           conceived, it was thought of as a
    1982-1983   Ronald E. Westen         help protect attorneys and their         tool to ensure that medical mal-
    1981-1982   Clifford H. Hart         clients whether they are plaintiffs      practice cases had a basis in fact
    1980-1981   David M. Tyler           or defendants.                           before they were brought forward.
    1979-1980   Sherwin Schreier             Senate Bill 990 was introduced       A plaintiff’s attorney is required to
    1978-1979   Robert G. Chaklos, Sr.
                                         by Senator Michael Bishop (R-            produce an affidavit from a physi-
    1977-1978   Arnold M. Gordon
    1976-1977   William D. Booth         Rochester), and stems from a recent      cian showing that a particular case
    1975-1976   George J. Bedrosian      Supreme Court ruling (Gladych v.         has merit. Similarly, a defense at-
    1974-1975   John A. Kruse            New Family Homes) that changed           torney must produce an affidavit of
    1973-1974   James W. Baker           longstanding procedures governing        meritorious defense to demonstrate
    1972-1973   Kenneth S. Halsey        filings and notice requirements. The      that his or her client has sufficient
    1971-1972   Richard B. Baxter
                                         Gladych decision adhered to statu-       reason to contest the case.
    1970-1971   David V. Martin
    1969-1970   Eugene D. Mossner        tory language requiring a defendant          Over the past several years,
    1968-1969   Richard A. Harvey        to be served with a summons and          however, these affidavits have
    1967-1968   Saul M. Leach            complaint before the statute of limi-    become far more integral to the
    1966-1967   Thompson Bennett         tations is tolled. A previous decision   outcome of a case than intended.
    1965-1966   Charles R. MacLean       in a 1971 case (Buscaino v. Rhodes)      The problem stems from the fact
    1964-1965   Robert E. Rutt
    1963-1964   The Hon. Cornelia
                                         had allowed the statute to be tolled     that, due to the way the statute
                  G. Kennedy             when the complaint was filed with         was written, there is no opportu-
    1962-1963   Ivin E. Kerr             the court, regardless of whether the     nity to correct a technical error
    1961-1962   William J. Weinstein     defendant had been served.               within an affidavit of merit. Both
    1960-1961   Marcus L. Plant              The Gladych decision, although       plaintiff and defense attorneys
    1959-1960   A.D. Ruegsegger          viewed as a strict interpretation of     have seen their cases dismissed
    1958-1959   Thomas W. Finucan
    1957-1958   Kenneth J. Stommel       statute, nonetheless threatened to       or defaulted due to errors ranging
    1956-1957   Carl Gussin              upset a system that has worked well      from having the wrong date stamp
    1955-1956   Leroy G. Vandeveer       for over thirty years. Senate Bill       to mistakes made by a notary
                                         990 amends the Revised Judicature
                                                                                                    Continued on page 16

8
                                                                                                    Spring 2004


SECOND ANNUAL EARL J.CLINE MEMORIAL NEGLIGENCE AWARD

    This year we are pleased to        his discharge                                  to be the most successful
present the second Annual Earl         he was an at-                                  organization in the United
J. Cline Memorial Negligence           torney for the                                 States and is credited with
Award to Samuel A. Garzia in           Wayne County                                   reducing Wayne County
recognition of his superb skills       Friend of the                                  Circuit’s trial docket from
as a judge and practicing attorney     Court and was                                  five years to less than two
in the field of negligence law and      respo nsible for                               years. The Detroit Bar
dispute resolution. The purpose        establishing an                                Association awarded him
of the organization is to promote      automatic sys-                                 their Distinguished Ser-
the fair and just administration of    tem for delin-                                 vice Award both in 1981
negligence law, to advance profes-     quent paying                                   and 1985. Mr. Garzia
sional and ethical standards on the    fathers.                                       spends his winters at Bay
part of negligence law, to preserve        He joined                                  Hill in Florida and golfs
andpromote trial advocacy skills in    the firm of                                     three to four times a week
the practice of negligence law and     Vandeveer and Haggerty in 1945.        in Michigan at his own Highland
to recognize by way of awards and      Samuel A. Garzia’s practice even-      Hills Golf Course.
scholarships excellence in tort law    tually turned to product and con-         The award will be presented
and outstanding contribution to the    struction liability. He is a member    May 21, 2004 at the Detroit
practice of the profession.            of the State Bar of Michigan,          Country Club during the Annual
    Samuel A. Garzia graduated         Detroit Bar Association, Oakland       Past Chairs’ Event.
from Wayne State University Law        Bar Association, Fellow of Amer-
School in 1943 (J.D. with high         ican College of Trial Attorney,
distinction), and was admitted to      and American Bar Foundation. In
                                                                              Samuel A. Garzia
the State Bar of Michigan three        1966, he co-founded and was the
                                                                              Vandeveer Garzia
days later by Judge Toms (having       first president of the Association      5229 Greenbriar Ct.
taken bar exams before gradua-         of Defense Trial Counsel. In 1979,     West Bloomfield, 48323
tion) and was inducted into the        he co-founded the Mediation Tribu-     Phone – 248-682-7017
U. S. Army one week later. Upon        nal Association, which continues       Fax – 248-682-7017

From the Chair
continued from page 2



maintain a safe premise under the      right to a fair and impartial trial    fair trial by one’s peers, were taken
current laws? What happened to the     by jury to resolve disputes, to        away, a great document called
concept of personal accountability?    remedy grievances, and to seek         the United States Constitution
    Shame on the lawyers, espe-        fair compensation for injuries         was drafted and adopted. Let’s
cially the negligence lawyers. We      wrongfully suffered.                   keep it afloat.
are the worst of the lot. Shame on         I would love to see the Negli-
us for seeking a remedy for our cli-   gence Law Section grow in num-         The views expressed in this column,
ents. Shame on us for asking jurors    bers next year instead of decline.     or in this Quarterly, do not necessar-
                                                                              ily reflect the views of the Council or
to hold a proven negligent party       I believe that the tougher laws in
                                                                              the Section. This publication does not
responsible for the damages that       this state for victims of negligence   represent an endorsement of any com-
person causes.                         have made us better lawyers, and       ments, views or opinions expressed
    I do not feel ashamed. Getting     more determined in many ways.          herein. Any opinions published herein
back to the Mission Statement          Again, let’s remember where we         are opinions of the authors, and will
of the Negligence Law Section,         came from. Many years ago, when        hopefully provide an impetus for fur-
I am proud to fight to uphold the       our rights, such as the right to a     ther discussion of important issues.

                                                                                                                  9
Negligence Law Section Quarterly

Case Summaries
Clahassey v Chez Ami, Inc.,            walking west on the sidewalk on         practice related to the surgical
   674 NW2d 258 (2004)                 the north side of Catherine Street.     procedure and raised malpractice
                                       While the pedestrian signal was         claims based on the anesthesia
   In an order in lieu of granting
                                       turned to “walk,” the decedent          administered during the surgery.
leave to appeal, the court reversed
                                       attempted to cross Glen Street. At      Plaintiff filed two affidavits of
the judgment of the Court of Ap-
                                       the same moment, the traffic light       merit with the complaint—one re-
peals and remanded to the trial
                                       for westbound vehicles on Cath-         lated to the standard of care for the
court for entry of an order granting
                                       erine Street turned green. The          surgical procedure and the other
defendant-Chez Ami, Inc.’s mo-
                                       decedent was struck and killed          related to the standard of care re-
tion for summary disposition. The
                                       by a bus turning right on to Glen       garding the administration of the
Court of Appeals erred in focusing
                                       Street. The trial court granted the     anesthesia. The court held a medi-
on the risk presented by the mock
                                       city summary disposition based          cal malpractice complaint must be
sumo wrestling suit. Chez Ami
                                       on governmental immunity. The           limited to the issues raised in the
provided only the location for the
                                       court held based on Nawrocki,           notice of intent. Plaintiff failed to
mock sumo wrestling competi-
                                       MCL 257.610(a) does not con-            comply with the statutory notice
tion and the suit was provided by
                                       template the imposition of a duty       requirement involving the admin-
the other defendants, with whom
                                       the breach of which subjects the        istration of anesthesia. Plaintiff’s
plaintiff has settled. Therefore,
                                       municipal agencies responsible          notice of intent was silent regard-
the proper inquiry was whether
                                       for traffic control to tort liability.   ing any breach of the standard of
the risk presented by the location
                                       Further, the city could not be held     care during the administration of
of the competition, including the
                                       liable under the highway excep-         anesthesia and did not minimally
bar stool, was open and obvious.
                                       tion to governmental immunity           allege the agents of the hospital
The risk presented by the location
                                       for the alleged failure to install      administering the anesthesia were
of the mock wrestling competi-
                                       or maintain traffic control de-          at fault. Reversed and remanded.
tion and the bar stool was open
                                       vices because relevant case law
and obvious because an average
                                       provides traffic control devices         J & J Farmer Leasing, Inc v
person of ordinary intelligence
                                       are not part of the roadbed actu-       Citizens Ins Co, Court of Ap-
would have been able to discover
                                       ally designed for public vehicular            peals No. 239069
the risk of harm presented. Nor
                                       travel. Affirmed.                             (February 12, 2004)
was there any “special aspect” of
the location of the competition or                                                 The trial court properly denied
                                        Gulley-Reaves v Baciewicz,
the bar stool that would give rise                                             the defendant-insurer’s motion
                                        Court of Appeals No. 242699
to a uniquely high likelihood of                                               for summary disposition because
                                            (February 10, 2004)
harm or severity of harm.                                                      application of the Keeley deci-
                                          Since plaintiff failed to pro-       sion did not prevent an award of
  In re Estate of Marchyok,            vide notice of the breach of the        damages based on its bad-faith
 Court of Appeals No. 242409           standard of care regarding the          failure to settle a wrongful death
      (February 24, 2004)              administration of anesthesia as re-     case. Defendant maintained the
                                       quired by MCL 600.2912b(4)(c),          claim against it must be dismissed
   Since traffic control devices
                                       the trial court erred in denying        because an agreement between
are not part of the highway un-
                                       defendants’ motion for summary          plaintiffs, who were the opposing
der § 1401(e), the court held the
                                       disposition. Plaintiff filed a notice    parties in the underlying wrongful
highway exception to govern-
                                       of intent to sue the defendants-        death case, essentially released the
mental immunity did not apply,
                                       doctor and hospital alleging the        underlying defendants, the Farmer
and the trial court did not err in
                                       surgeons involved in plaintiff’s        parties (the insured), from any ob-
granting the city’s motion for
                                       surgery breached the standard of        ligation to pay the unsatisfied por-
summary disposition. The case
                                       care resulting in plaintiff’s left      tion of the judgment in that case,
arose from an accident occurring
                                       vocal cords being paralyzed. The        and the excess-judgment rule in
at an intersection in the City of
                                       complaint alleged medical mal-
Ann Arbor. The decedent was                                                                              ➩ ➩ ➩
10
                                                                                                       Spring 2004
Member Profiles
Continued from page 7


cases against Bic lighters and ulti-     resentation to certain legislative     His hobbies and interests outside
mately overseeing their products         matters that effect our common         of work include reading fiction,
defense nationwide - among his           interests. Tom feels the greatest      and he has been known to enjoy
greatest challenges and rewards          benefit of becoming involved with       the good company in an occa-
in this area. Since his practice is      the section is the camaraderie of      sional round of golf.
statewide, and to a certain extent       other attorneys and addressing
involving other parts of the coun-       and resolving issues of common         Thomas M. Peters
try, Tom believes it is important        interest. He encourages others to      Vandeveer Garzia
to work with other attorneys in          become involved with the Section       1450 W. Long Lake Road, Ste. 100
our state on matters involving           because it is the better alternative   Troy, MI 48098
our common interests. The sec-           to looking the other way and hop-      Phone - 248-312-2800
tion provides Michigan lawyers           ing that things occurring around       Fax - 248-267-1242
with first level reporting and rep-                                              tpeters@vandeveergarzia.com
                                         you do not affect you adversely.



Case Summaries
Continued from page 10


Keeley barred an award of dam-           while acting as a volunteer for        concern regarding a door through
ages. The court held the language        defendant’s vacation bible school,     which children would pass when
of the agreement indisputably            the court nonetheless held plain-      attending Sunday school and va-
released the Farmer parties from         tiffs established a genuine issue of   cation bible school. Further, be-
any obligation to pay the underly-       material fact concerning whether       cause children could use the door
ing judgment as long as they per-        defendant breached its duty to a       to access the activity room and
formed the duties and obligations        licensee in connection with the        were unlikely to appreciate the
contained in the agreement. The          glass door not made of safety          risk of harm from the shattering
court held the application of the        glass that injured the daughter.       of a non-safety glass door, plain-
holding of Keeley in the manner          Under the circumstances, when          tiffs established a genuine issue
advanced by defendant was con-           the daughter accepted the invita-      of material fact whether the door
trary to the purpose and intent of       tion of her grandmother, a mem-        presented an unreasonable risk of
Justice Levin’s dissent, and held        ber of defendant, to provide child-    harm. Affirmed in part, reversed
Keeley requires an insurer found         care services during the bible         in part, and remanded.
liable for bad-faith failure to settle   school, the court could find no ba-
to pay the excess judgment to the        sis on which to conclude she vol-
extent the insurer would have            unteered to provide these services
been able to pay, regardless of the                                               These case summaries have been
                                         for a “material or commercial            provided to the Negligence Law
insured’s obtainment of a release.       purpose.” However, the trial court       Section courtesy of the State Bar of
Affirmed.                                 erred in granting summary dispo-         Michigan e-Journal. Visit the State
                                         sition for defendant because there       Bar’s website, www.michbar.org
    Kosmalski v St. John’s               was evidence defendant knew or           to subscribe to the e-Journal or if
  Lutheran Church, Court of              had reason to know of the hidden         you have questions, please email
     Appeals No. 240663                  danger of non-safety glass doors
                                                                                  lnovak@mail.michbar.org or
       (March 4, 2004)                                                            sbarger@mail.michbar.org
                                         on its premises. Plaintiffs pro-
   Rejecting plaintiffs’ argu-           duced meeting minutes in which a
ment their minor daughter was            member of defendant’s executive
an invitee when she was injured          council raised a non-safety glass

                                                                                                                    11
Negligence Law Section Quarterly




1.



             Spring Meeting 2004




     2.


12
                    Spring 2004




3.             4.




          5.




     6.



                             13
Negligence Law Section Quarterly
Where's Dr. Waldo?
Continued from page 6

on the strength of a certificate of        and that it was, therefore, enough    members of other professions
added qualification issued by the          that the expert matched the defen-    – the legislature has erected some
primary board, so that the expert         dant’s subspecialty certification,     strict threshold requirements for
witness must also exhibit such a          though it was issued by a differ-     bringing suit. M.C.L. 600.2912
credential? This is not how the           ent primary board. In Grossman,       (d) provides that a medical mal-
term “board certified” normally            the Court of Appeals declined to      practice suit cannot be filed until
is used in the medical community          review a trial court’s holding that   a six month notice of claim pe-
but if the courts’ answer is yes          it was sufficient that the expert      riod has run its course and then
– “board certified in that spe-            matched the defendant’s primary       requires that the complaint be
cialty” includes the holders of a         certification in general surgery       supported by an “Affidavit of
certificate of added qualification          (the salient issue was that of post   Merit signed by a health profes-
– then must the expert not only           surgery treatment), and that the      sional who the plaintiff’s attorney
match the defendant’s subspecial-         statute did not require a match of    reasonably believes meets the re-
ty certification but also possess          defendant’s certificate of added       quirements for an expert witness
the same primary board certification       qualifications in the subspecialty     under [M.C.L. 600.2169].” The
as well? Consider that under the 24       of vascular surgery. Among the        affidavit requirement was added
board certifications of the ABMS           issues enumerated in the Supreme      in 1993 at the same time the ex-
and its osteopathic counterpart, the      Court’s order granting leave is       pert witness statute was recast.
same subspecialty may be recog-           “the proper construction of the           The affidavit must spell out the
nized and credentialed by more than       word ‘specialty’ in the first sen-     applicable standard of care, set
one of the primary certifying boards.     tence of M.C.L. 600.2169 (1) (a)”     forth the expert’s opinion that the
For instance, critical care medicine      and “the proper construction of       standard was breached, identify
is a subspecialty of anesthesiology,      the phrase ‘that specialty’ in the    the defendant’s improper acts or
internal medicine and OB/Gyn. Fur-        second sentence of [the same stat-    omissions, and explain how the
ther, the relatively new field of sports   ute].” It is not beyond the realm     professional lapses proximately
medicine is a subspecialty of family      of imagination that the Supreme       caused the injury. Suit is not con-
medicine, internal medicine, emer-        Court could defeat the plaintiff      sidered to have been commenced
gency medicine and pediatrics.            in both cases, if it so chooses,      (thereby halting the statute of limi-
    Presently pending in the Su-          with a holding requiring double       tations) unless the affidavit is ap-
preme Court are two cases that            matching – an identity of both        pended to the complaint filed with
could clarify these matters: Hal-         primary board certification and        the court. Scarsella vs. Pollak, 461
loran Estate vs. Bahn (Docket             subspecialty certification. Such a     Mich. 547 (2000).
Number 121523), leave granted             ruling would make the finding of           The real challenge for the
468 Mich. 868 (March 25, 2003)            the Loch Ness Monster less of a       plaintiff’s attorney is not the ex-
and Grossman vs. Brown (Docket            task than trying to match an ex-      tra paperwork but the uncertain-
Number 122458), leave granted             pert with the same qualifications      ties hereinbefore discussed as to
468 Mich. 869 (March 25, 2003).           as defendant. For example, what       which qualifications a doctor must
In Halloran, the expert was a             if defendant is board certified in     possess in order to provide an ef-
board-certified anesthesiologist           pediatrics but has decided to give    fective affidavit of merit and later
with a subspecialty certificate in         up the practice and specialize in     testify as an expert witness at trial.
critical care medicine; defendant         emergency medicine? How many          The 1993 legislation gives legal
was a board-certified internist            physicians in the United States       efficacy to an affidavit signed by a
with a subspecialty certificate in         would match up? Lurking in the        doctor whose qualifications the at-
critical care medicine from his           Grossman case is another issue        torney “reasonably believes” will
primary board. A divided Court            that has caused endless difficulty     satisfy the expert witness statute.
of Appeals panel ruled that the           for plaintiffs’ attorneys. In medi-   As noted in Watts vs. Canady, 253
critical care subspecialty was the        cal malpractice cases – unlike        Mich. App. 468 (2002), “the Leg-
relevant specialty under the facts        malpractice litigation against        islature set a lower threshold” for

14
                                                                                                     Spring 2004




judging an affidavit of merit than     discovery and, once the limita-         241672, (failing to remand back to
for a later decision on whether the   tions period has elapsed, am-           trial court for further consideration)
affiant can testify at trial. A doc-   bush the plaintiff with a motion        and Giusti vs. Mt. Clemens General
tor whose background warrants         for summary dismissal alleging          Hospital, No. 241714, (improperly
the reasonable belief that he is a    the plaintiff’s expert lacks Sec-       interpreting deposition testimony of
qualified expert may ultimately        tion 2169 qualifications; hence,        plaintiff expert). If the legislature’s
be found insufficiently qualified       the affidavit is grossly non-con-       purpose is not to correct abuses,
to give trial testimony.              forming and the lawsuit was not         real or perceived, but to eliminate
    The contours of reasonable        validly commenced.                      the medical malpractice cause of
belief have yet to be drawn with          Even if a plaintiff should dodge    action altogether, it needs to say so
clarity. The Supreme Court in         that bullet on a finding that there      – openly and directly. That is not
Scarsella left open the question      was a reasonable, if mistaken,          a mission for judges, following a
whether a timely but “grossly         basis for believing in the affiant’s     designed agenda, to undertake on
non-conforming” affidavit can          statutory qualifications, plaintiff      the pretense of administering the
toll the statute of limitations,      may still be left scrambling to find     law by interpreting porous statutory
and the Court of Appeals also         a different expert witness on the       language for the purpose of slowly
has sidestepped that question,        eve of trial if he/she has reason to    eroding the concept of medical mal-
Kirkaldy vs. Rim, 251 Mich.           believe that the trial court or ap-     practice and, in so doing, immuniz-
App. 570 (2002). Though the           pellate court might not believe the     ing physicians and hospitals from
derisory phrase “grossly non-         expert is qualified to testify. Also     legal liability. The courts should,
conforming” leaves me with            are we not faced with the prospect      once and for all, mercifully bring
little doubt about what the ruling    that the trial court may not allow      to an end the decade-long game of
will turn out to be.                  an eleventh hour substitution of ex-    Where’s Dr. Waldo.
    Just when is an affidavit of       perts, even if one can be located?
merit grossly non-conforming              We are told that the 1993 stat-     Stanley          S.
and when is it deficient but, none-    ute was designed to insure “that in     Schwartz, a senior
theless, good enough for statute      malpractice suits against special-      partner in Som-
of limitations purposes on the        ists, the expert witnesses actually     mers, Schwartz,
strength of the attorney’s reason-    practice in the same specialty” (this   Silver         and
able belief? The Supreme Court        is a quotation from a 1995 Senate       Schwartz, PC in
appeal in Grossman vs. Brown          Committee Report cited in Justice       Southfield, Michi-
comes from an unsuccessful chal-      Cavanagh’s dissent in McDougall         gan is a Professor at the University
lenge to an expert’s affidavit and     vs. Schanz, 461 Mich. 15, 48,           of Michigan Law School teaching
could provide an opportunity for      N.13 (1999), a case upholding the       a seminar on Trial Advocacy and
some clarification, but if the an-     constitutionality of the statute).      Law and Medicine. The Sharehold-
swer in the end lies only in the      Yet my doleful feeling is that it is    ers in his firm have established a
eye of the beholder (the trial and    being transformed by judges into        foundation to enhance the quality of
appellate judges), then consider      a trap that extinguishes the claims     life and education in their commu-
the plaintiff’s predicament. The      of grievously wronged patients          nity. He can be reached via email at
Supreme Court says, “There is         who seek their day in court on          ssschwartz@s4online.com.
no statutory or case law basis for    meritorious allegations of physician
ruling that a medical malprac-        negligence. To better understand
tice expert must be challenged        the court’s somewhat obfuscated         Stanley S. Schwartz
within ‘a reasonable time.’”          attitude regarding expert witnesses,    Sommers, Schwartz, Silver &
                                                                                Schwartz PC
Greathouse vs. Rhodes, 465            all one need do is read two recent      2000 Town Center Suite 900
Mich. 885 (2001). A wily de-          Court of Appeals per curiam opin-       Southfield, MI 48075
fense counsel can join issues on      ions (Dec. 2, 2003), McConnell vs.      Phone – 248-355-0300
the complaint, proceed through        William Beaumont Hospital, No.          Fax – 248-746-4001

                                                                                                                  15
Legislative Update
Continued from page 8

public. While these errors have        of merit to be corrected without        Todd N. Tennis has
nothing to do with the merit of        affecting the entire case. We are       been a lobbyist with
the plaintiff's or defendant’s case,   hopeful that this bill will receive a   Capitol Services, Inc.,
they are nonetheless tipping the       hearing sometime this spring.           a multi-client lobby-
scales of justice one way or the                                               ing firm that special-
other. Moreover, the attorneys         William         (Bill)                  izes in representing
themselves then often become the       Wortz has been                          non-profit organiza-
targets of legal malpractice cases.    with Public Affairs                     tions, since 1995.
   House Bill 5338, as introduced,     Associates, Inc. for                    Prior to becoming a lobbyist, Todd
would have solved the problem by       eight years and be-                     earned a degree in political science
removing the requirement that an       fore coming to work                     from the University of Michigan,
affidavit of merit be attached to       there served four                       and worked as a staff representa-
the initial case filing. This would     years as Director of Public Policy      tive for former State Senator Fred
have prevented an entire case be-      for the Michigan Association of         Dillingham. He has represented
ing thrown out (or defaulted, from     Realtors. Bill also has extensive ex-   the Negligence Law Section of the
the defense standpoint) merely         perience with the Michigan House        State Bar since 1999. Todd lives in
due to a technical error on an af-     of Representatives and has worked       Lansing with his wife Cheryl and
fidavit of merit. However, opposi-      in British House of Commons.            his son Troy.
tion from the insurance industry
                                       William Wortz
and medical field made it clear         Public Affairs Associates Inc.          Todd N. Tennis
that this solution was not politi-     600 West Shiawassee                     Capitol Services Inc.
cally feasible. House Bill 5338 is     Lansing, MI 48933                       526 Townsend
currently being re-drafted with an     Phone – 517-371-3800                    Lansing, MI 48933
effort to address these concerns,      Fax – 517-371-8015                      Phone - 517-372-0860
while also allowing affidavits          wortz@paaonline.com                     Fax – 517-372- 0723
                                       www.paaonline.com




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Where's Dr. Waldo? . . .. . .. . .3
Member Profiles . . .. . .. . .7
Legislative Update . . .. . .. . .8
Second Annual
  Earl J. Cline Memorial
  Negligence Award . . .. . .9
Case Summaries . . .. . . 10
Spring Meeting Photos . . . 12

								
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