Court reinstates malpractice-wrongful death claim summarily dismissed because of alleged defects in expert's affidavits
Mildred Jones sued Botsford's continuing care facility and Livonia Family Physicians after her husband died. She alleged that a gastrostomy PEG tube had been inserted improperly, leading to a massive infection. The trial judge granted the defendant's motions to dismiss, based on arguments that the nursing and physician affidavits filed by the family were deficient because their experts' qualifications were not precisely the defendants' qualifications. The trial judge held that the family's attorneys could not reasonably have believed that their experts' qualifications were comparable to the defendants.
The Court of Appeals reversed the trial judge. The appellate judges noted that while the nurse who purportedly erred was an LPN, while the nursing affidavit of merit was filed by an RN, there were several problems with the lower court's holding: first, the medical records available to the family were contradictory with regard to the identity and qualifications of the nurse, allowing the attorneys no basis to identify the proper credentials for a reviewing nurse. Furthermore, the defendants completely failed in their mandatory duty to respond to the Notice--thus failing to clarify the content of the record. Finally, the court pointed out that when the defendants filed their Affidavit of Meritorious Defense, it was executed by an RN--certainly suggesting that the family's attorney's similar action was reasonable.
The trial court had also dismissed the claim against the family doctor based on the argument that the physician affidavit of merit was from an over-qualified Internal Medicine physician who practiced in geriatrics. The reviewing judges noted that on the defendants' website the physician was identified as a "specialist" in geriatrics, contributing to the family's attorney's error. They also noted that both physicians specialized in geriatrics--although they were credentialed by different organizations. Under the circumstances, the family's doctor may not be qualified to testify at trial, but the attorneys were not unreasonable in relying upon his affidavit of merit.