Order Michigan Supreme Court
Lansing, Michigan
October 30, 2009 Marilyn Kelly,
Chief Justice
138712 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
DAVID F. SIKKEMA, Diane M. Hathaway,
Plaintiff-Appellee, Justices
v SC: 138712
COA: 288758
Kent CC: 08-004608-NO
METRO HEALTH HOSPITAL,
Defendant,
and
JOHN S. BRADLEY, M.D.,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the March 11, 2009 order
of the Court of Appeals is considered, and it is DENIED, because we are not persuaded
that the question presented should be reviewed by this Court.
CORRIGAN, J. (dissenting).
I would grant defendant’s application for leave to appeal because I conclude that
plaintiff’s notice of intent to file a claim, required by MCL 600.2912b, was insufficient.
The notice establishes that plaintiff’s left leg was amputated, although it does not state
when the leg was amputated. Plaintiff sued two emergency room (ER) doctors and the
hospital where the ER was located, alleging that his negligent treatment at the ER in
November 2005 caused the need for amputation. The sections of the notice describing
the facts and the standards of care applicable to defendants, required by MCL
600.2912b(4)(a) through(d), suggest that the doctors should have diagnosed and treated
for compartment syndrome instead of for blood clots and deep vein thrombosis (DVT).
The statement of proximate cause, required by MCL 600.2912b(4)(e), states:
Drs. Hartgerink and Bradley’s failure to timely diagnose and treat
[plaintiff’s] Compartment Syndrome and to comply with the standard of
care as set forth in paragraphs 3 and 4 was the proximate cause of his
2
development of severe Compartment Syndrome and his eventual loss of
limb. Drs. Hartgerink and Bradley’s failure to timely diagnose and treat
[the plaintiff’s] Compartment Syndrome deprived [plaintiff] of the
opportunity for a better treatment result. That loss of opportunity was
greater than 50 percent.
The notice fails to explain several crucial elements. First and foremost, it fails to address
whether and how compartment syndrome, as opposed to plaintiff’s ongoing history of
blood clots and DVT, caused the need for amputation. Next, it never discusses whether
or how his presenting symptoms in the ER were inconsistent with his history of blood
clots and DVT, and thus why a prudent doctor would necessarily test for compartment
syndrome. Indeed, although the notice’s section on breach alleges that defendants should
have consulted other specialists, the notice’s fact section specifically admits that
defendants did consult with those specialists; the specialists refused to evaluate because
even they did not suspect compartment syndrome. Most significantly, as noted, the
notice never even mentions the date of the eventual diagnosis and amputation, thus
leaving the reader with no information concerning the intervening time frame and events
between plaintiff’s visit to the ER and the unknown date on which compartment
syndrome was ultimately suspected and diagnosed. Accordingly, at a minimum, the
notice did not apprise defendants of how their failure to initially diagnose and treat
compartment syndrome caused an otherwise avoidable need for amputation. Thus, the
notice was statutorily insufficient because it utterly failed to describe the “manner in
which it is alleged the breach of the standard of practice or care was the proximate cause
of the injury claimed in the notice.” MCL 600.2912b(4)(e).
YOUNG, J., joins the statement of CORRIGAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 30, 2009 _________________________________________
d1027 Clerk