Medical Malpractice

When medical malpractice claim involves non medical employees, it must be determined if the violation required medical judgment before summary disposition is appropriate.

Concluding that the trial court acted prematurely in determining the nature of the plaintiff's claims without the benefit of discovery or other factual development, the court reversed the trial court's order granting the defendants' summary disposition motion on the basis that all of the claims arose solely in medical malpractice. Plaintiff filed a negligence action seeking damages for a double-mastectomy that was performed despite the fact that a biopsy revealed she did not have breast cancer. The complaint included "alternative allegations as to how the surgery went forward despite the negative biopsy finding, including a failure of clerical employees or medical employees to transmit and/or file the biopsy report as well as assertions that the surgeon conducted the surgery without requesting and/or reviewing the biopsy report." Plaintiff alleged that on 7/27/09, at age 34, she was seen by defendant-Maresca (a surgeon) for a suspicious lump in her left breast. The first amended complaint alleged that after conducting a physical exam, Maresca concluded that a fine needle aspiration biopsy should be conducted to determine if the lump was cancerous. She performed the fine needle aspiration and sent the resulting sample to the defendant-hospital's pathology department for analysis. Maresca allegedly told plaintiff at the office visit "that she believed the lump was cancerous and strongly recommended surgery as soon as possible." Maresca recommended a left breast mastectomy and, given the diagnosis, as well as plaintiff's family history, also recommended a prophylactic removal of the right breast. Plaintiff agreed to the procedures and surgery was scheduled for 8/5. Two days after the office visit and a week before the planned surgery, the specimen was analyzed by a pathologist in the hospital's pathology department. The pathologist's report stated that the specimen was not cancerous. The complaint alleged, inter alia, that "the results of the fine needle aspiration taken of the lump in plaintiff's left breast . . . was misfiled, misidentified, and/or otherwise not physically placed in plaintiff's medical or hospital chart prior to the mastectomy surgery." It also stated that "a copy [of the pathology report] . . . should have been sent, routed and/or otherwise made available to [Dr.] Maresca." Further, the complaint asserted that due to the hospital's "agents, servants and/or employees[']" failure to transmit the report and/or place it in plaintiff's file, Dr. Maresca remained unaware of the pathologist's findings and so proceeded with the surgery during which she removed both of plaintiff's breasts. The court noted that the Michigan Supreme Court made it clear in Bryant that "the issue of whether the claim sounds in medical malpractice or negligence is not to be resolved through generalized descriptions of the nature of the claim, but instead, by a specific review of the facts." The complaint "was necessarily drafted without access to proofs concerning which hospital employee was supposed to file the biopsy report, whether and when the report was actually filed, and whether it was seen by or available to the surgeon." Thus, it necessarily spoke broadly and encompassed both medical and non-medical personnel. Whether or not the persons "responsible for the alleged miscommunication were medical professionals or clerks, secretaries, or other non-medical personnel is not yet known, except perhaps to defendants." Further, "even if some or all the relevant actions or omissions were committed by medical professionals, it was similarly premature for the trial court to determine whether those actions or omissions involved medical judgment." Remanded.