Gibbons v Thompson, O'Neil & Vanderveen, et, al., unpublished per curiam opinion of the court of appeals, issued March 27, 2007 (Docket No. 271628)

Link: http://courtofappeals.mijud.net/documents/OPINIONS/FINAL/COA/20070327_C271628_37_271628.OPN.PDF

Underlying Case or Transaction: Medical Malpractice

Key Concepts: (1) Attorney-Judgment Rule (2) Use of experts

In this case, Dr. Hartzler performed surgery on plaintiff for a strangulated hernia. During the procedure, plaintiff's small bowel ruptured. A general surgeon, Dr. Lee Britton, took over plaintiff's post-operative care. Plaintiff became hypotensive and went into septic shock and later suffered a heart attack and stroke.

Plaintiff hired defendants to pursue any medical malpractice claims he had against Hatzler, Britton, and the Alpena General Hospital nursing staff. After defendants consulted with Dr. McDonell, a general surgeon, Dr. VanHoutzen, an internist, and a nurse, defendants decided to file a notice of intent only against Hartzler. Plaintiff's case against Hartzler went to trial and plaintiff received a $600,000 judgment.

Plaintiff then sued defendants for malpractice. Plaintiff claimed that defendants failed to sufficiently investigate his potential malpractice claims against Britton and the nursing staff. Plaintiff also claimed that defendants failed to inform him of the limitation period and the fact that they had not filed a notice of intent against Britton and the nursing staff before the limitation period expired. Defendants moved for summary disposition on the basis that their decision not to pursue claims against Britton and the nursing staff was protected by the attorney-judgment rule. The trial court agreed and granted summary disposition.

The court of appeals began by explaining the attorney-judgment rule: "An attorney has an implied duty to exercise reasonable skill, care, discretion, and judgment in representing a client. Further, an attorney is obligated to act as an attorney of ordinary learning, judgment, or skill would under the same circumstances. However, an attorney is not a guarantor of the most favorable possible outcome, nor must an attorney exercise extraordinary diligence or act beyond the knowledge, skill, and ability ordinarily possessed by members of the legal profession. Further, where an attorney acts in good faith and in honest belief that his acts and omissions are well founded in law and are in the best interest of the client, the attorney is not answerable for mere errors in judgment." [Citations and internal quotes omitted] [Generally citing Mitchell v Doughtery, 249 Mich App 668, 677; 644 NW2d 391 (2002) and Simko v Blake, 448 Mich 648, 655-656; 532 NW2d 842 (1995)].

Plaintiff claimed that defendants should not have relied on opinions from experts who were not willing to testify at trial. The court of appeals held that "there is no requirement either in law or in logic that the experts used to determine whether plaintiff has a potential claim must be the experts called at trial." In fact, the Michigan Supreme Court has recognized that, depending on the stage of the litigation, plaintiffs will likely use different experts in the course of establishing their medical malpractice claims. Grossman v Brown, 470 Mich 593, 598-599; 685 NW2d 198 (2004).

Next, plaintiff claimed that defendants conducted an unreasonable investigation because MCL 600.2961(1) requires a medical professional who is testifying regarding the standard of care to be a specialist in the same area as the person against whom the malpractice claim is made and VanHouzen was not qualified to testify about the standard of care for a general surgeon and neither VanHouzen or McDonnell were qualified to testify about the standard of care for the hospital nursing staff. The court of appeals held that the requirements of 600.2961(1) do not apply to experts who testify to causation and both VanHouzen and McDonell opined that, even if they breached the standard of care, neither Britton nor the nursing staff caused plaintiff's injuries. Since the experts did not believe that Britton or the nursing staff caused plaintiff's injuries, the defendants did not act unreasonably when they failed to obtain additional standard of care witnesses under MCL 600.2169(1).

Finally, plaintiff claimed that defendants breached a duty to him when they failed to timely inform him and his family that they would not serve a notice of intent to Britton or the nursing staff. However, plaintiff testified that defendants told him when the limitation period would expire for his malpractice claims. Further, plaintiff testified that defendants told him that a notice of intent had to be filed against each person they intended to sue before the limitation period expired. Plaintiff could not create a genuine issue of material fact by arguing that defendants had a duty to inform his family about the limitations period when his own testimony makes clear that he, the client, knew the limitation period and understood that all notices of intent had to be served within the limitation period.