Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

October 30, 2009

138712

DAVID F. SIKKEMA, Plaintiff-Appellee,

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 fo r 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.

C ORRIGAN , 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 am putated, 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 trea tment at the ER in November 2005 caused the need for amputati on. The sections of the notice describing the facts and the standards of care app licable to defendants, required by MCL 600.2912b(4)(a) through(d), suggest that th e doctors should have diagnosed and treated for compartment syndrome inst ead of for blood clots and d eep vein thrombosis (DVT). The statement of proximate cause, re quired by MCL 600.2912b(4)(e), states:

Drs. Hartgerink and Bradley’s failu re to timely diagnose and treat [plaintiff’s] Compartment Syndrome and to comply with the standard of care as set forth in paragraphs 3 an d 4 was the proximate cause of hisI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk October 30, 2009

d1027 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 Syndro me deprived [plaintiff] of the opportunity for a better tr eatment result. That loss of opportunity was greater than 50 percent.

The notice fails to explain several crucial elem ents. First and foremost, it fails to address whether and how compartment syndrome, as opp osed to plaintiff’s ongoing history of blood clots and DVT, caused the need for am putation. 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 a lleges that defendants should have consulted other specialists, the notice’ s fact section specifically admits that

defendants did consult with those specialists; the spec ialists refused to evaluate because even they did not su spect compartment synd rome. Most significantly, as noted, the

notice never even mentions the date of th e eventual diagnosis and amputation, thus leaving the reader with no information concerning the inte rvening time frame and events between plaintiff’s visit to the ER an d the unknown date on which compartment syndrome was ultimately suspect ed and diagnosed. Accord ingly, 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).

Y OUNG , J., joins the statement of C ORRIGAN , J.