Lack of 'reasonable diligence' defeats untimely nonparty fault notice

Michigan Court of Appeals - Medical Malpractice

Dr. Jennifer Battiste and the Caledonia, Mich., clinic she works for learned a hard lesson about filing a late notice of nonparty fault.

Because they did not exercise "reasonable diligence" to discover a nonparty doctor they say was at fault, Battiste and her fellow medical-malpractice defendants will be barred from asking the jury to assess that doctor's fault and, thus, his liability should the medical-malpractice lawsuit against them go to trial.

"The percentage of fault that otherwise would have been shifted to the nonparty doctor will have to be shared among Battiste and the other defendants," said Spring Lake attorney Elliot B. Grysen, representing the plaintiff.

"There will be no place on the verdict form for the nonparty doctor's name."

That's the effect of the Michigan Court of Appeals ruling in Snyder v. Advantage Health Physicians, et al.

The "defendants failed to establish that the facts underlying their notice of nonparty fault against [the nonparty doctor] could not, with reasonable diligence, have been known earlier," said the Snyder court in a unanimous per curiam decision.

The judges said the defendants should have undertaken an "independent investigation" into a potential defense that, in the court's opinion, could have been gleaned from the allegations in the plaintiff's notice of intent (NOI) to sue.

Although the nonparty doctor was identified in the NOI, he was not named as a defendant in the plaintiff's lawsuit.

The Nov. 18 opinion, which reversed the lower court's order allowing the defendants to file a notice of nonparty fault and remanded the case for further proceedings, was signed by Judges Kurtis T. Wilder, Henry William Saad and Michael R. Smolenski.

"The defendants didn't conduct the investigation they should have," Grysen said.

They were in the best position to know what the doctors did and didn't do, he said, "so the NOI should've tipped them off that there was a possible defense out there."

"Consequently," he said, "they lose out on the benefits of a nonparty fault notice, which is that a jury can assign fault to the provider, but the provider can't be held liable and the plaintiff can't collect."

Still, said Grand Rapids attorney Jon D. VanderPloeg of Smith Haughey Rice & Roegge PC, who represents Battiste and the other defendants in Snyder, the ruling won't prevent his clients from asking the jury to return a "no cause of action" verdict based on the nonparty's negligence.

Michigan law requires that fault and, thus, liability be apportioned among parties and nonparties. But the Michigan Court Rules require that, before a jury or a judge can assess a nonparty's fault, the defendant must serve timely notice of "a claim that a nonparty is wholly or partially at fault," which the Court of Appeals said the defense did not do.

Medical-malpractice defense attorney Robert P. Siemion of Siemion Huckabay Bodary Padilla Morganti & Bowerman PC in Southfield said Snyder sheds light on an important, albeit unusual, aspect of NOIs.

"If the NOI says that doctors A, B, and C committed malpractice, but only Dr. A is sued, then the defense lawyer representing Dr. A should look hard at Dr. B and Dr. C for nonparty fault purposes," he said.

VanderPloeg said in an e-mail statement the Court of Appeals decision "turns the question of diligence on its head."

He said it was inconsistent to criticize the defendants for not recognizing sooner the nonparty's potential fault, yet overlook the fact that the plaintiffs didn't, ultimately, sue the nonparty because their investigation "had not discovered evidence to support a claim against the other doctor."

In February 2005, Margaret Snyder sued her doctor, Dr. Jennifer Battiste, Caledonia Family Practice and Advantage Health Physicians for failure to diagnose uterine cancer.

In October 2006, 19 months after the defendants filed their answer to her complaint, they asked the court to allow them to file a late notice of nonparty fault.

Michigan Court Rules require such notices to be filed within 91 days of the answer being filed, unless the defendant can show "reasonable diligence" wouldn't have brought the nonparty to its attention any sooner.

Snyder objected to the defendants' motion because the defendants knew years earlier about the nonparty, the radiologist at Saint Mary's Mercy Medical Center who performed an ultrasound on Snyder.

Snyder said she alleged in her July 2004 NOI that the radiologist had misinterpreted the ultrasound results, and that Battiste and Snyder relied on that misinterpretation. Plus, she said, the lawyer who represented Battiste and the other named defendants had represented St. Mary's at the time the NOI was filed.

The defendants countered that they didn't have reason to suspect the radiologist may be at fault until after his deposition in April 2006. Snyder's lawyer, they contended, led them to believe the radiologist wasn't at fault when, in 2004, Snyder's lawyer said he wasn't going to sue the radiologist because he hadn't found evidence to support a claim.

The trial court allowed the defendants to file their notice, but the Court of Appeals reversed.

The plaintiffs' NOI, and even their complaint, laid out for the defendants the "potentially viable defense or partial defense ... that (the radiologist) misdiagnosed the mass and Dr. Battiste merely relied on the misdiagnosis," said the Snyder panel.

"The exercise of reasonable diligence would have involved undertaking some direct and independent action to investigate this potential defense, yet, despite having 'reason to suspect' that this potential defense existed, defendants undertook no independent investigation," the Court of Appeals judges concluded.

Grysen said Snyder teaches medical-malpractice plaintiffs' lawyers a good lesson.

"Put the time into your NOIs," he said. "By telling the defendants your theories about who did what wrong, you'll force them to investigate."

And, as the Snyder opinion makes clear, Grysen said, "Shame on them if they don't."

VanderPloeg said his clients haven't decided whether they will seek leave to appeal to the Michigan Supreme Court.

If you would like to comment on this story, please contact Todd C. Berg at (248) 865-3113 or todd.berg@mi.lawyersweekly.com.

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