Erickson et al v. United States of America

Filing 10

OPINION; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
_______________________

ALAN D. ERICKSON and MONICA
ERICKSON,
Plaintiffs,

Case No. 2:15-CV-95

v.
HON. GORDON J. QUIST
UNITED STATES OF AMERICA,
Defendant.
______________________________/
OPINION
Plaintiffs, Alan and Monica Erickson, filed a complaint against Defendant, the United States
of America, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2674. Plaintiffs allege that several
pharmacists employed by the Department of Veterans Affairs negligently recommended that Alan
Erickson discontinue use of an anticoagulant drug and that Mr. Erickson suffered a stroke as a result.
The Government argues that the affidavit of merit filed with Plaintiffs’ complaint does not satisfy
the standards set forth in Michigan law, and that Plaintiffs’ complaint should be dismissed or
Plaintiffs should be required to file a new affidavit of merit. The Government further argues that
Plaintiffs’ ordinary negligence claim should be dismissed because it sounds in medical negligence.
For the reasons that follow, the Court will grant the Government’s motion. The Court will dismiss
Plaintiffs’ ordinary negligence claim and allow Plaintiffs to file a new affidavit of merit.
Background1
In 2008, Alan Erickson underwent surgery to replace his aortic valve. Following that
surgery, Mr. Erickson was prescribed Warfarin, an anticoagulant drug, and was monitored by the
Anticoagulation Clinic at the Veterans Administration Medical Center in Iron Mountain, Michigan.
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The allegations in Plaintiffs’ complaint are taken as true for purposes of this motion.

In 2013 and 2014, Mr. Erickson received care from three pharmacists whose actions are at issue in
this case: Alex Barker, Kristin Higgins, and Benjamin Van Guilder. In January 2014, based upon
actions and recommendations from the pharmacists at the Anticoagulation Clinic, Mr. Erickson
discontinued use of Warfarin. The pharmacists incorrectly believed that Mr. Erickson had a
bioprosthetic valve when in fact Mr. Erickson actually had a mechanical valve. On June 21, 2014,
Mr. Erickson suffered a stroke.
Discussion
1.

Medical Malpractice Claim
Michigan law requires a plaintiff in a medical malpractice action to “file with the complaint

an affidavit of merit signed by a health professional who the plaintiff’s attorney reasonably believes
meets the requirements for an expert witness,” and sets forth a number of requirements for that
affidavit. M.C.L. § 600.2912d. The Government argues that the affidavit of merit attached to
Plaintiffs’ complaint does not meet the requirements of Michigan law. Plaintiffs respond that the
affidavit of merit requirement does not apply to cases filed in federal court, and that even if it did
apply, the affidavit they filed satisfies the statute’s requirements.
A.

Applicability of the Affidavit of Merit Requirement

Plaintiffs argue in a footnote that Michigan’s affidavit of merit requirement does not apply
to cases in federal court because it conflicts with the Federal Rules of Civil Procedure. Plaintiffs’
argument is based on Rule 8, which requires only a “a short and plain statement of the claim,” and
Rule 9, which specifies certain claims that are subject to heightened pleading standards. See Fed.
R. Civ. P. 8, 9. Plaintiffs argue that because those rules do not contain a requirement for an affidavit
of merit, they conflict with Michigan law, and that the federal rules control. This argument has
been rejected by other judges in this district. See Jones v. Corr. Med. Servs., Inc., 845 F. Supp. 2d

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824, 855-58 (W.D. Mich. 2012); Lee v. Putz, No. 1:03-CV-267, 2006 WL 1791304, at *3-6 (W.D.
Mich. June 27, 2006). Moreover, several courts outside this circuit have rejected similar arguments
when presented with state laws like the Michigan statute at issue. See e.g. Chamberlain v.
Giampapa, 210 F.3d 154, 161 (3d Cir. 2000) (concluding that a New Jersey statute requiring an
affidavit of merit did not conflict with Rule 8 or Rule 9); see also Jones, 845 F. Supp. 2d at 854 n.
11 (listing cases).
The Court agrees with the conclusions reached by the other judges in this district. See id.;
Lee, 2006 WL 1791304, at *6. The requirement that a plaintiff file an affidavit of merit with his
complaint has no effect on the content of the complaint itself, and thus is not governed by Rules 8
and 9. As Judge Maloney explained, the affidavit of merit requirement is “not simply a heightened
pleading standard under another name; it is an entirely different procedure that only happens to take
place contemporaneously with the pleadings.” Jones, 845 F. Supp. 2d 824, 856. Moreover,
although Plaintiffs have not discussed the Erie analysis, the Court concludes that, for the reasons
previously articulated by other judges in this district, the affidavit of merit requirement properly
applies in a federal diversity action. See id. at 857-58; Lee, 2006 WL 1791304, at *5-6.
Accordingly, Michigan’s affidavit of merit requirement applies to this action.
B.

Qualification of Expert

Michigan law requires an affidavit of merit signed by “a health professional who the
plaintiff’s attorney reasonably believes meets the requirements for an expert witness under [M.C.L.]
section 2169.” M.C.L. § 600.2912d(1). M.C.L. § 2169 sets forth different standards for experts in
medical malpractice actions depending on whether the professional whose conduct is at issue was
a specialist or not. If the professional whose conduct is at issue was not a specialist, the expert need
only practice or teach in the same health profession. M.C.L. § 2169(b). If the professional whose

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conduct is at issue was a specialist, however, the expert must have specialized in the same area and
must have practiced or taught in that specialty. M.C.L. § 2169(a)-(b).
Plaintiffs’ affidavit of merit was authored by Richard B. Dew, III, a licensed pharmacist who
practices in Massachusetts. The Government argues that Mr. Dew is not qualified to submit an
affidavit of merit in this case because, unlike the pharmacists whose conduct is at issue, Mr. Dew
is not a doctor of pharmacy or a specialist in anticoagulation care. Plaintiffs respond that their
counsel reasonably believed that the requirement that experts be specialists does not apply to
pharmacists, and that Mr. Dew thus qualified as an expert.
Michigan courts have refused to apply the requirement for specialists to certain types of
health professionals, including physicians assistants and occupational therapists. See Wolford v.
Duncan, 279 Mich. App. 631, 636, 760 N.W.2d 253, 256 (2008); Brown v. Hayes, 270 Mich. App.
491, 499-500, 716 N.W.2d 13, 19 (2006), rev’d in part on other grounds 477 Mich. 966, 724 N.W.2d
470 (2006). The Court of Appeals explained that § 2169’s use of the term specialist “only include[s]
physicians,” and thus the requirement for experts to be specialists “do[es] not apply to nonphysician
defendants.” Brown v. Hayes, 270 Mich. App. at 499-500, 716 N.W.2d at 19. See also Wolford,
279 Mich. App. at 636, 760 N.W.2d at 256 (explaining that because a physician’s assistant is not
a physician, the requirements for specialists do not apply). As the Government points out, however,
the Michigan Court of Appeals has also held that the specialist requirement applies to dentists. See
Pena v. Minguske, No. 265986, 2007 WL 1575270, at *5 (Mich. Ct. App. May 31, 2007) (per
curiam).
This Court cannot say with certainty whether Michigan courts would apply the specialist
requirement in § 2169 to pharmacists. No Michigan court has ever directly addressed the issue.
Moreover, the court of appeals has previously stated that the specialist requirement applies only to

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physicians, although it has applied the rule more broadly. Finally, although a Michigan Supreme
Court order remanding a case could be read to imply that the specialist requirement applies to
pharmacists, that conclusion is far from clear. See Mullaney v. Kistler, 471 Mich. 932, 689 N.W.2d
233 (2004).
As previously noted, Michigan law requires an affidavit from a health professional that the
plaintiff’s attorney reasonably believes meets the requirements for an expert—the affiant need not
actually meet those requirements. M.C.L. § 600.2912d(1). See also Brown v. Hayes, 477 Mich.
966, 724 N.W.2d 470 (2006). Moreover, an attorney’s belief that a proffered expert meets the
statutory requirements may be reasonable, even if it is ultimately deemed incorrect, if the law is not
settled at the time the affidavit is filed. See id. In light of the lack of clarity on this issue, it was
reasonable for Plaintiffs’ attorney to conclude that the specialty requirements for an expert under
§ 2169 did not apply in this case, and that Mr. Dew would qualify as an expert.
C.

Sufficiency of the Affidavit

The Government argues that, even if Mr. Dew is qualified to submit an affidavit, the
affidavit that he submitted was insufficient because it did not meet the statutory requirements. In
particular, the Government argues that the affidavit does not explain how each pharmacist’s actions
breached the standard of care, and does not describe how any such breaches proximately caused Mr.
Erickson’s injuries. Plaintiffs respond that an affidavit is a pleading that must be read in conjunction
with the complaint, and that together the complaint and the affidavit satisfy the statutory
requirements.
Section 600.2912d(1) specifically sets forth several requirements for affidavits of merit.
M.C.L. §600.2912d(1). Among other things, the affidavit must state the applicable standard of
practice or care, and the actions that should have been taken or omitted by the health professional

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to comply with that standard. Id. The affidavit must also state the manner in which the breach of
the standard of practice or care proximately caused the plaintiff’s injury. Id.
Mr. Dew’s affidavit fails to meet those statutory requirements. Although it states the
standard of care, it fails to specify how each of the pharmacists breached that standard of care or
what actions they should have taken to comply with the standard of care. The affidavit simply lists
a number of actions taken by the pharmacists as a group, and concludes that such actions violated
the standard of care. It fails, however, to specify which actions were taken by which individual, or
what actions each individual should have taken to comply with the standard of care. Finally, the
affidavit states Mr. Dew’s conclusion that the pharmacists’ actions proximately caused Mr.
Erickson’s injury, but fails to explain how they did so. As the Michigan Supreme Court previously
explained, “answering the question ‘How was the breach the proximate cause of the injury?’
requires more than “The breach caused the injury.” Ligons v. Crittenton Hosp., 490 Mich. 61, 7778, 803 N.W.2d 271, 281-82 (2011). In other words, the statute “requires a statement not just that
a breach caused the injury, but the manner in which the breach caused the injury.” Id. at 78, 803
N.W.2d at 282.
Finally, the Michigan Supreme Court has held that an affidavit of merit is not a pleading, and
is not “part and parcel of a complaint.” Id. at 82-85, 803 N.W.2d at 285-86. The cases that
Plaintiffs cite do not support the argument that deficiencies in an affidavit of merit may be cured by
the contents of a complaint. Accordingly, the Court concludes that Plaintiffs’ affidavit of merit fails
to satisfy the statutory requirements.

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2.

Ordinary Negligence Claim
The Government has moved to dismiss Plaintiffs’ claim for ordinary negligence, arguing that

the allegations in the claim sound in medical malpractice. Plaintiffs respond that the claim is based
on a what amounts to a clerical error, and thus does not raise questions of medical judgment.
A plaintiff may not avoid the procedural requirements for medical malpractice claims by
labeling the action one for ordinary negligence. Dorris v. Detroit Osteopathic Hosp. Corp., 460
Mich. 26, 43, 594 N.W.2d 455, 464 (1999). Whether a claim sounds in medical malpractice or
ordinary negligence depends on whether “the facts allegedly raise issues that are within the common
knowledge and experience of the jury or, alternatively, raise questions involving medical judgment.”
Id. at 45-46, 594 N.W.2d at 465.
Plaintiffs assert that the issue in this case amounts whether the pharmacists read Mr.
Erickson’s chart correctly. That is, however, an overly simplified description of the issue. A jury
would be required to come to a conclusion as to whether the pharmacists acted negligently in
making a decision, and then providing a recommendation, that Mr. Erickson did not need blood
thinner based on the type of valve that he had. Such conclusion would require the jury to determine
whether the valve that Mr. Erickson had—named Sorin Carbomedics Carbo-Seal Valsalva Mode
CP-029—was a mechanical or biological valve, and whether such valve necessitated the use of
blood thinners. Such matters are not within the common knowledge and experience of jurors, and
raise questions involving medical judgment. Accordingly, the Court will dismiss Plaintiffs’ ordinary
negligence claim.
Conclusion
Michigan law requires a plaintiff in medical malpractice action to file an affidavit of merit.
M.C.L. § 600.2912d. That requirement applies to cases brought under Michigan law in federal court
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as well as state court. Plaintiffs’ counsel reasonably believed that Dr. Dew met the requirements
for an expert under Michigan law, and thus it was not improper to submit an affidavit of merit from
Mr. Dew. The affidavit itself, however, did not meet Michigan’s statutory requirements. Rather
than dismiss the action, however, Plaintiffs will be given an opportunity to submit a new affidavit
that complies with the statutory requirements and pursue their medical malpractice claim. The Court
will, however, dismiss Plaintiffs’ claim for ordinary negligence because that claim sounds in
medical malpractice.
An Order consistent with this Opinion shall issue.

Dated: January 27, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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