The Court of Appeals, State of Michigan (“Michigan Appellate Court”) held in its “On Reconsideration” opinion filed on March 18, 2020 that “dismissal [of the plaintiff’s Michigan medical malpractice case] was not appropriate” for his failure to appear at a show-cause hearing.
The plaintiff alleged in his Michigan medical malpractice lawsuit that the defendant physician committed medical malpractice in performing a procedure on him in November 2017. The plaintiff included claims against the medical facility where the procedure was performed and against the professional corporation that employed the defendant physician. The Michigan medical malpractice lawsuit was dismissed without prejudice on August 15, 2018, after the plaintiff failed to attend a show-cause hearing. The show-cause hearing was held so that the plaintiff could explain why the defendants had not been served with summonses even though the 90 day effective period of the summons had not yet expired. The plaintiff filed an appeal.
Michigan Appellate Court Opinion
The Michigan Appellate Court stated, “It appears that the trial court dismissed plaintiff’s action under MCR 2.504(B)(1), which provides that “[i]f a party fails to comply with these rules or a court order, upon motion by an opposing party, or sua sponte, the court may enter a default against the noncomplying party or a dismissal of the noncomplying party’s action or claims.” Trial courts possess the authority to sanction parties, including by dismissing the action … But dismissal is a “drastic step that should be taken cautiously” … Before doing so, a trial court must “carefully evaluate all available options on the record and conclude that the sanction of dismissal is just and proper” … The failure to do so constitutes an abuse of discretion.”
Dismissal As A Sanction
The Michigan Appellate Court stated there are seven factors that a trial court should consider before dismissal is used as a sanction: 1) whether the violation was wilful or accidental; (2) the party’s history of refusing to comply with previous court orders; (3) the prejudice to the opposing party; (4) whether there exists a history of deliberate delay; (5) the degree of compliance with other parts of the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction would better serve the interests of justice.
The Michigan Appellate Court stated, “there is no indication in the record or in the trial court’s order that it considered other alternatives to dismissal or that it evaluated the Vicencio factors,” holding: “it is clear that dismissal was not appropriate. First, there is no indication that the violation was willful; in fact, plaintiff’s counsel later explained that it was due to a scheduling failure. Second, there was no history of plaintiff failing to comply with previous court orders because, other than the failure to appear or respond, the record gives no indication that plaintiff violated any other orders. Third, there was little prejudice to defendants; the show-cause issue related to notice and serving the non-expired summonses. Defendants have since received notice of the proceedings and accordingly suffered no further prejudice. Fourth, there is no indication from the record that plaintiff had a history of deliberate delay. Fifth, plaintiff was denied the requested opportunity to comply with the court order after learning of the scheduling error. Sixth, plaintiff took steps to cure the defect. Plaintiff’s counsel called the trial court on the same day the dismissal was entered and offered to appear by noon, which was within a few hours of the originally scheduled hearing at 8:30 a.m. Seventh, a lesser sanction would better serve the interests of justice. Dismissal is a harsh and drastic sanction for the failure to appear at a single hearing, particularly under the facts of this case given that several days remained in the life of the summons and the case would have been subject to dismissal without prejudice if service was not accomplished in that remaining time. Therefore, the trial court abused its discretion when it dismissed plaintiff’s first action against defendants.”
Source Gilbert Stanow v William Beaumont Hospital, Nos. 346641; 347275.
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