September 3, 2020

The State of Michigan Court of Appeals (“Michigan Appellate Court”) held in its unpublished opinion dated July 23, 2020 that the plaintiff’s battery and negligent supervision claims regarding the allegedly unauthorized removal of her ovary during surgery were sounded in medical malpractice and were subject to the relevant statute of limitations for medical malpractice claims.

The plaintiff alleged that she expressly stated that she did not want to have either of her ovaries removed, and she did not consent to their removal unless absolutely necessary. According to the plaintiff, the defendant, Dr. Marras, assured her that neither ovary would be removed unless necessary. Defendant Marras then performed a salpingo-oophorectomy on the right side of the plaintiff’s body (i.e., removed the plaintiff’s right ovary). The plaintiff alleged that this was done notwithstanding the fact that there was no need or reason to do so. The plaintiff’s pelvic pain was not resolved by the surgery.

In Michigan, “determining whether a claim sounds in medical malpractice [involves]: “(1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience.” If both prongs are met, “the action is subject to the procedural and substantive requirements that govern medical malpractice actions.”

The Michigan Appellate Court stated that the Michigan medical malpractice plaintiff did not forbid the removal of her ovaries altogether, in which case no medical judgment whatsoever would have been necessary to find their removal contrary to plaintiff’s consent. The plaintiff’s complaint asserts only that she agreed to the removal of her ovaries if “absolutely necessary.” Determining medical “necessity” for some part of an otherwise consented-to medical procedure, or whether a “normal-appearing” but “slightly atrophic” organ actually is “healthy,” simply cannot be determined by a layperson without the assistance of expert medical testimony. The touchstone is “whether the claim raises questions of medical judgment.” Further, the operative report demonstrated that a medical judgment – whether right or wrong – was made: “[t]he decision was made to do a right salpingo-oophorectomy as the patient had been complaining of adnexal pain . . . ”

The Michigan Appellate Court further stated, “plaintiff’s negligent supervision claim would necessarily entail expert testimony on proper methods of training physicians for treating patients with plaintiff’s demonstrated pelvic pain, the appropriate method of evaluation for whether an ovary is healthy, and the standard procedure for assessing and appropriately disciplining physicians who allegedly engage in malpractice. Thus, the claim implicates medical judgment and sounds in medical malpractice.”

The Michigan Appellate Court therefore held: “The trial court did not err in granting defendants’ motion for summary disposition of plaintiff’s complaint in its entirety.”

Source Price v. Marras, M.D., No. 349162.

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