The State of Michigan Court of Appeals (“Michigan Appellate Court”) held in its unpublished opinion dated August 18, 2021: “Plaintiff’s liability theories regarding Passera’s decision to extract the tooth on August 8, 1992, the decision to perform the extraction himself rather than have it done by an oral surgeon, and the decision not to prescribe antibiotics, all involved issues of medical judgment outside of the common knowledge and experience of the ordinary layperson and, therefore, required expert testimony.”
The Underlying Facts
Plaintiff filed his complaint against defendants Passera and Family Dental Center on August 8, 1994. After obtaining a second summons, the complaint and summons were served on defendant Family Dental Center by registered mail on November 2, 1994, with receipt of service occurring the following day. No answer to the complaint was ever filed by defendant Family Dental Center and no attorney appeared on its behalf. The attorney who appeared on behalf of Passera was very careful to consistently indicate that he was appearing only on behalf of Passera. The trial court granted a motion for a directed verdict as to Passera on May 21, 1996, at the conclusion of plaintiff’s proofs. Plaintiff then waited until November 1, 1996, to request that a default judgment be entered as to defendant Family Dental Center. In his brief in support of his application for default judgment, plaintiff admitted that the “Family Dental Center was a separate business entity owned by Norman Weiss.” Plaintiff claimed that service of process was proper under MCR 2.105(B)(4) and MCR 2.105(D) “whether Family Dental Center is viewed as a corporation or an assumed name for an individual.””
The Michigan Appellate Court stated: “Because defendant Passera was a general practitioner at the time of the alleged malpractice in August 1992, plaintiff was required to prove that he failed to act in accordance with the recognized standard of acceptable professional practice in the community in which he practiced or in a similar community. MCL 600.2912a(1)(a); MSA 27A.2912(1)(1)(a). Expert testimony is ordinarily required to establish the standard or care and to show that it was breached … In particular, if the standard of conduct issue raises a question involving medical judgment, expert testimony is needed to establish the standard … Expert testimony is not necessary, however, if “the lack of professional care is so manifest that it would be within the knowledge and experience of the ordinary layman that the conduct was careless and not conformable to the standards of professional practice and care employed in the community.””
The Michigan Appellate Court further stated: “MCR 2.105(D) details the requirements for properly serving a corporation; however, because defendant asserts, and plaintiff acknowledges, that Family Dental Center is not a corporation, MCR 2.105(D) is inapplicable. MCR 2.105(B)(4) details the requirements for properly serving an individual doing business under an assumed name. The court rule provides that service may be accomplished by: (a) serving a summons and copy of the complaint on the person in charge of an office or business establishment of the individual, and (b) sending a summons and a copy of the complaint by registered mail addressed to the individual at his or her usual residence or last known address. Plaintiff did not comply with either of these provisions and therefore did not properly serve Family Dental Center (or its alter ego, Dr. Norman Weiss). Thus, it appears that the trial court never had jurisdiction over Family Dental Center. Likewise, plaintiff could not take the default of a defendant that he failed to properly serve. MCR 2.504(E) provides that an action may be dismissed under MCR 2.102(E) for failure to serve a defendant. We therefore conclude that the trial court properly dismissed the case against defendant Family Dental Center, albeit for the wrong reason.”
“We further note that the trial court’s grant of the directed verdict as to defendant Passera was based on plaintiff’s failure to establish the applicable standard of care. Plaintiff’s claim of liability as to defendant Family Dental Center was based on a theory of vicarious liability. However, where a defendant cannot establish liability against the agent, he likewise cannot establish vicarious liability against the principal … Therefore, even if this case were reinstated, it would be subject to dismissal on a motion for summary disposition under MCR 2.116(C)(8).”
Source Copeland v. Family Dental Center, No. 212862.
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