Opinion

O'TOOLE v. Fortino

  • 97 Mich. App. 797
  • 295 N.W.2d 867
  • 1980 Mich. App. LEXIS 2715
Court
Michigan Court of Appeals
Filed
Jun 3, 1980
Status
Published
Author
Kelly
On the bench
Gillis, Allen, Kelly
Cited by
20 cases
Authority
More cited than 9.7%

The opinion

M. J. Kelly, J.

(dissenting). I would affirm the trial court’s grant of summary judgments in favor of all defendants. Plaintiff’s fourth amended complaint is so contradictory and nonspecific with regard to the elements of duty, breach and causation as to render it useless for purposes of informing defendants of the charges against them. See GCR 1963, 111.1. He has set his shot pattern so wide as to miss the target entirely. He has failed to plead any specifics with regard to an accepted method of treatment of breast cancer patients as required by Simonelli v Cassidy, 336 Mich 635 ; 59 NW2d 28 (1953), and Haase v DePree, 3 Mich App 337, 341 ; 142 NW2d 486 (1966).

Paragraphs 80 and 81 of the complaint, each consisting of several subparagraphs, delineate duties allegedly owed to the deceased by defendant Fortino, but there is a notable absence of specific allegations as to the existence or manner of breach of these duties. The majority of the preceding paragraphs consist of factual statements regarding the history, diagnosis and treatment of the patient without any indication that the acts or omissions were negligent.

Furthermore, the complaint is devoid of specific averments pertaining to defendants Williams or Schmidt. Paragraph 82 sets forth over one dozen duties allegedly owed to the deceased and plaintiff by all three physicians even though each is involved in a distinct field of medical practice and each was responsible, therefore, for separate and distinct aspects of the patient’s care. There is absolutely no indication of what the surgeon or *813 oncologist, in their individual capacities, negligently did or failed to do during the course of treatment of the patient.

This same paragraph (82) is replete with inconsistencies which effectively nullify the existence of claimed duties. According to subparagraph (i), all three physicians were obligated to "plan, coordinate and implement a program that would minimize the injuries Genevieve suffered as a result of surgery, chemotherapy and radiation treatments”. This clearly suggests that at least Dr. Schmidt, the surgeon, and Dr. Williams, the oncologist, were obligated to mutually and simultaneously fashion an effective treatment program; yet, according to subparagraph (j) these same doctors were duty bound to refrain from communicating with each other until their respective duties were performed. As mentioned above, these "respective duties” were not set forth respectively.

Paragraphs 85 and 88 of the complaint, quoted in the majority opinion, purport to demonstrate the causal relationship between defendants’ conduct and the decedent’s pain, suffering and death by nothing more than an unsupported accusation. How, for example, was the failure of any or all named defendants to examine the patient’s left breast causally related to her death by pneumonia? Mere conclusions, without factual allegations to support them, cannot withstand a motion for summary judgment. Valentine v Michigan Bell Telephone Co, 388 Mich 19, 30 ; 199 NW2d 182 (1972), Sottile v DeNike, 20 Mich App 468, 472 ; 174 NW2d 148 (1969).

In addition to the above-mentioned defects, plaintiffs complaint failed to illustrate the manner in which any single defendant’s conduct was contrary to or at variance with the generally recog *814 nized and accepted standard of care applicable to each special area of practice represented. See Haase v DePree, supra. I disagree with the majority’s conclusion that, by listing certain jointly owed duties and a breach of "any” of them, plaintiffs satisfied this pleading requirement.

Due to plaintiffs failure to comply with GCR 1963, 111.1 and 117.2(1), summary judgments were properly granted and should not be disturbed by this Court.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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