Lyons v. Brodsky

Per Curiam. Plaintiff appeals as of right from a grant of summary judgment in favor of both defendants. — 306 — Plaintiff brought a complaint for damages against both defendants (both licensed podiatrists), alleging malpractice. In her complaint, she stated: "4. That on February 28, 1979, your plaintiff became a patient of Drs. Sherman and Brodsky, for the purpose of receiving care and treatment relative to a foot complaint. "5. That in March, 1979, and April, 1979, defendants, Robert Brodsky and Errol Sherman performed surgery on the plaintiff and treated said plaintiff until August, 1979. "7. That in rendering care and treatment to your plaintiff, the said defendants had a duty to exercise that reasonable degree of skill and care ordinarily exercised and possessed by similar practitioners of the same or similar localities. "8. That defendants Brodsky and Sherman breached their duty to your plaintiff in that they failed to exercise the degree and skill, learning, knowledge and diligence as hereinbefore set forth, and failed to observe the applicable standard of practice required of a specialist in the field of podiatry in the following manner: "(a) Failed to properly diagnose the cause of your plaintiff’s foot complaint; "(b) Performed sürgery on your plaintiff on a number of occasions both in the office of the individual defendants Brodsky and Sherman and in the hospital wherein all other defendants were associated, said surgery being unwarranted and unnecessary for plaintiff’s condition; "(c) That the aforementioned surgery was rendered in a careless and negligent manner; "(d) That certain of the surgical procedures aforementioned were contrary to the statutes of the State of Michigan and were outside the scope of the practice of podiatry. "(e) That defendants failed to treat in accordance with the standards of similar physicians and surgeons. "10. That all of the above defendants concealed the — 307 — plaintiff’s true medical condition from her, so that she would not be aware of her cause of action against them. "11. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has endured in the past, and yet endures at present, as well as the future, great and agonizing pain in her feet, lacks the ability to properly balance herself, and lacks the ability to walk normally. "12. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has expended sums of money for medical treatment, pharmaceuticals, and prosthetic appliances in the past, and will require the expenditures of monies in the future for additional medical treatment, pharmaceuticals and prosthetic appliances. "13. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has suffered disfigurement and scarring of her feet which will require corrective and cosmetic surgery in the future. "14. That as a direct and proximate result of the negligent acts and omissions of the individual defendants herein, your plaintiff has suffered a loss of earnings in the past, find has further suffered a loss of earning capacity. "15. That the injuries to your plaintiff are permanent in nature, and will result in future arthritic deterioration to various parts of her body.” Defendants each moved for summary judgment, claiming that plaintiffs complaint of malpractice was insufficiently specific. In their claims, they relied on the rule that medical malpractice must be pled more specifically than other types of negligence. See Simonelli v Cassidy, 336 Mich 635, 644; 59 NW2d 28 (1953). Plaintiff moved to amend her complaint to make it more specific, and leave was given. Her amended complaint did not, however, make any substantial changes in, or additions to, — 308 — the allegations we have cited above. After more oral argument, the trial judge granted defendants’ motions. We conclude that he did not err by doing so. In Simonelli v Cassidy, supra, the Supreme Court delineated the requirements of a complaint alleging medical malpractice by citing the following passage from 70 CJS, § 61, p 985: "In an action for damages occasioned by the negligence or malpractice of a physician or surgeon, every fact necessary to constitute a cause of action must be alleged in the declaration, complaint, or petition, and, moreover, such facts must be alleged with reasonable definiteness and certainty, although it is not necessary to couch the declaration in the technical language of the medical profession. Thus, it is essential to allege, with reasonable definiteness and certainty, the duty of the physician or surgeon to the person injured, the breach of duty complained of, the causal relation between the breach of duty and the injuries complained of, and resulting damage.” At the time of its decision, a complaint was required to "contain such specific allegations as will reasonably inform the defendant of the nature of the cause he is called upon to defend”. Simonelli, supra, p 642. This is essentially the same rule of pleading which we must apply to the present case. See GCR 1963, 111.1(1). In the present case, plaintiff’s complaint omits information reasonably necessary to inform the defendants of the nature of her claim. Although the complaint states that plaintiff sought care for a "foot complaint”, it is too vague to inform defendants of the specific duty alleged to be breached. The complaint alleges that both defendants performed surgery in March and April of 1979. Although it appears that plaintiff is claiming that — 309 — surgery was performed more than once, it is not clear how many times it was performed. A sufficiently specific complaint should allege the dates of surgery, unless some adequate excuse is given for not knowing the dates. The complaint alleges a failure to diagnose properly the cause of the "foot complaint”, but still does not inform the defendants of what plaintiff now believes to have been the problem with her foot. Plaintiff alleges that defendants performed unwarranted and unnecessary surgery on her foot on a number of occasions. She does not identify on which occasions surgery was unwarranted and does not claim that it was unwarranted in all cases. She also claims that the unwarranted and unnecessary surgery was "rendered in a careless and negligent manner”. Her claim of negligent surgery is coextensive with her claim of unwarranted surgery and is subject to the same objection. The type or time of surgery is insufficiently identified to inform defendants of the surgical procedures to which plaintiff objects. Finally, she claims that some of the unwarranted surgery that was performed in a negligent manner was also outside the scope of practice of podiatry. Again, she does not identify which procedures she is alleging as malpractice. She also claims that defendants "failed to treat in accordance with the standards of similar physicians and surgeons”. The condition to be treated, the standard of care and the manner of breaching that standard are not, however, identified. We conclude, as did the trial judge, that the complaint was insufficient to meet even the liberal pleading standards under the court rules; compare the complaint in this case with that found to be sufficient in O’Toole v Fortino, 97 Mich App 797, 803-808; 295 NW2d 867 (1980). — 310 — Plaintiff claims that defendants were limited to moving for a more definite statement, GCR 1963, 115.1, as the only route to challenge the vagueness of plaintiffs complaint. The court rule states that the answering party may move for a more definite statement before filing his responsive pleading "if a pleading is so vague or ambiguous that it fails to comply with the requirements of the rules”. If the motion is granted and is not obeyed within ten days after notice of the order or within such other time as the court may fix, the court may strike the pleading to which the motion was directed or make such other order as it deems just. While we agree that summary judgment should not be granted on a vague complaint without affording an opportunity to amend and cure the vagueness, we conclude that the procedure followed in this case was not improper. The trial judge allowed plaintiff to amend her complaint to add the specific allegations required to state a cause of action in malpractice. Despite the opportunity, plaintiffs amended complaint cured none of the problems of the earlier complaint. It merely added as a second count a charge of fraudulent concealment. This was the effective equivalent of declining the opportunity to make a more definite statement. Under these circumstances, we believe the judge had the discretion to grant the requested summary judgment. Affirmed.