Barnett v. Hidalgo
unreported (2007)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
In a medical malpractice action, an affidavit of merit filed with the complaint is admissible as substantive evidence under the party-opponent admission exception to the hearsay rule and may be used to impeach the plaintiff's expert witnesses if their trial testimony is inconsistent with the affidavit.
Facts:
- James Otha Barnett, III, underwent gall bladder surgery performed by Dr. Renato Albaran at Crittenton Hospital.
- Post-surgery, Albaran noted Barnett's low blood-platelet count and consulted with Dr. Muskesh Shah, a hematologist.
- Shah diagnosed Barnett with a preexisting platelet disorder (ITP) rather than a more serious postsurgical complication and cleared him for discharge.
- Two days after being discharged, Barnett returned to the hospital with disorientation.
- Dr. Cesar Hidalgo, a neurologist, consulted on Barnett's case and initially diagnosed a stroke.
- Barnett died before further testing could be performed; an autopsy revealed he had suffered from thrombotic thrombocytopenic purpura (TTP), a rare and fatal clotting disorder that went untreated.
- Wapeka Barnett, the decedent's wife, obtained affidavits of merit from three medical experts which opined on the breaches of the standard of care by Drs. Albaran, Hidalgo, and Shah.
- Before trial, plaintiff Wapeka Barnett settled her claims against Dr. Shah and Crittenton Hospital.
Procedural Posture:
- Wapeka Barnett sued Drs. Albaran, Hidalgo, Shah, and Crittenton Hospital in a Michigan state trial court for medical malpractice.
- The trial court granted defendants' motion to admit plaintiff's affidavits of merit as substantive and impeachment evidence.
- A jury in the trial court found in favor of the remaining defendants, Albaran and Hidalgo.
- Barnett's motion for a new trial was denied by the trial court.
- Barnett, as appellant, appealed to the Michigan Court of Appeals.
- The Court of Appeals reversed the trial court's judgment and remanded for a new trial, holding that the admission of the affidavits and a settling defendant's deposition constituted error.
- Defendants Albaran and Hidalgo, as appellants, were granted leave to appeal to the Supreme Court of Michigan.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
In a medical malpractice action, is an affidavit of merit, including its reference to a defendant who has since settled, admissible as substantive evidence against the plaintiff and for impeaching the plaintiff's expert witnesses?
Opinions:
Majority - Markman, J.
Yes. In a medical malpractice action, an affidavit of merit is admissible as substantive evidence and for impeachment. Affidavits of merit are not hearsay because they qualify as admissions by a party-opponent under Michigan Rules of Evidence (MRE) 801(d)(2)(B) and (C). By filing the affidavit to support the complaint, the plaintiff manifests an adoption or belief in its truth (adoptive admission), and the expert is a person authorized by the plaintiff to make a statement concerning the subject (authorized admission). Furthermore, if the expert's testimony at trial differs from the affidavit, the affidavit is admissible as a prior inconsistent statement for impeachment purposes under MRE 613. Regarding references to a settled defendant, Michigan's tort reform statutes (MCL 600.2957 and MCL 600.6304) require the trier of fact to allocate fault among all persons who contributed to the injury, regardless of whether they are parties to the action. Therefore, evidence concerning a nonparty's involvement is permissible to allow the jury to properly assess fault, even if that nonparty has settled.
Dissenting - Kelly, J.
No. Admitting the unredacted affidavits of merit that referenced a dismissed defendant was not harmless error. The jury was presented with affidavits naming Dr. Shah as a defendant but was also aware he was not a party at trial, leading to the clear inference that he had been dismissed. Citing the rationale in Clery v Sherwood, this creates an unacceptable risk of prejudicial speculation by the jury regarding the reason for the dismissal. The jury could have improperly concluded that Shah settled because he was at fault, or conversely that he was dismissed because he was not at fault, either of which is speculative and undermines a fair verdict. Because the potential for prejudice is so great, the error cannot be considered harmless, and a new trial is warranted.
Analysis:
This decision solidifies the evidentiary significance of affidavits of merit in Michigan medical malpractice litigation, elevating them from a mere procedural prerequisite to a potential piece of substantive evidence. It holds plaintiffs accountable for the initial theories of liability advanced by their experts, limiting their ability to strategically shift blame after a key defendant settles. The ruling also reinforces the principles of Michigan's tort reform, which prioritize the allocation of fault among all potential tortfeasors, thereby allowing defendants to present evidence about the role of nonparties, including those who have settled.
Unlock the full brief for Barnett v. Hidalgo