Medical malpractice; Vicarious liability; Cox v Board of Hosp Managers for City of Flint; Amendment of pleadings; MCR 2.116(I)(5); Weymers v Khera; Affidavit of merit; Relation back; MCR 2.118(D); Legion-London v Surgical Inst of MI Ambulatory Surgery Ctr, LLC

The court held that the trial court properly granted summary disposition on plaintiff’s original complaint, but abused its discretion by denying leave to amend the complaint and affidavit of merit on futility grounds. Plaintiff, as personal representative of the decedent’s estate, sued defendants-ACH and Dr. Parker after the decedent died in jail from pneumonia and the flu, alleging malpractice and negligence. Defendants moved for summary disposition because Dr. Parker was out of town during the relevant period and had no involvement in the decedent’s care. The trial court agreed, dismissed the claims, and denied plaintiff’s request to amend the complaint and affidavit of merit to pursue a theory of nursing malpractice against ACH. On appeal, the court held that the original complaint did not state a nursing-malpractice claim because it alleged no specific facts showing how the nurses’ conduct was negligent and instead indicated that the case was based on Dr. Parker’s alleged malpractice. The court next held, however, that amendment was not futile. It explained that a medical provider may be “‘vicariously liable for the negligence of its agents,’” so plaintiff did not need to sue the nurses individually in order to pursue ACH on a nursing-malpractice theory. The court also held that plaintiff could seek to amend the affidavit of merit with one signed by a nursing expert, and that such an amended affidavit could relate back under MCR 2.118(D). Because the trial court denied amendment on erroneous legal grounds, the court vacated that ruling and remanded for reconsideration, leaving defendants free to argue prejudice, delay, bad faith, or other proper grounds against amendment.