Order                                                                          Michigan Supreme Court
                                                                                     Lansing, Michigan

  December 10, 2010                                                                          Marilyn Kelly,
                                                                                                 Chief Justice

  138636                                                                              Michael F. Cavanagh
                                                                                        Maura D. Corrigan
                                                                                       Robert P. Young, Jr.
                                                                                       Stephen J. Markman
  SHERRI MARTIN,                                                                       Diane M. Hathaway
           Plaintiff-Appellant,                                                       Alton Thomas Davis,
                                                                                                      Justices
  v                                                        SC: 138636
                                                           COA: 280267
                                                           Emmet CC: 05-009021-NH
  DAVID LEDINGHAM, M.D., DAVID
  RYNBRANDT, M.D., ANDRIS KAZMERS,
  M.D., and PETOSKEY SURGEONS, P.C.,
              Defendants,
  and
  NORTHERN MICHIGAN HOSPITAL,
             Defendant-Appellee.
  _________________________________________/

          On October 6, 2010, the Court heard oral argument on the application for leave to
  appeal the January 27, 2009 judgment of the Court of Appeals. On order of the Court,
  the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to
  appeal, we REVERSE the judgment of the Court of Appeals, and we REMAND this case
  to the Emmet Circuit Court for entry of an order denying the defendant’s motion for
  summary disposition. Because the plaintiff’s expert witness testified at his deposition
  that, if the nurses had timely informed the treating physician of the plaintiff’s
  deteriorating condition, the standard of care would have required the treating physician to
  treat the plaintiff differently than he did, while the treating physician averred in his
  affidavit that he would not have treated the plaintiff any differently than he did even if the
  nurses had timely informed him of the plaintiff’s deteriorating condition, a question of
  material fact exists that must be resolved by a jury. That is, having presented expert
  testimony regarding the treatment that the plaintiff, pursuant to the standard of care,
  should have received in the first 72 hours post-surgery, the treating physician’s averment
  that he would have acted in a manner contrary to this standard of care presents a question
  of fact and an issue of credibility for the jury to resolve. See White v Taylor Distributing
  Co, 482 Mich 136, 141 (2008) (A question of material fact existed for the jury to decide
  because the defendant’s deposition testimony that he “felt great” before he blacked out
  was called into question by the defendant’s treating physicians’ deposition testimony that
                                                                                                               2

the “defendant’s condition would have caused ongoing symptoms such as cramps and
pain.”). We agree with the assertion in Judge GLEICHER’s concurring opinion in Ykimoff
v W.A. Foote Mem Hosp, 285 Mich App 80, 121, 124 (2009), that the Court of Appeals
“incorrectly decided Martin,” and that “plaintiff’s expert testimony called into question
the credibility of the surgeons’ affidavits by asserting that the standard of care applicable
to the affiants required swifter intervention.”




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         December 10, 2010                   _________________________________________
        1209                                                                 Clerk
