Lead Opinion
In these consolidated cases, plaintiff appeals as of right an order of the circuit court dismissing her medical malpractice claim (Docket No. 214284) and appeals by delayed leave granted an order awarding mediation sanctions against plaintiff (Docket No. 218386). We affirm the trial court’s grant of summary disposition and reverse the award of mediation sanctions.
i
Plaintiff filed this medical malpractice action against defendants
Following the second transplant in August 1991, James developed symptoms of a respiratory infection and was admitted to defendant on February 7, 1992. Defendant provided a course of diagnosis and treatment over the next two months, and James was subsequently discharged and readmitted to defendant twice during this time. Following readmission on March 26, 1992, James’ diagnosis indicated the presence of pseudomonas bacteremia, but ruled out sep
Plaintiff brought this medical malpractice action alleging that defendant was negligent in diagnosing James’ problem as recurrent leukemia rather than a respiratory infection and in failing to provide a proper course of treatment. Specifically, plaintiff claimed that defendant violated the standard of care by failing to perform a bronchoscopy or an open lung biopsy to identify the source of James’ respiratory problems and by failing to recognize that aggressive antibiotic therapy was warranted. In the affidavit of meritorious claim filed by plaintiff, plaintiff’s expert witness, Michael E. Trigg, M.D., stated that “had the standard of care been followed, James Dykes would [have] had a greater then [sic] 50% chance of surviving the infectious process from which he suffered . . . .”
Following Dr. Trigg’s deposition,
Following the dismissal, defendant moved for the taxation of costs against plaintiff as mediation sanctions under MCR 2.403(O)(1). The court granted the motion and awarded defendant $48,271.45.
II
In Docket No. 214284, plaintiff appeals the order of summary disposition. We affirm. This Court reviews de novo an order granting summary disposition. Spiek v Dep’t of Transportation,
A
To prove medical malpractice, a plaintiff must show that the defendant’s negligence proximately
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%. [MCL 600.2912a(2).]
Thus, to recover for the loss of an opportunity to survive or an opportunity to achieve a better result, a plaintiff must show that had the defendant not been negligent, there was a greater than fifty percent chance of survival or of a better result. Wickens v Oakwood Healthcare System,
Plaintiffs malpractice claim was premised on the theory that had defendant not been negligent, James more probably than not would have survived his infection, as Dr. Trigg stated in his affidavit:
Within a reasonable medical probability had the standard of care been followed, James Dykes would [have] had a greater then [sic] 50% chance of surviving the infectious process from which he suffered; thus, the violation from [sic] the standard of care is a proximate cause of the damages claimed by Plaintiff.
In his deposition testimony, however, Dr. Trigg contradicted his affidavit. Defense counsel queried Dr.
Q. [I]s it a fair statement to say that neither you nor I, as we sit here today, know what, if anything, a bronchoscopy would have revealed during [the February 7 to February 9, 1992 hospitalization]?
A. That’s a fair statement.
Q. And is it also fair to say that because we don’t know that, neither you nor I, or [sic] anyone can say within a reasonable degree of medical certainty that a bronchoscopy during that February 7 through 9, 1992 hospitalization would have made any difference in James Dykes’ outcome and prolonged his life?
A. That’s a fair statement.
Q. [I]s it fair to say that as we sit here today, neither you nor I can conclude, or [sic] anyone else, what a bronchos-copy and or an open lung biopsy would have revealed during the February 12 hospitalization within a reasonable degree of medical certainty? Is that a fair statement?
A. My clinical judgement [sic] and assessment is it would have revealed a bacterial problem. I think that it would have been very useful, but I can’t know that for certain.
We conclude that the trial court properly granted summary disposition because the deposition testimony of plaintiff’s sole expert witness failed to establish the requisite causal link between defendant’s conduct and James’ life expectancy or death. Dr. Trigg’s deposition testimony directly contradicted his affida
Further, in light of Dr. Trigg’s deposition testimony, plaintiff may not rely on Dr. Trigg’s affidavit to establish the existence of a genuine issue of material fact. Mitan v Neiman Marcus,
This Court has held that “ ‘parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition.’ ” Mitan, supra at 683, quoting Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 256-257;
“As a result of his own deposition testimony, plaintiff’s ability to present a case was challenged. His affidavit merely restated his pleadings. Deposition testimony damaging to a party’s case will not always result in summary judgment. However, when a party makes statements of fact in a ‘clear, intelligent, unequivocal’ manner, they should be considered as conclusively binding against him in the absence of any explanation or modification, or of a showing of mistake or improvidence. The purpose of GCR 1963, 117 [now part of MCR 2.116] is to allow the trial judge to determine*481 whether a factual issue exists. This purpose is not well served by allowing parties to create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition. As was stated in Perma Research and Development Co v The Singer Co, (CA 2, 1969), 410 F2d 572, 578:
“ ‘If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’ ” [Barlow, supra at 250, quoting Gamet, supra at 726 (citations omitted).]
See also Downer, supra at 233-234; Peterfish v Frantz,
The cited cases involved the filing of an affidavit after damaging deposition testimony had been given, whereas in the instant case, the affidavit of merit was filed with plaintiff’s complaint before deposition testimony was taken. We believe that this is not a meaningful distinction and the same rationale applies. Dr. Trigg’s affidavit of meritorious claim restated the pleadings and generally articulated the threshold of proof that defendant’s breach of the standard of care
Accordingly, we affirm the trial court’s grant of summary disposition because plaintiff failed to show the existence of a genuine issue of material fact with regard to the question of causation.
m
In Docket No. 218386, plaintiff appeals the award of costs under MCR 2.403(O)(1). Plaintiff contends that the court erred in awarding costs on the basis of her limited acceptance of the mediation award, MCR 2.403(L)(3). We agree.
A
The interpretation and application of court rules presents a question of law that is reviewed de novo. Grzesick v Cepela,
If a party makes a limited acceptance under subrule (b)(3)(b) and some of the opposing parties accept and others reject, for the purposes of the cost provisions of sub-rule (0) the party who made the limited acceptance is deemed to have rejected as to those opposing parties who accept
In this case, the mediation evaluation awarded zero against Dr. Main and $75,000 against defendant. Plaintiff accepted the mediation evaluation as a limited acceptance under MCR 2.403(L)(3)(b)(i), conditioned on the acceptance of both Dr. Main and defendant. Dr. Main accepted the mediation evaluation, and defendant rejected it. We conclude that plaintiffs limited acceptance of the award does not constitute a rejection with respect to defendant because defendant did not accept the mediation evaluation.
The Supreme Court previously reversed a decision of this Court that affirmed mediation sanctions with regard to a limited acceptance, stating:
Under MCR 2.403(L)(3)(c), for the purposes of the costs provision of subrule (O), National Precast’s limited acceptance is not deemed a rejection with regard to plaintiffs because plaintiffs did not accept the mediation panel’s evaluation. [Baldasan v Nat’l Precast, Inc,451 Mich 894 ;550 NW2d 525 (1996).]
An order that is a final Supreme Court disposition of an application and that contains a concise statement of the applicable facts and reasons for the decision is binding precedent. See People v Crall,
Even without the guidance of this precedent, we reach the same conclusion given the language and puipose of MCR 2.403. This Court should construe a court rale in accordance with the ordinary and approved usage of its language in light of the purpose the rule seeks to accomplish. Bush v Mobil Oil Corp,
MCR 2.403(L)(3)(c) specifies that “the party who made the limited acceptance is deemed to have rejected as to those opposing parties who accept” (emphasis added). This part of the court rale would be rendered nugatory, contrary to the rules of construction, if the limited acceptance party was also deemed a rejecting party with respect to opposing parties who reject. Further, the purpose of the mediation sanction rule “is to encourage settlement and deter protracted litigation by placing the burden of litigation costs upon the party that required that the case proceed toward trial by rejecting the mediator’s evaluation.” Broadway Coney Island, Inc v Commercial Union Ins Cos (Amended Opinion),
Accordingly, because plaintiffs conditional acceptance was not a rejection with respect to defendant, defendant was not entitled to mediation sanctions under MCR 2.403(O)(1). Therefore, the trial court erred in awarding defendant mediation sanctions.
B
In light of our determination that the circuit court erred in awarding mediation sanctions, we need not address plaintiff’s remaining claims concerning the amount awarded and the form of the order.
Affirmed in part and reversed in part.
Notes
Defendant Charles Main, M.D., was dismissed from the action by stipulation of the parties and is not involved in this appeal.
The transplants were performed in Seattle, Washington. Upon release, James returned to defendant for aftercare treatment.
Sepsis is defined as “the presence in the blood or other tissues of pathogenic microorganisms or their toxins.” Dorland’s Illustrated Medical Dictionary (29th ed), pp 1623-1624.
Septicemia, also called blood poisoning, is defined as a “systemic disease associated with the presence and persistence of pathogenic microorganisms or their toxins in the blood.” Dorland’s Illustrated Medical Dictionary, (29th ed), p 1624. Plaintiff’s brief describes pseudomonas septicemia as a severe bacterial infection.
During oral argument of this appeal, there was some question whether Dr. Trigg’s deposition was taken for discovery purposes or de bene esse to preserve his testimony. The deposition transcript unequivocally reflects that it was a discovery deposition.
Our dissenting colleague characterizes defense counsel’s questions as eliciting a response in terms of absolute certainties, “i.e., a one-hundred percent probability,” and interprets Dr. Trigg’s responses as “a reluctance to state his conclusions in terms of absolute certainties,” post at 486. We note that defense counsel’s questions did not seek answers from Dr. Trigg in terms of absolute certainty. Rather, he was asked if he could state within a reasonable degree of medical certainty whether defendant’s failure to properly diagnose and treat James affected the outcome or James’ life expectancy. Dr. Trigg was unable to do so.
In her response to defendant’s motion for summary disposition, plaintiff relied on Dr. Trigg’s testimony that, in his opinion, James’ infectious process was more likely than not bacterial in nature. This question of probabilities is not the relevant inquiry. In order to show a genuine issue of material fact regarding causation, plaintiff must offer evidence that it is more likely than not that, but for defendant’s conduct, a different result would have obtained. Weymers, supra at 647-648.
Concurrence Opinion
(concurring in part and dissenting in part). I respectfully dissent from the majority’s decision to affirm the trial court’s grant of summary disposition for defendant.
I
As noted by the majority, plaintiff’s malpractice claim was premised on the theory that had defendant not been negligent, James more probably than not would have survived his infection, as Dr. Trigg stated in his affidavit:
Within a reasonable medical probability had the standard of care been followed, James Dykes would [have] had a greater then [sic] 50% chance of surviving the infectious process from which he suffered; thus, the violation from the standard of care is a proximate cause of the damages claimed by Plaintiff.
During Dr. Trigg’s deposition, he responded to defense counsel’s specific questions, none of which addressed whether it was “more probable than not” that James would have survived his infection absent defendant’s alleged negligence. Counsel queried Dr. Trigg whether there was any way of “knowing” whether, “if [James] had received anti-pseudomonas medication during the February 12 hospitalization, that he would have lived longer than April 2, 1992.” Dr. Trigg responded that there was “no way of knowing that.” I cannot conclude that this testimony defeats causation. The standard for causation in this instance is whether it is more likely than not that James would have survived the infectious process, i.e., a greater than fifty percent chance, not whether he definitively would have lived beyond a certain date, i.e., a one-hundred percent probability. For the same reason, I do not find the fact that Dr. Trigg
Defense counsel queried Dr. Trigg analogously with regard to defendant’s failure to perform a bronchos-copy or an open lung biopsy:
Q. [I]s it a fair statement to say that neither you nor I, as we sit here today, know what, if anything, a bronchoscopy would have revealed during that time [the February 7 to February 9, 1992 hospitalization]?
A. That’s a fair statement.
Q. And is it also fair to say that because we don’t know that, neither you nor I, or anyone can say within a reasonable degree of medical certainty that a bronchoscopy during that February 7 through 9, 1992 hospitalization would have made any difference in James Dykes’ outcome and prolonged his life?
A. That’s a fair statement.
Q. [I]s it fair to say that as we sit here today, neither you nor I can conclude, or anyone else, what a bronchoscopy and or an open lung biopsy would have revealed during the February 12 hospitalization within a reasonable degree of medical certainty? Is that a fair statement?
A. My clinical judgement and assessment is it would have revealed a bacterial problem. I think that it would have been very useful, but I can’t know that for certain.[1 ]
Finally, I cannot conclude that Dr. Trigg’s testimony with regard to pseudomonas sepsis, in particular, defeats causation in this case.
n
I fully concur in the reasoning and result reached by the majority with regard to the award of costs to defendant under MCR 2.403(L)(3).
Dr. Trigg’s response to counsel’s next question further convinces me that his answer to the previous question was an expression of his reluctance to state an absolute certainty, rather than an inability to provide the vital link of causation:
Q: Do you have any idea what bacteria it would have identified?
A: No. Except that there was a sputum culture obtained in early February which showed on gram stain numerous gram-negative bacilli and neutrophils. And there was a dermatology consultation which suggested a pseudomonas-like rash during this hospitalization. So it certainly was within the differential that a pseudomonas infection could be found.
Dr. Trigg stated: “I think that patients who have compromised immune systems that are [sic] following a bone marrow transplant who develop a pseudomonas sepsis have a greater-than-fifty-percent chance of dying of their infection, but it’s not a hundred percent chance.”