Lead Opinion
In this medical malpractice case, defendant Henry Ford Cottage Hospital appeals as of right an order of judgment for plaintiffs Olga and Antley Wiley. We affirm in part and reverse in part.
I. BASIC facts
In March 1997, plaintiff Olga Wiley,
H. DIRECTED VERDICT/JUDGMENT NOTWITHSTANDING THE VERDICT
Defendant first argues that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict (jnov). We disagree.
A. STANDARD OF REVIEW AND GENERALLY APPLICABLE LAW
This Court reviews de novo a trial court’s grant or denial of a directed verdict. Derbabian v S & C Snowplowing, Inc,
This Court reviews de novo the trial court’s decision on a motion for JNOV. Attard v Citizens Ins Co of America,
“In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal.” Wischmeyer v Schanz,
B. STANDARD OP CARE
Defendant argues that the trial court erred in denying its motions for directed verdict and jnov because plaintiff failed to establish the standard of care with expert testimony. We disagree.
The common-law standard of care applies to malpractice actions against nurses. Cox v Flint Bd of Hosp Managers,
On the basis of Rice and Biecker’s testimony, plaintiff established that the standard of care in transferring a patient, such as plaintiff, includes several factors: that the nurse assess his ability and the ability of the patient, as well as the surrounding circumstances,
C. BREACH OF THE STANDARD OF CARE
Defendant also argues that the trial court erred in denying its motions for directed verdict and JNOV because that plaintiff failed to present sufficient expert testimony to prove a breach of the standard of care. We disagree.
Expert testimony is required in medical malpractice cases to establish the applicable standard of care and to demonstrate that the defendant somehow breached that standard. Wischmeyer, supra at 484; Birmingham v Vance,
In this case, there was sufficient expert testimony to establish that it was more likely than not that defendant breached the standard of care. Although Rice testified that an injury could occur in the absence of negligence, she did not agree that this was the case here. Rice testified: “I believe the nurses did not follow the proper procedure to transfer the patient.” Rice further testified:
*495 Q. And your opinion is the nursing care was proper or improper?
A. Improper.
* * *
Q. Was there a violation of the standard of practice of nursing care as it relates to the transfer of Olga Wiley?
A. I believe there was.
* * *
Q. Do you believe that the laceration of 3-29 was caused by the negligence of the nurses in this case?
A. Yes.
This testimony, along with Rice and Biecker’s testimony about the standard of care, was sufficient to show that defendant did not comply with the standard of care. Although Rice’s other testimony may appear to contradict these statements, her credibility remains a question for the trier of fact. Zeeland Farm Services, supra at 195.
Additionally, the evidence presented at trial provides factual support for the experts’ opinions. “This Court has held that an expert’s opinion is objectionable where it is based on assumptions that are not in accord with the established facts.” Badalamenti v William Beaumont Hosp-Troy,
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence.
In this case, Shelly Ostrowsky testified that she did not assist Karen Nunn in moving plaintiff. Thus, the
D. CAUSATION
Defendant also argues that the trial court erred in denying its motions for directed verdict and jnov because plaintiff failed to prove that the laceration ultimately caused the amputation of plaintiff’s right leg. We disagree.
Proof of causation requires both cause in fact and proximate cause. Haliw v Sterling Hts,
The record contains sufficient evidence of causation to support plaintiff’s case. Stuart Hodosh, M.D., testified that the laceration was a “major contributing factor to her losing her right leg ... . It’s the first shot or the first domino effect where one starts causing a chain reaction of what transpired to the final conclusion as far as her losing her leg.” Hodosh testified quite definitely that without the laceration, plaintiff would have kept her leg.
Defendant argues that Hodosh also testified that if the laceration had been healing normally, there probably would not have been a causal relationship between the laceration and the ulcer on the calf. However, there was evidence that the laceration was not healing normally. A musing note dated April 6, 1997, reports: “Right shin steri-strips with sutures underneath with scant drainage — brownish cleansed and bacitracin applied — also right calf.” Also, a medical record indicated that plaintiff “had increased swelling, she had a temperature, the extremity felt warm, the sutures weren’t healing, it was weeping.” Samuel Park, M.D., recorded his observation on the discharge summary that there was a “nonhealing wound” at the site of the laceration. On June 6, 1997, Park also observed a wound on the right leg that was “slow to heal.” At the time of the amputation, the ulcerations appeared as one giant ulcer. The laceration was on the front of plaintiff’s leg. The note said, “irregular 8 centimeter, discolored, scaly, partially healed ulceration over anterior lower leg just below
Viewing the evidence in the light most favorable to plaintiff, the trial court did not err in denying defendant’s motion for a directed verdict based on causation because reasonable jurors could have honestly reached different conclusions. The trial court also did not err in denying the motion for JNOV because the evidence did not fail to establish a claim as a matter of law.
HI. NEW TRIAL
Defendant next argues that the trial court erred in denying its motion for a new trial. We disagree.
A. STANDARD OF REVIEW
On appeal, this Court reviews a trial court’s decision whether to grant a new trial for an abuse of discretion. Bean v Directions Unlimited, Inc,
A trial court may grant a new trial when the damage award is excessive. MCR 2.611(A)(l)(c)-(d).
B. GREAT WEIGHT OF THE EVTOENCE/REMITTITUR
Defendant contends that the trial court erred in denying its motion for new trial because the verdict was against the great weight of the evidence and excessive. We disagree.
For the reasons discussed above, the trial court did not err in denying defendant’s motion for a new trial because there was competent evidence to support the verdict. On appeal, defendant does not provide any discussion or analysis regarding the excessiveness of the verdict. An appellant may not merely announce its position or assert an error and leave it to this Court to discover and rationalize the basis for its claims, unravel or elaborate its argument, or search for authority for its position. Wilson v Taylor,
Nonetheless, we find that the jury’s verdict in this case was within the range of evidence produced at trial and does not appear to have been induced by bias or prejudice. Gerald Zelenock, M.D., testified that
Hodosh testified:
If a person has one leg amputated and the other one is still good, it makes life tremendously more easier [sic] for them.
One is they may be able to get a prosthesis to wear. The second is, even if they don’t get a prosthesis, they can still get out of bed into their wheelchair without help. They can go to the bathroom with the wheelchair. They can get from the wheelchair to the toilet, and they can get around fairly well. And that is by weight bearing on the extremity that is left and rotating on it. A lot of people have an amputation and are not dependent on anybody else.
With a double amputee, they cannot do anything as far as getting out of bed. Essentially, they have to be picked up, put in a wheelchair or picked up, taken to the bathroom or any other activity. So there is a tremendous amount of difference between having one leg and not having any leg.
Seventy-five year-old Antley Wiley testified that he and plaintiff have been married for fifty-two years. Wiley does not feel comfortable living apart from his
On the basis of this testimony, the verdict was within the range of the evidence and was not based on bias or prejudice. Therefore, the trial court did not err in denying defendant’s motion for a new trial on this basis.
C. ATTORNEY MISCONDUCT
Defendant also argues that the trial court erred in denying its motion for a new trial based on attorney misconduct. We disagree.
In Reetz v Kinsman Marine Transit Co,
When reviewing an appeal asserting improper conduct of an attorney, the appellate court should first determine whether or not the claimed error was in fact error and, if so, whether it was harmless. If the claimed error was not harmless, the court must then ask if the error was properly preserved by objection and request for instruction or motion for mistrial. If the error is so preserved, then there is a right to appellate review; if not, the court must still make one further inquiry. It must decide whether a new trial should nevertheless be ordered because what occurred may have caused the result or played too large a part and may have denied a party a fair trial. If the court cannot say that the result was not affected, then a new trial may be granted.
Furthermore, an attorney’s comments during trial warrant reversal where “they indicate a deliberate course of conduct aimed at preventing a fair and
Defendant cites several instances of alleged attorney misconduct on the part of plaintiff’s counsel. First, defendant argues that despite the trial court’s ruling that plaintiff did not plead a case of negligent charting, plaintiff’s counsel “constantly injected the negligent charting issue before the jury.” The record indicates that the trial court ruled on this issue before trial. On the fifth day of trial, the trial court stated that plaintiff “can go forward with the transfer aspects of the case, I indicated you can refer to the charting, but I thought my ruling was you can’t refer to it as negligent charting or something of that nature.” The trial court further clarified at this point in the trial that the approach “by way of the question and answer — should be omitted during the rest of the trial.”
To the extent that plaintiff’s counsel addressed the charting deficiencies in this case without discussing negligent charting per se, his conduct was not improper. Plaintiff’s counsel attempted to prove that the charting was inaccurate or entirely lacking a description of the event at issue. This was not improper because it circumstantially created a picture of the care plaintiff received. It also alerted the jury to the fact that the records did not contain pertinent information about plaintiff’s care, and that this information had to be derived from the witnesses’ testimony. This approach was also necessary because, without proof by way of records about the alleged negligent care, the jury might have thought that plain
Defendant also argues that plaintiff’s counsel made three comments during his opening statement that were not supported by the evidence. To begin with, the purpose of an opening statement is to tell the jury what the advocate will attempt to prove. A party may succeed or fail in this attempt. If a party fails to prove its case, the proper remedy is a motion for a directed verdict, for jnov, or for a new trial. As discussed above, the trial court properly denied those motions. In any event, two of the statements defendant complains of were supported by evidence. Plaintiff’s counsel commented that plaintiff indicated she was not ready to be transferred but was anyways, and that plaintiffs expert would testify that there should have been something on plaintiffs wheelchair making it sturdy. Rice testified that after reading plaintiff’s deposition testimony, she thought plaintiff was not ready to be transferred. Rice also testified that “preventative care” is important in transferring a diabetic patient. Although a third comment made by plaintiff’s counsel that “Nurse Richardson was going to ask for something called an intervention” was not supported by the evidence, defendant fails to show what prejudi
Defendant also argues that plaintiff’s counsel improperly mentioned that defense counsel was from “a very large firm,” and also questioned counsel’s relationship with his expert by asking, “Any other lawyer send cases from his firm to you?” This was not an improper question as it concerned the defense expert witness’s credibility. Defense counsel similarly questioned plaintiff’s expert regarding how many cases he has reviewed and whether those cases were for plaintiff or defense firms.
Defendant further argues that plaintiff’s counsel improperly questioned defendant’s expert Zelenock regarding how much he charged for expert review, to which Zelenock responded “I really don’t like the way you said that.” Here, the witness’s response has no bearing on the determination whether the question was improper.
Finally, defendant also complains that plaintiffs counsel improperly referred to Zelenock as “Mr. Vascular doctor guy.” “Counsel is not entitled to belittle a witness . . . .” Powell v St John Hosp,
IV. CAPS ON NONECONOMIC DAMAGES
Defendant next argues that the trial court erred in denying its request to apply the statutory cap on noneconomic damages in medical malpractice actions
A. CONSTmjTIONAUTY OF MCL 600.1483
Constitutional issues are reviewed de novo. McDougall v Schanz,
Because our constitution confers a right to trial by jury, and because the right to trial by jury in Michigan extends to a determination of damages, the damages cap in the instant case is unconstitutional. Indeed, if the trial court must automatically reduce the amount of damages assessed by the jury to conform to the statutory cap, then the jury is not “fix[ing] the amount of damages” as required by Leary [supra]. [Phillips, supra at 599-600.]
In Zdrojewski, supra, this Court based its decision, in part, on its determination that the Legislature has
The fatal flaw with this argument is that the existence of a particular cause of action, at least in many instances, is not mandated by the constitution. Many causes of action are creatures of the Legislature, and therefore the Legislature is free to abolish these causes of action. The right to a jury trial, on the other hand, is indeed mandated by the constitution, as discussed earlier. Accordingly, the Legislature is not free to abrogate this right. In other words, while the Legislature may take away what it has given, it may not take away what the constitution has given. [Phillips, supra at 600 (emphasis in original).]
With regard to the noneconomic damages cap, we agree with Judge Meter that having the jury determine the facts and the amount of damages for an injured plaintiff and then “arbitrarily reducing this amount to a prescribed statutory number renders the jury’s function purely illusory.” Id. at 601. The Michigan Constitution guarantees a plaintiff the right to a jury trial with regard to damages, and to arbitrarily reduce damages assessed by the jury without any kind of finding that the damages are unsupported by the evidence
B. ORDINARY NEGLIGENCE OR MEDICAL MALPRACTICE?
Plaintiff argues that this case involved ordinary negligence, rather than medical malpractice. We disagree.
Our Supreme Court recently set forth the test for determining whether a case involves negligence or medical malpractice in Doris v Detroit Osteopathic Hosp Corp,
The determination whether a claim will be held to the standards of proof and procedural requirements of a medical malpractice claim as opposed to an ordinary negligence claim depends on whether the facts allegedly raise issues that are within the common knowledge and experience of the jury or, alternatively, raise questions involving medical judgment. [Id. at 46, citing Wilson v Stilwill,411 Mich 587 , 611;309 NW2d 898 (1981); McLeod, supra at 115.]
The Court ruled that the plaintiffs allegations involving staffing decisions and patient monitoring involved questions of professional medical management and not ordinary negligence because “[t]he ordinary layman does not know the type of supervision or monitoring that is required for psychiatric patients in a psychiatric ward.” Id. at 47.
In a case factually similar to this case, the plaintiff alleged she was injured when a technician negligently assisted her from a wheelchair onto an examination table. Regalski v Cardiology Assoc, PC,
Furthermore, plaintiff’s proofs and closing argument all clearly show that plaintiff was trying a medical malpractice case. During trial, plaintiff called a nursing expert and asked questions regarding the standard of care. In closing argument, plaintiff’s counsel argued: “The defendants in this case were professionally negligent in their care of Ms. Wiley in their hospital. They violated nursing standards. They didn’t prevent risk of injury to Mrs. Wiley’s remaining extremity. The transfer of Mrs. Wiley on 3-29 from the toilet to the wheelchair was done in an unsafe, non-nursing professional manner and that caused injury to her.”
This conclusion is also supported by the trial court’s instructions to the jury on professional negligence. The trial court instructed, without objection: “Your verdict will be for the defendant if the defendant was not professionally negligent and did not commit malpractice; or if the defendant was professionally negligent or did commit malpractice, such professional negligence or malpractice was not a
In conclusion, because this Court is constrained by MCR 7.215(J)(1) to follow Zdrojewski, supra, we find the trial court erred in ruling that MCL 600.1483 was unconstitutional and in denying defendant’s request that the cap on noneconomic damages be applied to this case. Were it not for Zdrojewski, supra, we would affirm the trial court’s order of judgment in its entirety. However, because of Zdrojewski, supra, this must be remanded for application of the cap on noneconomic damages.
Affirmed in part, reversed in part, and remanded for application of the cap on noneconomic damages. We do not retain jurisdiction.
Notes
Because Antley Wiley’s claim is a derivative claim for loss of consortium, the singular term “plaintiff” will be used in this opinion to refer to Olga Wiley. Antley Wiley will be referred to by name.
We note that the trial court admonished the expert stating:
Excuse me. Excuse me. He has a right to question you, doctor. If you can’t answer the question presented, just ask the court. If you can’t. . . just say, “I can’t answer it yes or no,” then we will move to the next question or I will ask you to explain your answer. . . . But he is entitled to ask the questions he sees fit.
We recognize that similar provisions have been held constitutional in Phillips v Mirac, Inc,
The statute at issue, MCL 600.1483, provides in relevant part:
(1) In an action for damages alleging medical malpractice by or against a person or party, the total amount of damages for noneconomic loss recoverable by all plaintiffs, resulting from the negligence of all defendants, shall not exceed $280,000.00 unless, as the result of the negligence of 1 or more of the defendants, 1 or more of the following exceptions apply as determined by the court pursuant to section 6304, in which case damages for noneconomic loss shall not exceed $500,000.00 ....
It is noted that Judge Fitzgerald’s dissent in Zdrojewski, supra, basically adopts the reasoning set forth in Judge Meter’s dissent in Phillips, supra.
In comparing remittitur, Judge Meter indicated that it differed from a damages cap because remittitur still involves a component of judicial discretion in determining whether the evidence supports the damages, and that this necessary judicial discretion is not provided for in a statutory cap on noneconomic damages. Phillips, supra at 603.
Further support for our finding can be found in Sofie v Fibreboard Corp, 112 Wash 2d 636;
In light of the finding in favor of defendant, it is unnecessary to address whether plaintiff waived this issue by not raising it before the trial court. Regardless, this issue is without merit because the issue was raised, albeit by the trial court, and addressed by the trial court, which is required to uphold the Michigan Constitution.
Plaintiff also stated in closing argument: “Dr. Park — since tins isn’t a medical case, we don’t talk about Dr. Park too much, although for whatever benefit, his deposition was read to you.” However, in light of the rest of the record, it is clear that plaintiff, although claiming medical malpractice with regard to nursing care, was not claiming medical malpractice against the doctors who treated plaintiff’s leg after the laceration occurred.
Concurrence Opinion
(concurring in part and dissenting in part). I agree with the majority’s opinion in all respects other than, its conclusion that this Court’s decision in Zdrojewski v Murphy,