Ykimoff v. W a Foote Memorial Hospital

App 285 Mich 80 YKIMOFF v W A FOOTE MEMORIALHOSPITAL February 3, 2009, July Docket No. 279472. Submitted at Detroit. Decided 16, 2009, at 9:00 a.m. brought malpractice James Ykimoff a medical action in the Jackson against Hospital, Eggert, David Circuit Court WA. Foote Memorial M.D., M.D., Prough, seeking damages injuries and David for following related to a blood clot that formed an aortofemoral court, Edward, J., bypass graft surgery. Grant, The J. dismissed Prough granted partial summary disposition from the action and hospital summary disposition Eggert the and for after consid- ering deposition testimony by plaintiffs expert the witness that Eggert any applicable had not breached standard of care. The plaintiffs against hospital, premised remainder of the claims the negligence monitoring plaintiffs the on of the nurses’ the condi- surgery failing report symp- tion after the and his status and Eggert timely manner, proceeded jury toms to in a to a trial. The jury favor, returned a verdict in the to which the court applied damages cap provided the noneconomic in MCL 600.1483(1) malpractice for medical actions. After the court denied hospital’s judgment notwithstanding the motion for a new trial or verdict, hospital appealed. plaintiff cross-appealed. The Appeals The Court of held-. Eggert 1. While indicated that he would not have intervened regarding earlier even if the staff had contacted him changes plaintiffs postoperative condition, opinion in the plaintiffs expert question created a of fact whether injuries, question the blood clot caused the and that was solely jury required prove for the decide. The hospital’s negligence proximate that the was the cause of the plaintiffs injuries, is, probably that it more than not caused injuries. Eggert’s those assertion that he would have not acted differently speculative, discrepancies or intervened sooner was symptoms

between his and the documented credibility. establishing proximate nurses raised issues of Because hinged credibility Eggert’s averments, cause on the the trial properly court submitted the matter to the for resolution. v Foote Mem Ykimoff distinguishable of this case are 2. The factual circumstances (2009), Ledingham, on in Martin v from those apply relied, to this case. hospital Martin does not which action, only negligence and it is plaintiff pleaded basic 3. opportunity a better to achieve reviewable as a case of a lost not result. testify by permitting witnesses to 4. The trial court erred hospital plaintiffs integrity the or character after the purportedly demon- a surveillance video submitted into evidence physically strating limited as he that the was not as impugned alleged complaint. impliedly the video the in his While truthfulness, testimony beyond the evidenceof the went permitted plaintiffs reputation MRE for truthfulness under the 608(a)(2). error, however, harmless. The by excluding testimony from 5. The trial court did not err plaintiffs family indicating that the staff

members of the Eggert respond, had and that he did not which contacted required him The would have standard of care to do. family by to comments made the nurses that the members related statements, however, were not admissible as overheard. The 803(1) present impressions of sense under MRE or as statements mental, emotional, existing physical well- the declarant’s then 803(3). being MRE under Any by give a curative instruction 6. failure the trial court to statutory questions by plaintiffs counsel on the related to duties of nurses to document the administration of medications was harmless. 600.1483(1), damages recoverable in a 7. Under MCL malpractice medical noneconomic loss are limited. If an action for exception applies, damages capped higher recoverable are at a 600.1483(l)(c) higher cap amount. MCL allows use of the when permanent damage reproductive organ has to a there been loss or resulting inability procreate. claimed that he in the to dysfunction, from erectile but he did not demonstrate suffered precluded ability “beget offspring.” that the condition his damage resulted in a Plaintiff also asserted that nerve loss erection, inability an that sensation and to achieve or maintain by damage reproduction organ. there was to a The trial court erred jury’s applying higher damages cap to the award. part, judgment part, Affirmedin vacated in and case remanded damages. for recalculation of EJ., analysis express concern that the wrote further to Talbot, unnecessarily compli- concurring opinions might Martin in the and to be used courts in similar cases to set cate the factors disagreement Judge comparison his with Gleichbr’s forth Martin and this case. J., Judge opinion and wrote concurred with Talbot’s Bandstra, separately explain his conclusion that this case differed from disagreement Judge approach Martin and his with Gleicher’s analyzing the issues. J., agreed properly court denied the that the trial Gleicher, judgment notwithstanding hospital’s motion for a trial or new correctly granted summary disposition Eggert for verdict and damages higher cap apply, for noneconomic did not but logically distinguishable disagreed that this case and Martin were analyze separately and wrote to further issue. Giroux, & EC.

Fieger, Fieger, Kenney, Johnson (by Giroux, Jr., and Heather Geoffrey Fieger, N. Robert M. Jefferson), A. for James Ykimoff. Baron & ELLC Judith A. Sher-

Foley, Metzger, (by Clyde Metzger), man M. W.A. Foote Memorial Hospital. TALBOT, EJ.,

Before: and and JJ. GLEICHER, BANDSTRA (“defen- Hospital EJ. W A. Foote Memorial TALBOT, hospital”) appeals right judgment dant” or “the as of in Ykimoff, of plaintiff, following favor James the trial denial motion trial judgment court’s of its for a new or for (JNOV) the verdict in notwithstanding this medical mal- practice action. Elaintiff the trial cross-appeals court’s granting summary order re- partial disposition, which in plaintiffs malpractice sulted the dismissal of claims in against surgeon, Eggert. part, his Dr. David We affirm vacate the in and judgment part, remand.

I. FACTS AND HISTORY PROCEDURAL 7, 2001, On prob- November because of circulation lems in his in and hip resulting pain, left claudication Ykimoff v Foote Mem Opinion by Talbot, EJ. an bypass graft. underwent aortofemoral Dr. Eggert performed the at surgery hospital. Report- edly, of the surgery duration was prolonged because of the severity blockages in plaintiffs arteries, aorta below the renal which were described being During as “rock-hard.” the procedure, Eg- Dr. gert was to required completely clamp off blood flow plaintiffs legs. Surgery was initiated at 2:10 p.m., and plaintiff was not in post-anesthesia received (PACU) care unit for monitoring p.m. until 6:26 Initially, when Nurse Melinda Piatt received PACU, Doppler examination could detect post- pulses, tibial and plaintiff demonstrated an ability However, move his lower extremities.1 thereaf- shortly ter, plaintiff began to report consistent and severe pain, the loss of legs, sensation his pressure his pelvis and lower extremities. Plaintiffs blood pressure was low when he was transferred to the PACU and dropped while in that unit. legs Plaintiffs were also pallid observed to be and cool while in the unit. At approximately 8:40 p.m., when the skin right leg began to mottling, demonstrate the nursing staff contacted Eggert. Dr. Dr. Eggert returned to the hospital examining plaintiff by 9:12 at p.m., which time he determined that plaintiff needed to return to operating room. At p.m., Eggert 9:45 Dr. commenced exploratory surgery to evaluate blood flow and found a clot in the A graft site. thrombectomy of the right limb of the graft aortofemoral was performed, removing a blockage to the blood supply lower extremities. primary nursing responsibility Nurse Marlene Desmarais assumed plaintiff p.m., though

for the PACU at 7:45 even Piatt remained in the approximately p.m. complete unit until charting to 8:05 and assist with patient care. Talbot, by experienced surgery, plaintiff

Following the second He and numbness. extremity weakness bilateral lower 13, until November hospital at the patient remained a University of transferred to the 2001, when he was (U M) further care and treat- for Michigan Hospital M, diagnosed with plaintiff at U of ment. While or lack of due to ischemia plexopathy bilateral lumbar improved over Although plaintiffs condition blood flow. rehabilitation, report he continues time and with “tremendous deficits relative involving effects residual legs.” his to the use of action, 12,2004, alleging filed this plaintiff March

On Egg- and Drs. malpractice against hospital medical Prough Dr. was dismissed Prough. ert and David While care, in plaintiffs of his lack of involvement because Dr. Eggert treatment both alleged negligent With his com- hospital. and the staff merit Dr. Daniel filed an affidavit of plaint, plaintiff negli- Flanigan support his assertions Preston of care. applicable and breach of the standard gence defendants, Flanigan opined Dr. while Specifically, surgery, permitted after the initial caring period occlusion to exist for an extended “the vascular caused ischemia that the lack of blood flow of time such caused cell death and prolonged and the ischemia to the muscles and nerves.” permanent damage Eggert successfully partial and Dr. obtained hospital against Eg- the claims summary disposition testimony by Dr. Flani- on the basis of gert deposition any applicable gan Eggert that Dr. had breached plaintiff. his treatment of during standards of care the remainder of proceeded A trial on alleged negligence which against hospital, claims Desmarais, monitoring nurses, PACU Piatt and failing report his status condition MEM HOSP YKIMOFF V FOOTE by Opinion E J. Talbot, The timely in a manner. Eggert to Dr. symptoms judgment an order for on plaintiff, in favor of and found $1,402,601.44 verdict the amount jury’s 26, 2007, of the following application on March entered damages cap. noneconomic malpractice medical motion for denied defendant’s subsequently trial court trial, and this ensued. appeal JNOV or a new

II. SYNOPSIS OF CLAIMS pre- are malpractice by plaintiff The claims of raised by in the PACU the hospital’s mised on the care received staff, Melinda Piatt and Marlene Des- assigned nursing marais, Dr. Eggert and their failure to contact emergency, delayed surgical which signs of a vascular Plaintiffs witness expert intervention for a blood clot. began immediately clot to form contended that blood dis- surgery symptoms the first and that the following in the PACU should have alerted the played by plaintiff staff to the condition and the need to contact the nursing Plaintiffs contended that ear- treating physician. expert intervention have either lier contact and resultant would any impairment experienced by avoided residual now severity. reduced its substantially contrast, Dr. relying testimony by Eggert, on only defendant that the blood clot formed min- asserts mottling utes skin demonstrated and before in nature any impairment neurological residual is necessity clamping of prolonged and derived from because of the during surgery off of blood flow severity blockages. Defendant further contends by liability against hospital precluded causation, Dr. inability proximate given to establish by that the demonstrated Eggert’s symptoms assertion did indicate a vascular emer- the PACU not if he had been contacted gency and that even 285 Mich E J. symptoms informed of these earlier staff, he any would have taken action or intervened surgically.

III. STANDARD OF REVIEW This Court reviews de novo both a lower court’s decision on a motion for summary disposition, Maiden v Rozwood, 109, 118; (1999), 597 NW2d 817 the grant JNQV( or denial of a motion for in the latter situation “the viewing evidence and all infer legitimate ences in the light most favorable to the nonmoving party,” 67, 77; v Craig Hosp, Oakwood 471 Mich 684 (2004) NW2d (quotation 296 marks and citations omit ted). JNOV is if properly granted only the evidence fails to establish a claim as a matter of law. Id. Because issues statutory of interpretation involve questions law, they subject are also to review de novo. v Eggelston Detroit, Inc, 29, Bio-Med Applications 32; 468 Mich (2003). 658 NW2d 139 A trial request court’s denial of a curative instruction is reviewed for an abuse of discretion. 135, Schutte v Celotex Mich Corp, App 142; 196 492 (1992). NW2d 773 Similarly, preserved evidentiary is sues are discretion, reviewed for an abuse of Woodard v Custer, 545, 557; (2006), 476 Mich 719 NW2d 842 while unpreserved evidentiary issues are plain reviewed for error affecting party’s rights, substantial Hilgendorf John St & Med Ctr Corp, App 670, 245 Mich v 700; 103(a)(1). (2001); 630 356 NW2d MRE

XV. ANALYSIS A. NEGLIGENCE AND PROXIMATE CAUSE The primary contention regarding whether can establish his claim of malpractice centers on the MEM 87 YKIMOFFV FOOTE HOSP by has defined Legislature cause. Our proximate issue of malprac- for medical causation standard applicable 600.2912a(2), provides in MCL which tice cases medical alleging malprac- “In an action part: relevant he or the burden of tice, proving has more than not was injury probably she suffered an the defendant by negligence caused proximately principles pertaining The general or defendants.” malpractice in an action for medical were causation (On Garg in Robins v recently reviewed this Court (2007): 362; Remand), 351, Mich 741 NW2d 49 App 276 encompasses cause” is a term of art that “Proximate legal Craig Hosp, v both cause in fact and cause. Oakwood (2004). 67, 86; “Generally, 296 an act NW2d injury injury only of an if the omission is a cause fact (or for’) could not have occurred without ‘but that act or may omission.” Id. at 87. Cause fact be established evidence, evidence circumstantial but circumstantial speculative support must must not be reasonable Wiley Henry Cottage Hosp, v inference of causation. Ford “ (2003). 488, 496; ‘Allthat is 668 NW2d necessary proof likeli- is that amount a reasonable probability possibility. hood of rather than a The evidence negate causes, possible need not all other but such evidence hypotheses must exclude other reasonable with a fair ” certainty.’ Co, Square amount of v D 445 Mich Skinner 153, 166; 2d, (1994), quoting 516 NW2d 475 57A Am Jur 461, Negligence, p Summary disposition § 442. is not appropriate when offers evidence that shows that, likely for “that it is more than not but defendant’s conduct, a different result would have been obtained.” 471, Dykes Hosp, App v William Beaumont 246 Mich 479 n (2001). 7; 440 633 NW2d If circumstantial evidence is relied on to establish cause, proximate the evidence must lead to a reasonable inference of causation and not mere speculation. addition, theory the causation must demonstrate some 285 Mich Opinion by Talbot, Skinner, in

basis established fact. at 164. As supra guidance, Supreme further our Court has stated: “ theory causation, conjecture simply an ‘As a conditions, explanation but consistent with known facts or not deducible from them as a reasonable inference. There may plausible explanations be 2 or more as to how event an happened it; yet, produced or what if the evidence is application any them, they without selective 1 of remain conjectures only. hand, On the other if there is evidence causation, points any theory indicating which logical effect, sequence juridical of cause and then there is a determination, notwithstanding basis such a the exist plausible support ence of other theories with or without ” [Id., quoting the evidence.’ Kaminski v Grand Trunk W R (1956) (citation Co, 417, 422; 79 NW2d 899 omitted).] In summary, on, when circumstantial evidence is relied it provide must a “reliable basis from which reasonable not, minds could infer that than probably more but for” wrong an negligence injury would not have Skinner, occurred. supra at 170-171.

Defendant proximate contends that cause be cannot established Eggert definitively because Dr. indicated he would not if have intervened sooner even staff had contacted him regarding changes contrast, condition while the PACU. In argues that expert’s opinion his regarding onset clot breach of the applicable standard of care created a genuine pertaining issue of material fact the issue of causation appropriately that was submitted jury. and resolved At the analyzing outset of this issue, it should be noted that the do parties dispute plaintiff experienced a blood in the site graft clot following Rather, the initial surgery. parties dis- agree regarding the timing formation of the clot and its resultant impairments effect on the residual Hosp 89 Mem Ykimoff v Foote Talbot, EJ. sense, In the most basic this by plaintiff. claimed credibility and opinions which relies on dispute, clearly ques- expert surgeon, comprises and plaintiffs determination. Al- appropriate tion of fact for a Dr. disagreed Eggert regard- Dr. with though Flanigan and timing of the formation of clot ing the onset treatment, delay in diagnosis the effect of any not contradict of the established disagreement did and, therefore, expert was opinion plaintiffs facts cre- speculative. Flanigan’s opinion not impermissibly clot ated a of fact whether blood question plexopathy, caused bilateral lumbar which of the trier of fact to solely purview within the resolve. a factual issue has established

Although plaintiff alleged injury, the cause of his it remains pertaining to incumbent on him to further demonstrate than not” caused injury probably incurred was “more 600.2912a(2). In MCL this negligence. defendant’s case, any negligence by contends that defendant of a failing timely identify signs staff in imposition is irrelevant and cannot lead to an blood clot cause cannot be estab- liability proximate because Eggert’s unequivocal Dr. assertion that given lished regard- even if he had been notified or contacted earlier condition, any he not have acted ing would In asserting sooner. this differently any or intervened Court’s recent deci- defendant relies on this position, 158, 163; Mich Ledingham, App sion of Martin v 282 (2009), in turn cited caselaw from 774 NW2d 328 which Ohio,3 liability “that can be determining Illinois2 2 (1999). Ingalls Hosp, 7; App Ill 3d 724 NE2d 115 311 Seef v (1990), Hosp, 50 Ohio St 3d 251; Albain v Flower 553 NE2d 1038 Family grounds by Clark v & part Southview overruled in on other (1994). Ctr, Health 68 Ohio St 3d 435 285 Opinion by Talbot,

imposed adequately report physician for a failure to to a have, fact, if would in altered a only physician the report or treatment had a better or earlier diagnosis added.) Similar to the case (Emphasis been received.” Court, in plaintiff alleged now before this Martin the in negligent failing report that the staff was to the plaintiffs worsening postsurgical condition the and that such treating physician negligence comprised proximate injuries. treating the cause of her phy- in Martin sician averred ample regarding plaintiff

that he had information and her throughout period during situation the which alleges deficient, plaintiffs care was that he reviewed chart adequately apprised developments, otherwise of was nothing differently and that the nurses could have done provided plaintiff. would have the care [Id. altered that he at 162.]

This Court trial upheld grant summary the court’s of disposition defendants, in favor of “because there was no evidence showing treatment would have been if changed reporting better had oc- curred . ...” Id. at 159. In the explaining reasoning for holding, this the Court “that indicated a fact-finder’s determination merely there was cause in fact because the fact-finder disbelieved the doctors involved exactly would be kind speculation of that Skinner disapproved in the absence of any affirmative cause-in- proof by plaintiff.” fact advanced at very Id. 163. The fact-intensive nature of the in Martin ruling necessarily leads to concern applicability broader implied that decision and the effect legitimate on issues pertaining to credibility determining proximate cau- Thus, sation and role. usurpation jury’s we are required cautiously evaluate the applicability of Martin to the factual circumstances of this case. v Ykimoff Foote circum- that the factual important recognize It is from those of of Martin distinguishable are stances Martin, treating physician case. In basis, ongoing his on an condition apprised patient’s the course of to intervene alter but elected not Conse- this information. having treatment despite Martin, that the averring quently, physician differently done anything not have nursing staff could describing decision, was his to affect his treatment presenting and subse- analysis of situation actual speculating inaction and was neither quent action or assertions were relying hindsight. nor on His verbal Therefore, because with his actual behavior. consistent physician’s as- history, documented factual credibility determination. subject was not to a sertion contrast, Eggert’s Dr. assertion that he would not sooner, or the differently despite have acted intervened kept plaintiffs chang- fact that he not informed of was at best and ing symptoms, speculative condition or was Although Eggert Dr. acknowl- self-serving at worst. edged given protracted length the of surgery, it was “critical to follow” his condition because clot, of the an occlusion or potential the formation of mottling he contended that until evidenced of skin, the the he demonstrated the symptoms various emergency. Specifi- did not indicate a vascular PACU formed, until a full clot cally, Eggert testified that was mottling appear. not He asserted would to 10 minutes of mottling probably occurred within 5 clot, very limited lead suggesting the formation of the time discern the need for intervention. trial, Dr. testifying Eggert

While at characterized and mottling of as an “obvious” “dramatic” existence (i.e., subtle”), signs that other or finding implying “not have detected earlier. Because should been symptoms Talbot, “clearly recognizable” mottling Egg- when Dr. ert returned hospital, immediately to the he prepared follow-up However, for a surgery. contrary to Eggert’s Dr. presence own that until the of mottling vascular condition could be identi- fied, he also testified that plaintiffs inability to use his leg foot, coupled mottling, with the alerted the nursing presence staff to the aof vascular condition. Notably, staff observed and documented changes in plaintiffs ability to move and legs his loss of sensation in those extremities as early p.m., as 7:45 approximately one hour before Dr. Eggert was con- tacted the PACU nurses.

The record clearly evidences the ongoing observation and consistent report symptoms such pain, pres- as movement, sure the lower lack legs, sensation, and pulse, problems and with blood pressure almost from the moment of plaintiffs acceptance into PACU. A Eggert’s review of Dr. testimony demonstrates that the presence of these symptoms signified the onset of a clot detected earlier and consistently by PACU nurses be- fore the “dramatic” and definitive symptom mottling occurred. Specifically, Dr. Eggert acknowledged that an occlusion could pain. cause As early as 6:55 p.m., plaintiff consistently reported pain levels of 8 on a scale 1of to 10 while the PACU. Dr. Eggert also acknowl- edged that an occlusion could cause loss of sensation Nursing movement. records indicate plaintiff had difficulty moving his legs experienced a loss of sensation early as at 6:55 p.m.4 Eggert Dr. also agreed that an legs occlusion could cause pale to look longer after surgery. Nursing notes and testimony indicated (more plaintiffs that legs pallid were both on right the 4 Changes plaintiffs ability in to move his lower extremities were noted early p.m. in the PACU record at least as as 7:10 v Foote Mem Ykimoff left) signifi- did not demonstrate and cool and than the In recovery. inwas while improvement cant acknowledged Dr. also Eggert response questioning, sign a of an legs in the could be lower pressure that by PACU documented symptom This is occlusion. mistak- p.m. Eggert Dr. approximately nurses at 7:00 was exclu- feeling pressure the enly believed that In legs. rather than his lower sively plaintiffs pelvis addition, pressure low blood Eggert opined Dr. in deter- factors” precipitating “one of constitutes pressure clot. Plaintiffs blood the existence of a mining fact, in the PACU. In when he arrived was low in accor- epidural could not administer an nursing staff orders because of anesthesiologist’s dance with too low. A pressure initially being blood significant drop review of the PACU record shows nursing staff pressure p.m., blood at 8:10 but having pressure blood acknowledged early p.m. as as 7:55 problems 80 EJ. Talbot, Martin, credibility treating of the physician was not called into both question kept because he was apprised patient’s ongoing of his condition on an basis and because his actual behavior regarding medical completely intervention coincided his subsequent with However, Martin, assertions. unlike the physician Dr. Eggert’s credibility issue; was not eliminated as an pushed rather it was to the reasoning forefront. The Martin applied pro cannot be forma to the factual circumstances of this case because its application is limited to situations demonstrating conformance be- tween verbal assertions and actual behavior. Because establishment proximate cause hinged on the cred- ibility averments, of Dr. Eggert’s which could not be shown retrospectively to conform to the medical records and testimony elicited, the matter properly submit- ted Skinner, to the for resolution. at 161. supra cautionary

This approach evaluating averments such as those made Dr. Eggert supported by analyzing cases,” other “failure to inform such as those relied on in Martin. In Albain v Flower Hosp, Ohio St 251; (1990), 3d 553 NE2d 1038 overruled in part on other grounds by Clark v Southview & Hosp Family Ctr, Health (1994), 68 Ohio St 3d 435 the defendant was found not to be liable because of the failure of nursing staff to fully inform the staff physician regarding the condition of the A patient. pregnant woman presented at hospital a bloody vaginal with discharge. She was admitted, and an after initial by resident, examination it was determined that the on-call staff obstetrician should be contacted. At time, the obstetrician was seeing private patients at a away site from the hospital but was informed patient’s condition pro vided orders for her care. The updated obstetrician was approximately 90 minutes later and because of the received, information indicated that she would come to Foote Mem Ykimoff v

Opinion by of her office at the conclusion hospital by p.m. 5:30 at her office until did not finish hours. The obstetrician directly hospi- to the and, proceeding instead of p.m. 6:00 contacted the tal, again home to eat dinner. Staff went tests p.m., at 7:00 and additional obstetrician at home pa- did examine the The obstetrician were ordered. another Following consult with p.m. tient until 8:00 be that the should patient it was determined physician, By patient the time the hospital. to another transferred evaluated, emergency an cesarean transferred and was baby “complica- the died of section was but performed, Id. at 253. asphyxia____” tions of neonatal that medical interven- Albain, expert opined the to have occurred be- injury to avoid the needed tion Although the and 5:00 Id. at 265. p.m. p.m. tween 4:00 obstetrician of staff failed to inform the on-staff that if the obstetrician indicated vaginal bleeding, the she would have bleeding, she had been of the apprised sooner, but hospital p.m., to the around come 5:30 Impor- of treatment. not have altered the course would fact that even was verified the tantly, this assertion p.m., at the at 8:00 physician hospital when the arrived any did not the condition or ascertain diagnose she Hence, the child. this situation was danger imminent because the determi- factually similar to that of Martin negligent, if the nurses were so such nation that “even the terrible not the cause of negligence proximate was on the actual behavior of the loss suffered” was based Id. at 266. physician, speculation. to its regard instructive with particularly

Albain necessity expert testimony the discussion opin- the proximate Specifically, to demonstrate cause. between the interrelationship demonstrates the ion cause, indicating, proximate standard of care and part: relevant Opinion by

[A]ccepted nursing practice duty standards of include a keep attending physician patient’s informed of a permit physician condition proper so as to to make a diagnosis plan patient. and devise a of treatment duty, alleged thereof,

This and an breach raise issues of proximate assuming cause. Even that a nurse breached this duty attending physician patient’s to inform the of a condition, it must further be shown that such breach was proximate patient’s injury cause of the before the hospital vicariously Thus, will be held liable therefor. that, prove must had the nurse informed the attending physician patient’s proper of the condition at the time, physician diagnosis would have altered his prevented treatment injury patient. to the provided trier of expert testimony fact must be injury likely more than not caused the nurse’s (citations omitted).] negligence. [Id. at 265 In a subsequent case, Foster, Gill v Ill 304, 2d 311; (1993), 626 NE2d 190 the Illinois Supreme Court ruled that “even assuming the nurse had breached a duty to inform the treating physician patient’s complaint, this breach did not proximately cause the delay the diagnosis correct of the condi Gill, tion.” In the was hospitalized, and sur gery was conducted to correct his reflux esophagitis. Postsurgery progress notes by physician the indicated the complained of pain. chest The physi cian determined pain the to be related to the surgery and a possible pull muscle from vomiting. The plaintiff continued to complain of chest pain during his dis charge, but was advised the nurse to seek follow-up care with his family doctor. Ultimately, the plaintiff was diagnosed with a herniation of the stomach into the chest, which had occurred before his discharge from the hospital. Importantly, the condition was deemed to have occurred before the physician’s progress note indicating that he had evaluated the plaintiff but did diagnose not Hosp 97 Foote Mem Ykimoff v in Gill contin- such, holding was As the condition. this the record, established factual which on the gent plain- with contacts repeated had “treating physician Id. problem.” the diagnose to properly . . and failed tiff . at 310. 241 Co, Sullivan Gen Community v

Rampe (1997), involved case 817; NYS2d AD2d treating physician The distress. monitoring and fetal rate, did heart but in the fetal changes apprised sec- a cesarean perform immediately undertake not “that contention the rejected The court tion. physi- [the have caused call would phone an additional 819. celerity. . ..” Id. at greater to act with cian] the demonstration that However, neither a there was expert nor of the condition not informed physician was attempts at con- that additional support response. Con- physician’s have altered tact would nursing that the trial court determined sequently, liable because could not be found hospital and the staff established. cause could not be proximate 311 Ill Hosp, Ingalls The decision Seef v (1999), factually distinguish is also 7; 724 NE2d 3d was admitted to the Seef, woman pregnant able. treating monitor. The placed on a fetal hospital patient. and examined the hospital came to physician printout strips monitor’s The watched the physician minutes, he did but indicated that 15 to 20 approximately The problem. physician the existence of a interpret remained lounge, patient the doctor’s while retired to the observation of the monitor and under on by a call from was awakened physician staff. in the and, time, found abnormalities at that nursing staff further to raise concerns. On sufficient monitoring strips an cesar evaluation, emergency physician performed was stillborn. Unfortunately, the infant ean section. App Opinion by Talbot, Once if again, physician testified that “even he had seen the monitor to 3:05 strips prior a.m., he would anything differently.” have done Id. at Notably, 10. instance, this the physician’s indication that he would not have intervened sooner was not to an subject attack credibility based on because his statement self-serving hypothetical. Rather,

was neither nor [the inculpatory, unequivocal doctor] made an statement re- garding his mental state at the time of the incident. He baby’s that, took full blame for the admitting death upon time, based knowledge state of his at the he misapprehended the seriousness of the situation. He ad- that, hindsight, baby mitted should have been [Id. delivered sooner. 16.] at The court further determined that obligation nurses to notify supervisor speculative was too be- cause of the notify failure to first the treating physician and the absence of expert testimony provide an opinion regarding what another physician might have done if the treating physician had been notified and failed to act. Id. at 17.

Finally, in Suttle v Lake Forest Ill Hosp, 3d 96; (2000), 733 NE2d 726 the court distinguished Gill. Suttle, In a factual issue was found to exist what physician would have done had he been aware of the patient’s condition. Specifically, Gill deter mined to be inapposite because

[i]n this case there was a factual issue as to what Dr. Salter would done have had he known of the condition of the placenta. Gill, dispute there was concerning no factual what the doctor would have done had he known of the pains, chest because fact he did In the know. case, instant diagnosed there is that Dr. Salter suffering respiratory syndrome, Diana as from distress hypovolemic shock, rather than because he was unaware of Ms. Suttle’s undisputed velamentous insertion. It is 99 Ykimoff v Foote Opinionby Talbot, EJ. certainty degree to a reasonable which shows evidence the delay diagnosis or treatment lessened negligent proxi- to establish of treatment is sufficient effectiveness original).] (emphasis in [Id. cause. at 104 mate a deter- serves to illustrate that survey This of caselaw proxi- or absence of regarding presence mination the and that these highly fact-dependent mate cause is determinations, very nature, do not lend them- by their formulation. Because Martin overly selves to an broad very narrowly, cases should be construed and other such Martin is not of this case. applicable to the facts

B.LOSTOPPORTUNITYDOCTRINE on there is Contrary argument appeal, to defendant’s as a lost no basis for this Court to review this matter 600.2912a(2). case, A pursuant to MCL opportunity file, the particularly complaint review of the lower court merit, only plaintiff pleaded affidavit of shows that action and not a lost negligence opportunity a basic theory “A in a medical obtain a better result. specificity must be with malpractice pleaded case limited in proofs must be accordance with Badalamenti v William Beaumont pleaded.” theories 278, 284; 854 Hosp-Troy, App 237 Mich 602 NW2d 2.111(B)(1). Further, (1999), MCR the trial court citing and did not specifically request denied defendant’s matter as a lost jury opportu- instruct to treat this nity claim. doctrine is not in this opportunity applicable

The lost v Stone because, Supreme case as noted our Court Williamson, (2008), 144, 152; 753 NW2d “ ‘theory available situations where potentially that a defendant’s actions were prove cannot but can that the defen- injuries, prove the cause of his him of a chance to avoid those deprived dant’s actions 285 Opinion by Talbot, EJ. ” (Citation omitted.) injuries.’ instance, In this as in Stone, “it way is clear from the the instructions were given found that the traditional elements were negligence probably met: defendants’ more than plaintiffs injuries. Thus,. not caused . . jury prop- erly found that had satisfied the causation and injury elements.” Id. at 163. appeal,

On defendant raises a related issue pertain- ing to the trial court’s permitting plaintiffs expert to testify opportunity doctrine, lost assert- ing that Dr. Flanigan’s opinion did not meet the reli- ability criteria of MCL 600.2955 because he did not cite rely or on professional publications. treatises or In part, we need not address this issue because it is rendered by very moot the fact that the case did not proceed under the loss of opportunity doctrine and Dr. Flani- gan’s testimony was proofs consistent with to establish the elements of negligence.

MRE 702 governs the admission expert testimony, of stating: scientific, technical,

If the court determines that or other specialized knowledge will assist the trier of fact to under- stand issue, the evidence or to determine a fact in a witness qualified expert by knowledge, skill, as an experience, train- ing, may testify or education in opinion thereto the form of an (1) testimony or otherwise if the is based on sufficient facts or (2) data, testimony product the principles is the of reliable (3) methods, and applied and the witness has principles the reliably and methods to the facts of the case. Court,

This in Surman, Surman v 287, 277 Mich App 308; (2007), 745 NW2d 802 identified the criteria for the admission of expert testimony as including the requirements that

(1) (2) expert, the be witness an there are facts in evidence require subject that analysis by or are to examination and v Foote Mem Ykimoff (3) knowledge in particular the is a competent expert, and expert an than to the common belongs more to area the expert bears burden party presenting the man. necessary expert has the persuading trial court that the the knowledge that will aid the qualifications specialized and understanding determining a evidence or fact-finder in may expert an qualified as fact in issue. A witness be skill, training, knowledge, experience, [Cita- or education. omitted.] tions Flanigan’s dispute qualifica- not Dr.

Defendant does 600.2955(3) MCL to MCL 600.2169. pursuant tions provisions indicates specifically to, do not otherwise MCL 600.2955 “are addition testimony provided affect, expert the criteria for [MCL 600.2169].”

Ostensibly, Flanigan’s opinion that Dr. by suggesting 600.2955, is defendant is not admissible under MCL admissibility with the confusing opinion. Specifi- to be weight expert’s attributed cally, determining qualified

when whether a witness as an weigh the expert, proffered court trial should Rather, credibility. pertain- witness’s trial court’s doubts ing disagreement credibility, opposing party’s or an with facts, expert’s interpretation present opinion an weight “ given testimony, issues be admissibility. ‘Gaps or not its weaknesses the witness’ cross-examination, expertise subject go for a fit and to are ” testimony, weight admissibility.’ The of his not its usually expertise of a for to extent witness’s is omitted).] (citations [Surman, supra at decide. 309-310 Hence, criticism or regarding defendant’s scientific Dr. more Flanigan’s opinion theoretical basis for is challenge during to cross- properly confined than to invalidate his attempting examination rather qualification. overall 285

Opinion by C. ERRORS EVIDENTIARY trial permit- Defendant contends the court erred ting lay testify regarding plaintiffs integ- witnesses rity responds or character. Plaintiff admission that of testimony necessary was and responsive to a sur- veillance into by defendant, video submitted evidence which implied that was not truthful alleged the effect of his injuries. 608(a) MRE

Specifically, provides: credibility may The sup- a witness be attacked or ported by opinion reputation, evidence the form or but (1) subject may only to these limitations: the evidence refer (2) untruthfulness, for character or truthfulness only evidence of truthful character admissible after the character of the witness for truthfulness has been attacked by opinion reputation or or evidence otherwise. trial,

At video, defendant offered surveillance without testimony commentary, showing or plaintiff engaged in certain Purportedly, activities. the video demonstrated that, contrary plaintiffs assertions, capable he was in certain engaging as physically activities limited alleged as complaint. his impliedly video impugned plaintiffs truthfulness, suggested as it residual injuries were not as extensive or 608(a)(2) limiting alleged. as MRE permits opinion testimony regarding for character truthful- ness “only after character of the witness truth- fulness been has attacked opinion reputation added.) evidence (Emphasis or otherwise.” In this in- beyond stance the plaintiffs reputation went for truthfulness and encompassed plaintiffs overall “integrity.”

Although the trial erred by permitting court this testimony, any we conclude such error was harm- 103 Yktmoff Foote v Opinion by EJ. Talbot, for is not cause evidence admission of “Error in the less. party of the right a substantial unless it affects reversal Abundant v Holland Stitt admission.” opposing Life 469; (On 461, 624 Remand), App 243 Fellowship 103(a). Notably, the MRE (2000); also see NW2d residual of plaintiffs the extent dispute issue functioning. parties Both effect on his and their injuries evi- and other testimony through opportunity had the video, their support dence, the surveillance such as Hence, suffi- there existed contentions. and arguments plaintiffs determine for the cient evidence testimony regard- of irrespective impairments residual of the testi- addition, much integrity. ing plaintiffs regard- was factual elicited from these witnesses mony volunteering at of while their observations ing of church, background part which served as his able to These witnesses were the surveillance video. images for the explanation context or provide some in conjunc- considered defendant. When submitted them jury admonishing the instructions to tion with to be weight afforded credibility to determine the of the “and the reasonableness testimony any witness’s evidence,” of the light in the of all testimony considered testimony was challenged permitting error in any harmless. the trial court’s challenges cross-appeal, plaintiff

On Eggert. Dr. in favor of summary disposition of grant court erred contends the trial Specifically, its refusal to consider following the claims dismissing family that testimony by various members had been Eggert indicated that Dr. nursing staff had violation pages, to their calls unresponsive the trial court asserts that care. Defendant standard of inadmissible hear- testimony as excluded this properly or any documentation of the absence say and because affect indicating that the evidence would Opinion by alter the opinion expert regarding Dr. Eggerf s breach of the standard of care.

The claims against Eggert Dr. were dismissed be- cause of the opinion of plaintiffs expert, Dr. Flanigan, that the had surgeon not breached applicable the stan- dard of care the provided. treatment Dr. Flanigan did indicate only that the possible by breach Dr. Eggert would have if been he had not responded in a timely manner to a by communication the nursing staff. Subsequently, depositions were conducted of wife, son, and daughters, and they recalled by comments PACU nursing staff after the surgery first suggesting they encountered difficulties in reach- or ing communicating with Dr. Eggert regarding plain- tiffs condition while in the unit. Specifically, plaintiffs son recalled the nursing staff indicating they were trying Eggert, reach Dr. but could not recall a time frame between these comments and the physician’s arrival at the PACU. Plaintiffs daughters testified in a manner, similar asserting that the nursing staff indi- they cated were experiencing difficulty contacting Dr. Eggert regarding control pain and that on day the after the second surgery, one of the nursing staff indicated when trying to contact Dr. Eggert that she busy signal received a and had to request the operator to “break on the line for an emergency.” Plaintiffs wife testified in a similar manner reported but by comments the nurses occurred at approximately 8:00 p.m. and Eggert that Dr. appeared in the PACU within 30 minutes of these comments. Contrary to this testi- mony, all the nursing staff involved and Eggert Dr. denied encountering any delay in reaching They him. specifically having disavowed to use a telephone opera- tor to break into phone line, his and there was no commensurate documentation indicating either need for ongoing efforts to contact or difficulty in Ykimoff v Foote E J. contacting physician. asserted Defendant further demonstrate the if were able to that even nursing contacting difficulty Dr. staff encountered proof regarding Eggert, insufficient there was to establish a breach amount of time involved standard of care. 801(c) “hearsay” statement, as “a other

MRE defines testifying at while than the one made the declarant hearing, prove trial or offered evidence Hearsay asserted.” is inadmissible truth of the matter except MRE within the rules of evidence. as delineated alleged by the nurses un- statements 802. While they hearsay, comprise questionably contends 803(1), pursuant either MRE as admissible were 803(3), impressions, present MRE as state- sense existing physical mental, emotional, or then ments of a condition. present impression, a “statement

A sense defined as describing explaining made or an event or condition perceiving or condi- the event the declarant while immediately precluded tion, thereafter,” is not or 803(1). availability hearsay MRE this rule. exception the state- relies on trustworthiness substantially contempora- ment, is based on the which underlying of the statement with neous nature People 229, 235; 586 Hendrickson, 459 Mich event. v (1998). hearsay admis- evidence to be For NW2d exception, met: three criteria must be under this sible “(1) explanation provide or an the statement must (2) perceived description event, the declarant (3) expla- personally perceive event, must ‘substantially contempo- description must be nation or Contrary Id. at 236. raneous’ with the event.” plaintiffs the record contention, it is not clear from alleged were staff that the statements App 285 Opinion by E J. substantially contemporaneous with the purported dif- ficulties encountered in contacting Eggert. Dr. Specifi- cally, the comments made on the day following the surgery clearly second are precluded because of the failure to temporal establish proximity with the alleged addition, events. In in order to establish the foundation for the hearsay admission of a pursuant statement present sense impression exception, other evidence corroborating the statement brought must be forth to reliability. ensure its Id. at instance, 238. this there is neither documentary evidence nor verbal testimony to corroborate the alleged statements.

Plaintiff further contends that the alleged state- ments are alternatively admissible 803(3), under MRE which provides: A statement of the existing declarant’s then state of mind, emotion, (such sensation, physical or condition as intent, motive, plan, design, feeling, pain, mental

bodily health), including but not memory a statement of prove belief to the fact remembered or believed unless it execution, revocation, relates to the identification, or terms of declarant’s will. 803(3)

Although plaintiff contends that MRE is appli- cable, he fails any to cite expound law or on his assertion. “An appellant may not merely announce his position and leave it to this Court to discover and rationalize claims, the basis for his nor may give he issues cursory treatment with little or no citation of supporting authority.” Houghton Keller, v (2003) (citation 336, 339; omitted). 662 NW2d 854 Because plaintiff failed to properly address the merits of his assertion of error regarding this evidentiary provi- sion, we consider the issue abandoned. Id. at 339-340.

Despite plaintiffs failure to properly present this issue for appellate consideration, we note that “the Ykimoff v Foote by E J. 803(3) v very MRE narrow...UAW scope (On 26, 38; 730 NW2d Remand), Dorsey (2007). do not reflect alleged Because the statements mind, merely serve to declarants’ state of but behavior, of events or explain past sequence the exception excluded from specifically statements are and not admissible. INSTRUCTION

D. CURATIVE by failing the trial court erred Defendant contends misrepresenta- give regarding a curative instruction defendant by Specifically, tion of law counsel. nursing Piatt and questioning that while Nurse argues improperly Janet counsel expert McCoig, plaintiffs staff had violated implied to the failing to document on the medication statutory law (MAR) record the administration administration challenged exchange pertain- certain medications. The on to Nurse Piatt focused on the failure to document ing the MAR the administration of an narcotic: epidural

Q. is, you give And a medication what this is whenever patient, Ykimoff, you required by to the in this case Mr. are law to write it down in this medication record?

A. Yes. challenge Plaintiffs counsel continued to both Nurse Desmarais deficiencies or Piatt Nurse charting in their for this How- patient. inconsistencies ever, did until object defendant McCoig counsel Janet and elicited questioned following:

Q. put required Are in the MAR the medica- nurses tions law? Yes,

A. sir— App 108 285 Mich 80 Opinion by Subsequently, extended discourse occurred between court, the trial the of the presence counsel and outside seeking clarify being referenced, to the “law” jury, which counsel never identified or to provided sought the trial a in- court. Defense counsel curative struction, 2.516(C), to the pursuant MCR which trial denied, denial, court on the basing part, mistaken belief that the discussion the status or exist- ence a had presence of such law occurred of the jury. 2.516(C)

MCR provides: party may assign giving A as error the of or the failure give only party objects an instruction if the on the record jury (or, before the retires to consider the verdict in the given begun, case of instructions after deliberations have deliberations), stating specifically before the resumes objects party grounds the matter to which the and the for objection. Opportunity given must be to make the objection hearing jury. out of the Properly preserved assertions of instructional error are de reviewed novo. Cox v Flint Bd of Hosp Managers, 467 (2002). 1, 8; Mich 651 “[A] NW2d 356 verdict should not be set aside unless failure to do so would be inconsistent justice. with substantial Reversal is not warranted when an instructional error does not affect the outcome of the trial.” 1, 9; Jimkoski v Shupe, App 763 (2008). NW2d

The focus of questioning by plaintiffs counsel was to demonstrate negligence by nursing staff in failing to recognize the postsurgery formation of a blood clot and notify in a surgeon timely end, manner. To this intensely counsel questioned staff regard- ing charting their of plaintiffs condition and treat- ments administered in an effort to demonstrate their symptoms indicating awareness various the forma- Ykimoff v Foote Mem Opinion Talbot, EJ. temporal points during plain- tion of a clot at various charting deficien- stay in the PACU. Whether tiffs statutory violation was comprised the nurses cies legal requirements irrelevant. The references only and constituted cursory medications were charting making it part argument, small very or caused the unlikely that these references influenced reliance verdict defendant. Defendant’s jury’s against Leavitt, 235; 214 NW2d 739 on Shreve v (1974), is In the misstatement of law misplaced. Shreve and affected a proximate to the issue of cause pertained Id. at 241. In by jury. crucial confronted question instance, or this whether failure to document chart a form violated a law or particular medication on regulation integral demonstrating not to was proximate or cause. negligence defendant’s Further, jury, the trial instructed the “The law court are to this case is contained these you apply to your duty to follow them” and that instructions it is attorneys comprise did not evidence by statements an disregard anything by and that the “should said by not evidence....” Be- attorney supported is instructions, are to follow their jurors presumed cause a curative instruction was harm- any provide failure to 158, 164; Corp, App less. Bordeaux v Celotex (1993). 511 NW2d 899 DAMAGESCAP

E. NONECONOMIC action, In a medical MCL 600.1483 con- malpractice damages Spe- trols an award of for noneconomic loss. 600.1483(1) cifically, provides: MCL damages alleging malpractice medical an action party, by against person or or the total amount of by plaintiffs, damages loss recoverable all for noneconomic defendants, resulting negligence from the of all shall by unless, $280,000.00 negligence exceed as a result of defendants, following 1 or more of the 1 or more of the pursuant exceptions apply as determined the court 600.6304], damages in which case for noneconomic [MCL $500,000.00: loss shall not exceed (a) hemiplegic, paraplegic, quadriple- The is or gic resulting permanent 1 or in a total functional loss of following: 1 or more limhs caused more (i) Injury brain. to the

(ii) Injury spinal to the cord.

(b) permanently impaired cognitive has capacity rendering incapable making him or inde- her pendent, responsible permanently life decisions inca- normal, pable independently performing the activities of daily living.

(c) permanent damage There been has loss of reproductive organ resulting inability procreate. in the case, only For of this the trial court’s deter purposes 600.1483(1)(c) mination that MCL applicable being considered.

The trial use of permitted upper court tier of damages cap on the basis of claim that he suffered dysfunction from erectile as a result of defen- negligence, dant’s in “inability which resulted his to procreate.” Defendant contends that erectile dysfunction was a condition that existed before the to the surgery points lack of medical evidence to support this claim. Resolution of this matter turns on both the statutory language damages cap provi- of the sion and the failure of plaintiff to come forward with any medical evidence to its support application under the circumstances of this case. goal statutory interpretation give is to effect Legislature.

to the intent of the Diamond v Wither (2005). 673, 684; If spoon, App 696 NW2d 770 Hosp Ykimoff v Foote Mem Opinion by Talbot, statutory language unambiguous, judicial “is clear and required permitted, construction is neither nor (quota courts must the statute as written.” Id. apply “ omitted.) may tion marks and citations court read ‘[A] unambiguous into an statute that is not nothing within intent of the from Legislature manifest as derived ” the words of the statute itself.’ Thorn v Mercy 644, 649; Corp, 281 Mich 761 NW2d (2008) (citation omitted). 600.1483(1)(c) MCL requires, for tier application upper damages cap, damage reproductive organ loss of or to a “permanent resulting inability procreate” to must have oc curred. “Procreate” is defined Random House Web (1997) Dictionary ster’s as follows: a tran College “[as beget generate (offspring). sitive 1. to or 2. to verb] produce; bring being, [an verb] into intransitive 3. to beget offspring.” contrast, In the definition of “erectile dysfunction” inability is “chronic to achieve or main tain an erection for sexual satisfactory intercourse[.]”5 Significantly, the definition for “erectile dysfunction” does not equate impairment with level of sufficient to meet the statutory requirement “inability of an procreate” purposes applying higher damages cap. severity While the level or condition may interfere with his ability engage sexual intercourse, there is no demonstration that this condi precludes ability tion his “beget offspring.” addi tion, specifically the statute requires “permanent loss of damage to a . . reproductive organ . .” Plaintiff does damage organ. Rather, not assert to a he reproductive damage asserts ischemic to the plexus lumbosacral nerves, area, affecting pelvic which has allegedly resulted in the inability loss of sensation and to achieve Merriam-Webster’s Medical Dictionary, at available Merriam-Webster (accessed 2009). <http://www.merriam-webster.com> 20, OnLine March 285 EJ. by Talbot, alleged injury may

or maintain an erection. While intercourse, ability in sexual engage affect the to encompass claim does not definition organ,” to a damage reproductive loss of or “permanent 600.1483(1)(c). by MCL required as Notably, only testimony regarding plain- elicited his tiffs condition came from and wife. There plain- definitive medical that linked was no evidence to the and also served to alleged surgery tiffs condition fact, In verify inability procreate. an to ac- dysfunction that he suffered erectile knowledged from period surgery, for a of time before the albeit to a lesser Although consulted a degree. plaintiff previously physi- condition, cian medical intervention this ultimately he declined the recommended treatments or addition, In pharmaceutical options. presence conditions, other medical such as blood preexisting high diabetes, pressure they might how have con- tributed to condition were not as addressed in this diagnosis. Although plaintiffs factors wife testi- that fied intimate relations with her husband were affected, find contradictory we it that a claim for loss of consortium did not this There is accompany complaint. plaintiff enjoyed ability procreate evidence that life, having However, earlier in his fathered 11 children. no commensurate medical evidence proffered was establish that ability procreate absolutely his such, precluded surgery. as result of this As the trial court erred this in the using exception calculation of damages. noneconomic addition, plaintiff has raised several additional issues

on on this Court’s cross-appeal depend determination trial new is warranted. Because we do not find it trial, to remand this necessary matter for new this Court need not address those issues. remaining Ykimoff v Foote Mem

Opinion by

V RESPONSE divergent perspectives my I understand the of col- regarding leagues application Martin, but believe imperative unnecessarily it we not confuse the in and issue provide this case that we make a concerted effort to guidance possible

as clear a rule or as to courts facing Although agree similar issues. I with con- regarding potential oversimplification cerns for improper application ruling Martin, of this in I Court’s similarly concurring opinions feel burdened that the in may unnecessarily complicate this matter to serve by rather than define the factors to be used courts in making involving determinations in cases similar is- sues. Specifically, disagree Judge I with state- GLEICHER’s credibility treating physician

ment that “the questioned any regardless reason, could be whether his conduct conformedwith his words.” Post at Although jury may accept I concur that a or 122. disregard testimony fact-finder, as the ultimate I do not agree ignore that the fact-finder can uncontroverted establishing facts the actual conduct or behavior of physician. Judge Further, I take issue with GLEICHER’s opinion “entirely contention that this lead has miscon- regard proximate strued the law” with elucidated in Skinner. Post at 129. to cause as Judge GLEICHER asserts that in Martin and this case “record evidence question plain- created a of fact whether the injury they timely tiffs sustained because did not receive postoperative surgery (emphasis . . . .” at Post original). Merely plaintiffs proffered expert because testimony provides possible explanation injury for the by suffered is insufficient itself to meet regard proximate burden with causation. Conse- quently, reasoning I believe that the delineated in this 285 Skinner and that Judge is consistent with

opinion permit accept that we suggestion GLEICHER’s of a opinion, irrespective expert’s as credible an reject con- that a “conduct physician’s factual demonstration proscriptions violates the formed with his words” and does Skinner conjecture against speculation at hand. not address issue I the inclusion of a more Finally, agree while history in Martin would have been extensive factual I dis- avoiding potential misapplication, its helpful Judge attempts agree with the distinctions GLEICHER Martin and this case. While Martin draw between phy- affidavits heavily provided referred to the factual sicians, there did exist Martin uncontroverted only had not treating physician averments that ad- reviewed the chart but “was otherwise patient’s Martin, . .. .” equately apprised developments supra of Hence, physician at 162. the failure of the Martin to act, availability regarding of information his given condition, from the situa- patient’s distinguishable is case, involving tion in this the absolute absence of such Hence, Dr. Eggert. Eggert’s information Dr. subse- his and denial of an quent averments inaction comprise speculation earlier basis for intervention mere I that conjecture. emphasize and would focus merely on the types predictable these of cases is Rather, it is the conflicting expert opinions. existence of detailing existence of uncontroverted facts the actual consistency and their physicians behaviors of the inconsistency regard timing receipt with related to condition that patient’s information their subsequent a court to evaluate their averments permits to the effect or absence of treatment or pertaining determining genu- interventions whether provided cause are proximate ine issue of material fact established. Ykimoff v Foote Concurring Opinion by J. Bandstra,

VI. CONCLUSIONS We affirm the trial court’s denial of defendant’s motion for a new trial or grant JNOV and the summary disposition in Eggert. favor of Dr. We vacate that portion judgment pertaining to the award and remand the case to the trial court for recalculation of damages pursuant proper to the statutory provision of the medical malpractice damages cap. Pursuant 7.219(A), MCR we conclude that neither side has suffi- ciently prevailed for purposes of taxation of costs. We do jurisdiction. not retain J. I (concurring). concur with the lead BANDSTRA,

opinion and write separately explain my conclusion this case factually different from Martin v Ledingham, 158; 282 Mich App (2009), NW2d 328 as well as firm my disagreement with the approach advocated in Judge concurring opinion. GLEICHER’s

The record in this case establishes clearly that before his decision to undergo the bypass graft surgery, plain- tiff was fully informed Dr. David Eggert procedure was a serious matter that could well result in negative consequences no matter carefully how it was conducted. Nonetheless, plaintiff decided to take the risks necessarily attendant to the surgery and, al- as leged in his complaint, experienced he postsurgical problems that have led to this lawsuit. course,

Of the mere fact injury does not suffice to (defendant) impose liability against the hospital in this malpractice Instead, lawsuit. plaintiff must establish that his injuries proximate “were the result” of defen- dant’s failure to comply with an appropriate standard of care. Craig v Oakwood Hosp, 67, 86; (2004). NW2d 296 As part of this required “proximate cause” proof, plaintiff had to come forward with evi- APP 80 285 MICH Concurring Bandstra, J. . . . defen- logic, a matter of showing “[a]s

dence in fact of. . . was a cause negligence dant’s Id. at 87. injuries . . . Martin, allegation involves the like this case

Much Eggert nurses better informed that, had defendant’s condition, he would postoperative regarding plaintiffs miti- actions, which would have taken different have Martin, con- properly In we injuries. gated plaintiffs failed to come forward with that the had plaintiff cluded failure to alleged the nurses’ sufficient evidence cause in was, logic, a matter of to the doctors as report contrary, the To the any injury plaintiff. fact of logical to that connection only evidence pertaining stated directly unequivocally refuted it. The doctors that the reports if nurses had made that even have not they would plaintiff appropriate, claimed were plaintiff response. altered their treatment of Martin Judge complaints, Notwithstanding GLEICHER’s that the had recognize did more than nothing connection between the logical the burden to establish a alleged injury. and the alleged negligence Martin so, naturally concluded that having failed to do summary was warranted. disposition today, presented us evidence was the case before conclude that a rational fact-finder could from which alleged logical there connection between As did the doctors negligence alleged injury. and the Martin, that had he received better Eggert stated regard- defendant’s nurses complete reports more from condition, he would ing plaintiffs postoperative Nonetheless, as response. treatment have altered his testimony was opinion, Eggert’s in the lead explained and admissions from which replete with caveats fact, that, in better and reasonably could conclude led him to might well have complete reporting more 117 v Foote Ykimoff Opinion by Concurring Bandstra, J. problems.1 plaintiffs to aggressively more respond logical possible a sense, proving burden of the that reports nurses’ the connection between cause-in-fact satisfied.2 injury was plaintiffs ab- completely to seems opinion Judge Gleicher’s with come forward burden to any from solve a a mal- in of support cause-in-fact evidence affirmative liability argument, I As understand claim. practice pre- the evidence all though even imposed could be in fact of cause logical finding a directly refutes sented disbelief subject to that evidence because GLEICHER would words, Judge as fact. In other finder of the fact-finder a case to it, bring could have a finding of logical a support to any evidence without fact-finder that fact, merely hope in in the cause logical that no establishing disbelieve evidence would in fact existed. cause inconsis- certainly approach be a novel

That would a bur- understanding plaintiffs usual tent with the summary the usual It would also subvert proof. den of litiga- defendant from rule that a disposition protects of a on an element genuine if “there is no issue” tion 2.116(C)(10). only if the Even claim. MCR plaintiffs claim, Judge plaintiffs undermines a available evidence 1 certainly strong; logical in fact here was The evidence of a cause presented minimally genuine merely issue was to a level where it rose fact-finder’s determination. for the 161-162, expert Martin, opinion here supra at As reports from Eggert had he received better should have done about what logical element of The cause-in-fact the nurses is irrelevant. would, showing Eggert only by what be satisfied evidence claim can regard provided, fact, reports without had different been have done obligations may under an any hypothetical he have had whatsoever would, care evidence applicable care. a standard of standard of Such Eggert, having course, received better in a different case—if be relevant nurses, failing being to undertake reports sued from response. different treatment Concurring Bandstra, J. genuine still find a issue apparently

GLEICHERwould arising possibility from the fact-finder could disbelieve that evidence. by Judge approach radical advocated GLEICHER long

would be stated rule that directly contrary “it is not a inference draw from legitimate to be denying sought proved, the existence of a fact Quinn such v denial is evidence that the fact exists.” (1884). Blanck, 269, 272; 55 Mich 21 307 Judge NW selectively GLEICHER number of quotes Michigan from a precedents portrayed being contrary that are as to this Quinn However, commonsensical rule. none of those precedents plaintiff rely a on merely allowed evidence contrary in proposition to a order to establish that Instead, proposition. each disputes case involved factual and, contradictory based on unremarkably, evidence those the disputes go were allowed to fact-finder for n.3 determinatio 3 424, (1881), Durfee, 427; only In Woodinv 46 Mich 457 9 NW “most surrounding undisputed. of” the facts the execution of a bond were facts, apparently testimony rest of the to be the deduced from of seven people bond, involved in execution of the the “were not conceded or beyond dispute.” Supreme opined Id. the that of While Court the account favoring “probably ought the bond’s execution the claimant to have any one,” satisfied it further concluded that this determination was properly considering jury apparently varying in the of the the hands Similarly, Co, evidence. in Id. Cuttle v Concordia Mut Fire Ins 295 Mich 514, 519; (1940), Supreme 295 NW 246 the Court determined that a question jury testimony by factual for a existed determination when person notice, directly contradicted,” that he a had mailed while “not was person’s principal employer inconsistent a of with evidence from the concerning sent, in the manner which the been notice had as well as recipients complaints regarding evidence that various of the had notice 230; receipt Again, 224, Grayewski, of the in notice. Arndt v (1937), Supreme unremarkably 271 NW 740 Court concluded a question testimony factual for existed determination when the of an eye-witness “disputed physical facts, by to an accident was seriously questioned testimony of one defendants ....” Morgana 514; (1964), Engels, 372 Mich 127 NW2d 382 involved a routine 119 Foote Ykimoff v Concurring Bandstra, J. Taylor precedents, of these most recent Further, (2008), 313; NW2d 309, Mobley, v one, plaintiff a in which present like the not a case evidence to present responsibility with burdened plaintiff do so. The failed to arguably of a claim support support her own presented in Taylor claim. of her element damages noneconomic contested simi- any argument present did not Accordingly, Taylor a failure here about one we address lar to the is com- Taylor of proof; a burden shoulder properly pletely inapposite. concerns” “additional

And, Judge GLEICHER’s finally, at 132. Post unfounded. simply are opinion with this my recognize a failure to are based on They a burden of places law the fact that our analysis rests on Thus, a damages. seeking to recover proof plaintiff on any evidence to come forward with failing subject to a claim is properly an element of support that burden to shoulder failing for summary disposition words, penalized In other proof. because precisely evidence to come forward with failing That plaintiff.4 on a proof a burden of imposes the law he had not dispute who claimed malpractice between a doctor suit practice expert testified that any and an witness who standard of violated 251, 270-271; Hosp Corp, App 408 160 Mich v John he had. Strach St (1987), question presented a doctor’s when a factual was NW2d 441 independent plaintiffs an testimony that he was that he had informed testimony they did not plaintiffs’ that contractor was contradicted 309, App And, finally, Taylor Mobley, Mich being v 279 so told. recall jury (2008), disbelieve a 313; that a could 234 our Court held 760 NW2d suffering pain there was where of extreme account credibility,” testi- “countervailing that undermined evidence pain’ only immedi- “plaintiff appeared in ‘a little bit of mony to be that contradictory action, dog giving and other ately rise to the after” the bite evidence. 4 just plaintiff, any party, a course, analysis applies to Of this same law, many example, proof. areas of our For bears a burden of who a imposed a defendant once presenting proof a defense is on of burden Concurring Gleicher, J. [July- same analysis apply party does not to a on which no burden proof thus, is And imposed. Judge GLEICHER’s conclusion that the rule requiring plaintiff present evidence in support of a claim means that a plaintiff who does summary so is entitled disposition logically unfounded. J. I (concurring). concur with the lead

GLEICHER, opinion that properly trial court denied defendant A. Hospital’s W Foote Memorial judgment motion for notwithstanding the verdict or a new trial and correctly granted summary disposition to defendant Dr. David I Eggert. agree further that the higher medical malprac 600.1483(1)(c) damages tice cap MCL does not apply facts of this case. I write separately to express disagreement with the proposition that this case is from Martin v Ledingham, logically distinguishable (2009). 158; Mich App 774 NW2d 328 The lead opinion rejects the hospital’s contentions that failed to genuine create a issue of fact causation, concerning concluding that because the jury remained free Eggert’s to disbelieve Dr. testimony, “the matter properly submitted jury to the for resolu- tion.” Ante at 94. Judge BANDSTRA’s concurring opinion posits Eggert’s that Dr. “was replete with caveats and admissions” allowed the to deter- mine that “better and more complete reporting might well have led” aggressive to more plain- treatment Ante at 116. Both the lead opinion and problems. tiffs Judge BANDSTRA’s concurring opinion assert weaknesses in Eggert’s inherent testimony completely Martin. distinguish this case from I respectfully plaintiff presents prima support facie case in of a claim. If a defendant any support fails to come forward with evidence in aof defense to the claim, summary disposition. is entitled to Ykimoff v Foote Concurring J. Gleicher, view, free to credit or my In “the disagree. Inc, testimony.” Kelly Square, v Builders any discredit (2001) 39; (emphasis 29, 632 NW2d 465 Mich added). incorrectly Moreover, I believe that this Court decided Martin. ITS DISREGARD

I. MARTIN’S SIMILARITY TO THIS CASE AND PREROGATIVE OF THE JURY’S FACT-FINDING situation Martin, this Court confronted a factual In in plaintiff the instant case. The strikingly similar to the applicable that the nurses breached Martin asserted by failing apprise plaintiffs care standard of The condition. worsening postsurgical of her surgeon support affidavits surgeons submitted plaintiffs 2.116(C)(10), to MCR summary disposition pursuant changed not have the course they “that would alleging by defen- employed treatment had nurses plaintiffs as them of condition dant informed Martin, at 159. they should have.” alleged that, “showing had the submitted evidence would have reported, a notified doctor properly nurses Id. at change plaintiffs treatment.” duty had the the defen- summary disposition affirming 160. the Court Martin considered hospital, dant notion ultimately rejected surgeons’ affidavits that cause fact that a fact-finder could determine fact-finder disbelieved the “merely because the existed reasoned, . ...” Id. at 163. The Court doctors involved issue genuine insufficient to create “This evidence was what only because it concerned on factual causation better reports doctors should have done had hypothetical Martin, According to id. Id. at 161-162. provided.” been in- actually of the doctors 163-164, jury’s disbelief at inherently in an in a care would result volved causation, directly contravening finding speculative App 285 Mich by Concurring Opinion Gleicher, J. our Supreme holding Co, Court’s Skinner v D Square (1994). 153, 164; 445 Mich 516 NW2d 475 meaningful No distinction exists between the causa- proofs presented tion in Martin and those introduced during the trial I respectfully of this case. reject the lead opinion’s reasoning Martin, “[i]n that credibility the the treating physician was not called question into both because he was kept apprised of his patient’s condition on ongoing an basis because his actual behavior regarding medical intervention completely coincided with his subsequent assertions.” Ante at In my view, 94. the credibility of the treating physician could ques- be tioned any reason, regardless of whether his conduct conformed with his words. Martin, the surgeons’ affidavits set forth opinions (1)

regarding the extent or quantity of their knowledge (“[Dr.] plaintiffs condition Rynbrandt repeatedly stated that he had ample information re- ....”) (2) garding plaintiff and her situation (“[H]e quality of their knowledge reviewed chart and was otherwise adequately apprised of devel- ....”). opments Martin, 282 Mich App at 162 (empha- added). sis Dr. Rynbrandt’s affidavit further opined that “nothing the nurses could have done differently would have altered the provided care that he plaintiff.” Id. asserts,

The lead opinion very “The fact-intensive nature of ruling in Martin necessarily leads to concern regarding the broader applicability of that decision . .. .” Ante at 90. But Martin woefully contains few facts. The opinion lead attempts to distinguish Martin emphasizing that affiant surgeons case actually behaved accordance with the words recited in their affidavits. But that is not what the case says, I and am at a loss to read facts into Martin that

simply do not exist. Had the surgeons in Martin been Ykimoff v Foote Concurring Opinion by J. Gleicher, the when bedside patient’s at present occurred, I dare- have intervention should claimed that Instead, the so reflected. would have say their affidavits by Dr. reasoning adopted the same affidavits assert changed the course would not have they “that Eggert: employed had nurses treatment defen- condition as plaintiff’s them dant informed at 159 Martin, should have.” alleged they added). nor re- neither examined Martin (emphasis treating physi- “actual behavior” ferred lead find in Martin for the I no basis simply cians. behavior physician’s opinion’s determination subsequent with his “completely in that case coincided Ante at 94. assertions.” in opinion, physician lead “the

According to the could not Martin, nursing the staff averring affect his treatment anything differently to have done the decision, analysis pre- his actual describing was action or inaction senting subsequent situation and hindsight.” on Ante speculating relying neither nor was submitted disagree. at 91. I The affidavits respectfully the opinion testimony addressing in Martin embodied and the manner in knowledge character of the affiants’ if had they which would have the nurses responded Martin, Mich at App “better provided reports.” reporting knowledge Rather than firsthand 161-162. of the con- obtained from actual observations observations, the affi- with the temporaneous they speculation the affiants’ about what davits recited that did not have done under circumstances would essence, affidavits actually surgeons’ quali- exist. In the question, to the What hypothetical fied as answers in the done had the nurses behaved you would have plaintiffs nursing expert? the manner described view, actually speculative more my this evidence the stan- testimony describing and less reliable than 285 Concurring Opinion by Gleicher, J. care, rigorous dard of which must conform to the requirements of MRE 702 and 703. The plaintiffs called into the expert testimony question credibility of the affidavits that the surgeons’ asserting standard of care to the affiants applicable required swifter inter- If jury vention. the believed the plaintiffs experts regard, this it should then have determined whether to surgeons believe that would have breached standard of care. provided

Because affidavits Martin opinions facts, credibility rather than of their signers should have explored been at a trial. It is for this central reason that I disagree holding with the in Martin that supplied affidavits basis for summary disposi- factual Although Judge tion. BANDSTRA characterizes as “radi- issue, cal” my approach 118, to this ante at I propose nothing century new. More than a ago, the United States Supreme concisely Court articulated the founda- tion for the that a principle credibility always witness’s remains subject jury’s to a consideration: judges credibility were the of the , weighing

witnesses .. . and in their had the right dependence placed determine how much was to be upon many things it. There are sometimes in the conduct stand, upon of a witness and sometimes in the mode in through which his answers are from ques drawn him counsel, tioning by jury of guided which a are to be determining weight credibility testimony. the and of his part every belongs jury, That of case... to the who are presumed by intelligence to be fitted for it their natural practical knowledge men; and their ways of men and the of long jury they and so as we have triads should not be it, possession except disturbed in their of in a case of manifest and extreme abuse of their function. [Aetna Life Ward, 76, 88; 720; Ins Co v 140 US 11 S Ct 35 L Ed 371 (1891).] 125 Ykimoff v Foote Mem Concurring Opinion by Gleicher, J. Martin, Michi- demonstrate that until

Numerous cases to the consistently had adhered courts gan’s appellate Aetna Ins Co and derived from principles, core Life (1) testimony is cases,1 every that witness’s similar (2) a the finder of fact and court subject by to disbelief reject jury’s accept the to may usurp prerogative not any testimony. 424, 427; 9 Durfee, in Woodin v example,

For the (1881), Supreme grant our Court reversed NW 457 basis of by directed the trial court on the of a verdict to have “probably ought evidence that “undisputed” Court, .” for a unanimous any Writing satisfied one . . . that the absence of explained despite Justice COOLEY evidence, the disbelieve the any conflicting jury “may evidence, it uncontra- positive most even when stands underpinning throughout principles this The core the caselaw cited concurring opinion the of the United emanate from Seventh Amendment 110, 133; Conqueror, 166 17 S Ct States Constitution. See also The US 510; (1897), stating weight given to be 41 L Ed 937 that the “ultimate by jury; testimony experts question the and the of is a to he determined judgment, requires them to surrender their there is no rule of law which witnesses,” give controlling opinions of scientific or to influence to 45, 49; (1881), Hargrave, stating: L Ed 1028 and Head v 105 US jury testimony province weigh of the of the It was the services, attorneys by value of the reference to their as to the nature, occupied performance, time in their and other attend- circumstances, by applying experience ing knowledge to it their and own of such services. To direct them to find of the character alone, experts services from the of the the value say to them that the issue should be determined was attorneys, opinions their own and not the exercise of opinions given.

judgment of the facts on which those were professional experts as to the value of services does evidence differ, principle, from evidence as to the value of labor in such business, departments properly. or as to the value of Sofar other knowledge ideas, laying general aside their own from applied knowledge and those ideas to the matters should have of fact opinions expressed; given determining weight in evidence in to be to the they only way and it in that could just conclusion. arrive at a 285 Concurring J. Gleicher, dieted; judge and the cannot take them right from their Id. Our judgment.” Supreme again emphasized Court that a witness need not be believed in v McKay, Yonkus 203, 210-211; (1915), 186 Mich 152 NW 1031 stating: To hold that all cases when a witness swears a jury accept certain fact the court must instruct the proven, dangerous statement as would be to establish a rule. Witnesses sometimes are mistaken and sometimes unfortunately wilfully are mendacious. The administration justice require does not the establishment of rule a which compels jury accept verity every as absolute uncon- may tradicted statement a witness make.

In Cuttle v Co, 514, Concordia Mut Fire Ins 295 Mich 519; (1940), 295 NW 246 the Supreme Court again acknowledged “[u]ncontradicted testimony may be because, disentitled to conclusiveness from lapse of circumstances, time or other may it be inferred that the memory of the witness is imperfect as to the facts to testified, which he or that he pro- recollects what he forgotten.” fesses to have Id. See also Arndt v Grayewski, 224, 231; 279 Mich (1937), 271 NW 740 holding that eyewitness testimony “is not conclusive upon jury court or a if the facts and circumstances of the case are such as irresistibly lead the mind to a different conclusion.” Nall,

Citing 25, 29; Baldwin v 34 NW2d 539 (1948), this Court held in Strach v John St Hosp Corp, 251, 160 Mich App 271; 408 (1987), NW2d 441 that a jury could disregard physician’s unrebutted testi mony, reasoning jury may that “a disbelieve the most positive evidence even when it stands uncontradicted, and judge cannot take from them their right of judgment[.]” More recently, Taylor v Mobley, 279 309, 314; Mich App (2008), 760 NW2d 234 this Court held that the jury justifiably rejected the plaintiffs Ykimoff v Foote Concurring Opinion by J. Gleicher, testimony regarding unchallenged uncontradicted bite. This suffering dog after pain her personal disbe- simply that “the could have Court observed testimony regarding lieved and discredited in a The Court referred foot- suffering.” Id. pain standing propo- for the additional cases note several testi- prerogative that “the to disbelieve jurors’ sition testimony, including uncontroverted well mony, n Id. at 314 5. established.” despite Eggert’s underscore that Dr.

These cases assertion that he would not have emphatic, unrebutted he p.m. irrespective on at 7:00 of what operated nurses, the may jury possessed have learned from the every Eggert that Dr. authority to disbelieve word Eggert’s asserts that Dr. opinion uttered. The lead self-serving at best and at testimony “speculative was disregarded. be Ante at 91. But worst” and thus could view, wholly characterizations as irrel- my qualify these analysis evant to the focus of the here. The requisite posits jury caselaw discussed earlier can disre- that, in the of Justice gard testimony words COOLEY, Woodin, ought any to have satisfied one . . ..” “probably 46 Mich at this Court Regardless 427. whether views as ratio- treating physician entirely records, nal and in accord with the medical or com- absurd, pletely self-serving verging judge on the jury “right judgment.” cannot remove from a its Strach, Woodin, 160 Mich at 271. From the time of App that of in Michi- through Kelly, governing principle gan jury possesses has been that a freedom to reason, opinions any a witness’s or for no disregard right discernible reason. That a has exercised this proximate “specula- does not render its cause decision Rather, inquiry tive.” the correct is whether sufficient neg- record evidence demonstrates that the defendant’s “a and .. . that ligence injury, cause of App 285 Mich Concurring Opinion by Gleicher, J. . injury. . a natural and probable [was] negligent result of the M conduct.” Civ JI 15.01.2 II. IMPROPER FACT-FINDINGBYTHE MARTIN COURT IN THE CONTEXT OF SUMMARYDISPOSITION This Court’s decision in Martin contravenes another accepted rule. jurisprudential “It is well settled that where the truth of a material factual assertion moving of a party’s depends affidavit on the credibility, affiant’s there genuine exists a issue to be decided at trial by the trier of fact and a motion for summary disposition cannot be granted.” SSC Assoc Ltd v Detroit Partnership Gen Retirement Sys, 192 Mich 360, 365; App 480 NW2d 275 v Poletti, (1991); see also Arbelius 14, 18-19; (1991). 469 NW2d 436 However, in Martin this Court accepted as true the treating physicians’ averments de scribing they what would they have done had received the reports by the nurses that the plaintiff alleged should have been made. The Court rejected the notion that record evidence, including the testimony plaintiffs expert witness that the additional reports would have shown the physicians that a different course of treatment appro was priate, sufficed to the challenge veracity of the treating physicians’ contentions. Despite apparent the absence of any evidence rebutting the testimony of the plaintiffs expert, the Court in Martin found as fact that the treating physicians would not have changed the if they treatment had received additional reports. Martin, supra at 161-163. 2 A authority grant summary trial court retains disposition the if malpractice plaintiff present medical fails documenting evidence physician what a reasonable would have done under the same or similar circumstances or that an alternative course of conduct would likely have altered Additionally, the outcome. a trial court may 2.611(A)(1)(e) analyze the evidence under MCR to determine “great weight whether the supports jury’s of the evidence” the proximate finding. cause Ykimoff v Foote Concurring Opinion by J. Gleicher, Partnership Ltd and a of SSC Assoc in light I that believe caselaw, this conclusion consti- line of established related warranting ground a second supplies legal error tutes of Martin. reconsideration IN MARTIN AND THIS CASE

III. CAUSATION of both Martin troubling aspect most But the causation meaning of proximate concerns the this case Court’s Supreme of our application proper and the of Skinner reveals A Skinner. brief review opinion concurring Judge lead opinion, that the BANDSTRA’s the law. and Martin entirely have misconstrued opinion, Skinner had death, his the decedent At the time of “tumbling metal machine” of an electric operating been Skinner, 445 Mich at and manufacture. design his own D Square theorized that defendant 157. The a switch that the dece- defectively designed Company Accord- tumbling in his machine. incorporated dent had ” of the “large ‘phantom zone’ ing plaintiffs, to the that the switch inaccurately signaled switch sometimes to the power actually flowing “off” continued was while Id. at 158. Because no one witnessed the machine. accident, demon- decedent’s no direct evidence existed between the switch and the strating any relationship against case plaintiffs’ decedent’s electrocution. circumstantial, predicated D on a Square entirely played D had Square mere switch assumption death. Id. at 163. Furthermore, a role the decedent’s directly evidence contradicted physical some of proposed by plain- accident scenario hypothetical D tiffs. Id. at 171-172. maintained even Square switch, of a defect in its assuming presence failed to demonstrate proofs circumstantial plaintiffs’ misled the switch when he that the decedent “was Id. at 158. The Supreme fatally electrocuted.” the record contained no agreed, concluding that Court 285 Concurring Opinion by J. Gleicher, direct or circumstantial evidence from which a reason- able could infer the mechanism of the decedent’s electrocution or whether the switch contributed to the accident. Id. at 174. The Supreme Court emphasized Skinner that adequate, “[t]o be circumstan- proof tial must facilitate reasonable inferences of cau- sation, not speculation.” mere Id. at 164. simply

Skinner has no here applicability or to the situation presented Martin. both this case and Martin, record evidence created a question of fact regarding whether the plaintiffs sustained injury be- cause they did not receive timely postoperative surgery, expert testimony in both cases demonstrated that “but for” timely the absence of surgical intervention, plaintiffs would not injury. have sustained Unlike Skin- ner, in which no direct or circumstantial evidence connected the defect in the switch the decedent’s electrocution, admissible expert opinions in Martin and the instant case directly linked the plaintiffs’ injuries to a delay in their second operations. And breaches of the nursing standard of care constituted a cause of that delay, according to plaintiffs’ evidence.

The plaintiffs’ expert physicians here and in Martin thus supported the “but for” causation requirement testimony with their if had under- gone earlier surgeries, second they would have recov- ered uneventfully. And critically, most the experts fur- ther opined had the treating physicians been informed of their patients’ conditions, worsening standard of care would required have prompt second operations. A firm factual foundation supported the expert supplied cases, both providing admissible evidence from a jury which could conclude that a reasonably prudent physician would taken have patients back operating room, to the thereby pre- Ykimoff v Foote Opinion by Concurring Gleicher, J. entirely in Skinner venting injury. plaintiffs While in a cause that the switch constituted lacked evidence electrocution, here plaintiffs fact of the decedent’s that the nurses’ in Martin evidence produced This evidence injury. in negligence patient resulted v Oakwood Craig in fact. See also established cause (2004): 67, 87-88; 684 NW2d 296 Hosp, Generally, is a cause in fact of an an act or omission (or injury only injury not have occurred without if the could for”) plaintiff need not that act or omission. a “but While catalyst the sole for his prove that an act or omission was permitting jury to injuries, introduce evidence he must a conclude that the act or omission was cause. important in mind that a cannot

It is to bear may satisfy by showing only that the defendant this burden injuries. requires more than caused his Our case law have Rather, plausible explanation. a possibility mere or a conduct was a plaintiff establishes that defendant’s injuries only specific “set[s] if he forth cause in fact of his logical support that a reasonable inference of a facts would causation, theory sequence of and effect.” A valid cause therefore, on facts in evidence. And while must be based “ possible negate need all other ‘[t]he evidence ” consistently causes,’ required that the this Court has “ hypotheses evidence ‘exclude other reasonable with a fair ” certainty.’ [Citations omitted.] amount Martin, presented and in evidence plaintiffs Here “ logical inference of a supported that 'a reasonable ” (citation and effect.’ Id. at 87 sequence of cause omitted). evidence, could On the basis of constituted a reasonably negligence infer injuries. It is reasonable plaintiffs’ cause fact patient’s that a doctor informed of further infer her will his or problems serious postoperative conform Speculation to the standard care. applicable conduct this no in the creation of conjecture play part on actual expert opinions, premised inference. The 285 Concurring Opinion by Gleicher, J. medical records and provided accordance with MRE 703, 702 and afford a jury’s reasonable basis for a conclusion that the nurses’ negligence was “a cause of plaintiffs injury, injury.. and .. . that the . [was] a natural and probable negligent result of the conduct.” M JI 15.01. In summary, Civ unlike the Skinner, any who lacked factual support for their expert’s opinion connecting switch and the mechanism of death, the decedent’s the medical mal practice plaintiffs here and in Martin introduced evi dence from jury which the could reasonably infer that surgery, earlier performed accordance with the stan care, dard of would prevented have injury.3 IV ADDITIONAL CONCERNS WITH JUDGE BANDSTRA’S APPROACH Judge opinion asserts that “logical BANDSTRA’s cause-in-fact element of plaintiffs claim can be satisfied only by showing evidence what Eggert would, fact, done have had different reports been provided, without regard any whatsoever to hypothetical obligations he may have had under applicable an standard of care.” at Ante 117 n suppose 2. But Eggert Dr. had testified if the nurses had notified him changes condition, he would have immediately taken operating According room. Judge BANDSTRA’s concurring opinion Martin, Dr. Eggert’s testimony would necessarily have resulted in summary disposition regard with to proxi- for mate causation. This result fly would in the face of the overriding rule that a jury may elect to disbelieve Dr. Eggert and reject his any reason, includ- ing that it seems either self-serving likely false. emphasis expert It testimony may bears that an witness’s not be particular upon admitted unless the “facts or data in the case which an expert opinion bases an [are] or inference in evidence.” MRE 703. y Foote Ykimoff Concurring Gueicher, J. remained a had Eggert that Dr. Alternatively, suppose case. malpractice medical in the instant codefendant had Eggert if Dr. reasoning, Judge Under BANDSTRA’s 8:40 until operated not have that he would testified him, this nurses told notwithstanding what p.m. the nurses relieved automatically have testimony would negligence. for their any liability analysis is Judge respect, all due With BANDSTRA’s has the incorrect, only because plainly also because the Eggert, Dr. but disbelieve authority to an in- merely constitute negligence would physician’s has This Court injury. the plaintiffs cause of tervening intervening negligence notion that soundly rejected an initial tortfeasor: causation proximate eliminates proximate to be a negligence does not cease An act of intervening negli- act injury because of an cause of the operating and the negligence is still prior if gence, have from that which would injury different in kind is not this state have prior The courts of from the act. resulted intervening negligent act of a third held that whether an is a proximate cause superseding person constitutes intervening not an jury. cause is An question for the intervening liability event foresee- if the absolute bar to [Taylor Wyeth able, criminal. v though negligent or even 389, 401-402; Laboratories, Inc, 362 NW2d omitted).] (citations (1984) 293 treating acts in negligent of a doctor’s “Consequences considered foreseeable. injury are original the plaintiffs negligent act intervening doctor’s Hence, whether a question cause is superseding proximate a constitutes 308, Pierce, 317; App Richards v jury.” for the omitted). (1987) (citation 725 NW2d did in hold, as this Court would Judge BANDSTRA physician’s a accept court must Martin, that a trial would have done of what he description hypothetical facts, testimony if this is even known the actual had he App 285 Concurring Opinion by J. Gleicher, by soundly competent establishing rebutted evidence that in doing, physician so would have violated the Such an standard of care. elevates rank approach specu- In expert lation over medical an opinion. analogous consent, setting involving informed the United States Court of for Appeals the District of Columbia explained soundly the reasons courts reject should this of subjective proof: standard view, dealing In our method with this of the issue on physician causation places comes second-best. It jeopardy patient’s hindsight places bitterness. It of position deciding in the specu- whether a factfinder hypothetical question lative answer to a is to be credited. It subjective solely calls a determination on a patient-witness shadowed the occurrence the undis- [Canterbury Spence, 263, closed v risk. 150 US DC (1972) 281-282; added; (emphasis 464 F2d 772 citations omitted).] A physician’s expressed opinion concerning his hypo- thetical under conduct different circumstances should objective testing by face a jury. Although physician’s a testimony regarding causation is a relevant consider- ation, logic nor neither law dictates that it should always control the outcome of the causation issue.

V CONCLUSION The central proximate question cause both this Martin case and whether the patient would have timely benefited from attending to the reports A surgeon. jury soundly rejected Eggert’s Dr. conten- tion that he have ignored would earlier information signaling a case, vascular different catastrophe. credit a might fully physician’s comparable testi- mony reject the physician would probably have adhered to the standard of care described the plain- v Foote Ykimoff Concurring Gleicher, J. solely this resides question Resolution of expert. tiffs expressed the caveats summary, with jury. with affirmance of lead opinion’s I concur opinion, this motion for hospital’s court’s denial the trial trial, or a new notwithstanding the verdict judgment Dr. disposition Eggert, summary grant damages. for a recalculation remand notes postoperative Dr. admission that his Eggert’s thought” transpired “what I had summarized specula- to demonstrate the recovery serves room/PACU provision timely of his that the tive nature averment staff not have affected his information would discrepancies be- particular, actions. because symp- Dr. and the documented Eggert’s tween statement, toms, “Regardless Dr. of what Eggert’s I says, they’re following patient record know any did find at all assessing problems for vascular at time it became place, until the thrombosis took which clear,” Eggert’s Dr. absolute credibility. raises issues of sooner, that he not have intervened even assertion would had him and related plain- if the PACU nurses contacted because symptoms, particularly suspect tiffs surgical upon his initiation of intervention immediacy of hospital. arrival at the

Case Details

Case Name: Ykimoff v. W a Foote Memorial Hospital

Court Name: Michigan Court of Appeals

Date Published: Jul 16, 2009

Citation: 776 N.W.2d 114

Docket Number: Docket 279472

Court Abbreviation: Mich. Ct. App.