Susan Iskenderian v. Lindsey Wurtzel Dds ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
SUSAN ISKENDERIAN, UNPUBLISHED
January 11, 2018
Plaintiff-Appellant/Cross-Appellee,
v No. 333905
Washtenaw Circuit Court
LINDSEY WURTZEL, DDS, and DONALD J. LC No. 15-000177-NH
WURTZEL, DDS, PC,
Defendants-Appellees/Cross-
Appellants.
SUSAN ISKENDERIAN,
Plaintiff-Appellant,
v No. 334618
Washtenaw Circuit Court
LINDSEY WURTZEL, DDS, and DONALD J. LC No. 15-000177-NH
WURTZEL, DDS, PC,
Defendants-Appellees.
Before: O’CONNELL, P.J., and HOEKSTRA and SWARTZLE, JJ.
PER CURIAM.
In Docket No. 333905, plaintiff, Susan Iskenderian, appeals by right a judgment of no
cause of action, entered following a jury trial, in this action for dental malpractice. Defendants,
Lindsey Wurtzel, DDS (“Dr. Wurtzel”), and Donald J. Wurtzel, DDS, PC, cross-appeal by right
the same order. In Docket No. 334618, plaintiff Iskenderian appeals by right the trial court’s
August 10, 2016 order awarding costs to defendants, as the prevailing parties. We affirm in both
appeals.
I. FACTUAL BACKGROUND
Before treating with Dr. Wurtzel, Iskenderian had a psychological history that included
prior psychiatric hospitalizations. As a child, Iskenderian had filed down her teeth and had
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suffered failed root canals on four of her molars. In February 2011, Iskenderian saw Dr. Wurtzel
regarding dental work. Dr. Wurtzel testified that she was aware of some of Iskenderian’s past
psychiatric history, including the filing of her teeth.
According to Iskenderian, she discussed treatment options with Dr. Wurtzel, but she did
not want root canals because of her history of failed root canals. Iskenderian eventually
acquiesced to a plan that involved extracting her remaining upper teeth and receiving a denture.
Iskenderian claims that she felt rushed and pressured to proceed with this plan. Iskenderian
denied signing a July 2012 treatment plan, and a handwriting expert opined that the signature on
the treatment plan was not consistent with Iskenderian’s signature. Iskenderian ultimately
testified that she would not have agreed to extraction of her remaining teeth if she had been
informed of possible complications, including changed facial appearance and bone loss.
According to Dr. Wurtzel, she discussed various treatment options repeatedly with
Iskenderian. Because Iskenderian had infected teeth but did not want root canals, the only
options for those teeth were extractions. Dr. Wurtzel testified that informed consent involved
using models and discussing the process. Dr. Wurtzel testified that she extensively discussed the
options with Iskenderian, including through the use of models that demonstrated what might
happen regarding bone loss with dentures and implants. Dr. Wurtzel denied pressuring
Iskenderian to make a decision and claimed that she made every effort to accommodate
Iskenderian’s comfort. Expert witnesses testified both in support of and in opposition to Dr.
Wurtzel’s procedures and whether those procedures complied with the standard of care and
informed consent practices.
Iskenderian had her remaining upper teeth extracted on April 4, 2013, after signing a
consent form for extraction. Iskenderian believed the form was deficient because it did not
indicate possible complications, such as bone loss and change in facial appearance. Dr. Wurtzel
agreed that those possible complications were not listed on the form. Following the extractions,
Dr. Wurtzel gave Iskenderian an immediate denture, which Iskenderian was supposed to wear
until the swelling went down. Iskenderian testified that the denture caused gagging and made
her feel nauseated. Iskenderian stated that she could not eat with the denture and could not wear
it because it was too painful and because her facial appearance began to change.
Iskenderian stated that she became depressed and began isolating herself because she felt
ugly, humiliated, and deformed. Iskenderian ultimately became suicidal and was hospitalized for
12 days. Iskenderian’s psychologist testified that Iskenderian’s dental experience caused her to
feel disfigured and had undermined Iskenderian’s previous psychological gains. Iskenderian’s
psychologist opined that the proximate cause of Iskenderian’s suicidal ideation was feeling
disfigured, betrayed, and losing the gains she had made in recovering from a prior disorder.
Iskenderian’s claims ultimately proceeded to a jury trial. The jury found that Dr. Wurtzel
was not professionally negligent, and the trial court entered a judgment of no cause of action.
On July 14, 2016, Iskenderian filed a claim of appeal from that judgment in Docket No. 333905.
On July 15, 2016, defendants moved for an award of costs as the prevailing parties. On August
10, 2016, the trial court granted defendants’ motion and awarded them taxable costs.
II. EXCLUSION OF EVIDENCE
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Iskenderian argues that a new trial is required because the trial court erred by excluding
evidence of a booklet that she received from a subsequent treating physician and by excluding
rules and regulations from the Michigan Administrative Code related to the licensing of dentists.
The trial court excluded the booklet because Iskenderian offered it for its substantive content and
it was inadmissible hearsay. The trial court excluded the regulations because Iskenderian failed
to establish their relevance to this case.
Generally, this Court reviews for an abuse of discretion preserved challenges to a trial
court’s evidentiary rulings. Edry v Adelman, 486 Mich. 634, 639; 786 NW2d 567 (2010). The
trial court abuses its discretion when its decision falls outside the range of principled outcomes.
Id. This Court reviews unpreserved issues for plain error affecting a party’s substantial rights.
Duray Dev, LLC v Perrin, 288 Mich. App. 143, 150; 792 NW2d 749 (2010). An error is plain if it
is clear or obvious, and an error affects a party’s substantial rights if it affects the outcome of the
lower court proceedings. Id.
As an initial matter, we conclude that these issues are not preserved because Iskenderian
failed to make an appropriate offer of proof in support of admitting the challenged evidence. To
preserve an issue involving the exclusion of evidence, the proponent must sufficiently identify
the substance of the excluded evidence. MRE 103(a)(2). An offer of proof is required if the
content is not apparent from the context of the questions that were asked. See MRE 103(a)(2);
Kent Concrete, Inc v Hosp Bldg & Equip Co, 150 Mich. App. 91, 93 n 1; 388 NW2d 257 (1986).
In this case, Iskenderian did not identify the substantive content of the booklet that she
was seeking to admit or any particular administrative rule that she believed was relevant. The
context of the discussion does not make it clear what was contained in the excluded evidence.
The booklet apparently contained some facts about dentures, but Iskenderian did not identify
those facts or state what bearing they had on her case. Additionally, Iskenderian did not state
exactly which regulations she wished to offer. Therefore, Iskenderian failed to make an
appropriate offer of proof.
Iskenderian first argues that the trial court erred by excluding a booklet titled “Facts
About Your Dentures.” At trial, Iskenderian explained that she received the booklet from the
University of Michigan Dental School after Dr. Wurtzel referred her to that school as part of her
treatment plan. The trial court concluded that the booklet was inadmissible hearsay. Iskenderian
argues on appeal that the trial court erred in excluding the booklet because it was admissible as
part of her dental records under MRE 803(4).
Hearsay is “a statement, other than the one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is inadmissible unless a hearsay exception applies. MRE 802. There is no general
hearsay exception that allows admission of a party’s medical records. The hearsay exception
cited by Iskenderian, MRE 803(4), allows admission of “[s]tatements made for purposes of
medical treatment or medical diagnosis in connection with treatment and describing medical
history, or past or present symptoms, pain, or sensations, or the inception or general character of
the cause or external source thereof insofar as reasonably necessary to such diagnosis and
treatment.” (Emphasis added). The word “and” is a conjunction that means as well as or in
addition to. Gen Motors Corp v Dep’t of Treasury, 290 Mich. App. 355, 390; 803 NW2d 698
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(2010). The booklet does not fit this hearsay exception. The booklet was not a description of
Iskenderian’s medical history, symptoms, pain, sensations, or the cause or character of
Iskenderian’s injuries.1 Iskenderian also did not show that the booklet was reasonably necessary
to obtain diagnosis or treatment.
In sum, regardless of whether the booklet was part of Iskenderian’s medical records,
Iskenderian has not identified a nonhearsay purpose for admitting the evidence,2 and she has not
shown that the evidence was admissible under any exception to the hearsay rule. Therefore, the
trial court did not err by excluding this evidence.
Iskenderian next argues that the trial court erred by excluding regulations from
Michigan’s Administrative Code related to the licensing of dentists. The trial court excluded this
evidence for failure to establish its relevance to Iskenderian’s case.
The trial court may only admit relevant evidence. MRE 402. Relevant evidence is
evidence that has any tendency to make a fact of consequence more or less likely to be true.
MRE 401. Evidence is relevant if it is offered to prove or disprove a matter of consequence to
the case. Morales v State Farm Mut Auto Ins Co, 279 Mich. App. 720, 731; 761 NW2d 454
(2008). The proponent of evidence must establish that the evidence is admissible. Edry, 486
Mich. at 639.
To establish a claim of medical malpractice,3 a plaintiff must demonstrate (1) the
standard of care governing the defendant’s conduct at the time of the alleged negligence, (2) the
defendant’s breach of that standard, (3) the plaintiff was injured, and (4) the plaintiff’s injury
was proximately caused by the defendant’s breach. Craig v Oakwood Hosp, 471 Mich. 67, 86;
684 NW2d 296 (2004). Generally, the dental standard of care is the
duty to use that degree of care and skill which is expected of a reasonably
competent practitioner of the same class, acting under the same or similar
circumstances, having in mind (a) the state of the art for the particular medical
1
The rationale behind MRE 803(4) is that statements made during attempts to obtain treatment
are considered reliable because patients have a self-interested motivation in speaking the truth to
obtain proper care and because such statements are reasonably necessary to the patient’s
diagnosis and treatment. People v Meeboer (After Remand), 439 Mich. 310, 322; 484 NW2d 621
(1992). This rationale does not apply when a doctor is making statements to the patient.
2
As defendants observe, MRE 707 provides that “[t]o the extent called to the attention of an
expert witness . . . , statements contained in published treatises, periodicals, or pamphlets on a
subject of . . . medicine . . . are admissible for impeachment purposes only.” Iskenderian did not
seek to use the booklet for this purpose; instead, she sought to admit the booklet solely for the
purpose of establishing the truth of its substantive content. Therefore, MRE 707 does not apply.
3
Dental malpractice is a form of medical malpractice. See MCL 600.5838a(1)(b) (defining
licensed health care professionals as including those licensed under MCL 333.16101 to MCL
333.18838); MCL 333.16601(c) and MCL 333.16611 (providing licensure for dentists).
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situation, (b) whether a specialist should reasonably have been consulted, and (c)
such local factors as might be pertinent. [Birmingham v Vance, 204 Mich. App.
418, 423; 516 NW2d 95 (1994) (quotation marks and citation omitted).]
In attempting to admit the regulations below, Iskenderian cited an unpublished decision
of this Court that referenced dental regulations. However, that case involved a licensing action
and concerned whether the plaintiff sufficiently maintained dental records in accordance with
prescribed regulations. Iskenderian did not explain how the decision supported the relevancy of
the regulations to a malpractice action.
On appeal, Iskenderian merely states that “the State of Michigan Department of Licensing
and Regulatory Affairs-General Dentistry Rules are rules and regulations that licensed dentist[s]
in the State of Michigan must adhere too [sic] always.” Iskenderian asserts that “[e]ven though
this is a dental malpractice case, those rules and regulations still apply.” Iskenderian offers no
additional explanation for why the rules apply or why they should be deemed relevant to this
case. Iskenderian did not make an offer of proof at trial regarding which portions of the
Michigan Administrative Code she sought to admit and what she sought to establish by admitting
them. She similarly fails to make any such showing on appeal, so there is no basis for
determining that any specific portion of the administrative code meets the standards for
relevancy. Thus, Iskenderian has not shown that the trial court erred by excluding this evidence.4
III. COSTS
Iskenderian argues that the trial court lacked jurisdiction to award defendants costs once
Iskenderian filed her claim of appeal in Docket No. 333905. Whether a trial court has
jurisdiction to enter an order is a question of law, which we review de novo. Travelers Ins Co v
Detroit Edison Co, 465 Mich. 185, 205; 631 NW2d 733 (2001).
Once a claim of appeal is filed, the trial court generally may not amend the order
appealed from unless certain exceptions apply. MCR 7.208(A). Thus, “the filing of a claim of
appeal typically divests the circuit court of its jurisdiction to amend its final orders and
judgments.” Ypsilanti Fire Marshal v Kircher (On Reconsideration), 273 Mich. App. 496, 542;
730 NW2d 481 (2007). One exception to this rule is contained in MCR 7.208(J), which
expressly provides that “[t]he trial court may rule on requests for attorney fees or costs under . . .
MCR 2.625 . . . unless the Court of Appeals orders otherwise.” Iskenderian’s reliance on Co-Jo,
Inc v Strand, 226 Mich. App. 108, 119; 572 NW2d 251 (1997), is misplaced because that case was
decided before MCR 7.208 was amended in 1999 to provide that a trial court has the authority to
rule on a request for costs after an appeal has been filed. Accordingly, Iskenderian’s filing of her
claim of appeal in Docket No. 333905 did not divest the trial court of jurisdiction to award costs
to defendants, as the prevailing parties, under MCR 2.625.
4
Defendants raise three issues on cross-appeal, but acknowledge that it is not necessary for this
Court to consider the issues if this Court declines to reverse in Iskenderian’s appeal in Docket
No. 333905. Having found no error requiring reversal, we decline to address defendants’ issues.
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We affirm.
/s/ Peter D. O’Connell
/s/ Joel P. Hoekstra
/s/ Brock A. Swartzle
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