Setterington v. Pontiac General Hospital , 223 Mich. App. 594 ( 1997 )

568 N.W.2d 93 (1997) 223 Mich. App. 594

Raymond SETTERINGTON, personal representative of the estate of Jane Fahr, deceased, Plaintiff-Appellee-Cross Appellant,
v.
PONTIAC GENERAL HOSPITAL, a municipal corporation, Defendant-Appellant-Cross Appellee.

Docket No. 161134.

Court of Appeals of Michigan.

Submitted November 12, 1996, at Detroit. Decided May 23, 1997, at 9:05 a.m. Released for Publication August 22, 1997.

Zamler, Mellen & Shiftman, P.C. by Gene Zamler (Bendure & Thomas by Mark R. Bendure, Detroit, of counsel), Southfield, for Plaintiff-Appellee-Cross Appellant.

Portnoy, Pidgeon & Roth by James M. Pidgeon, Bloomfield Hills, for Defendant-Appellant-Cross Appellee.

Before MAKILYN J. KELLY, P.J., and JANSEN and M. WARSHAWSKY,^[*] JJ.

MARILYN J. KELLY, Presiding Judge.

In this wrongful death action, defendant, Pontiac General Hospital, appeals and plaintiff, Raymond Setterington, cross-appeals as of right following a jury verdict for plaintiff.

Defendant argues that plaintiff failed to present evidence on the issue of causation. It asserts that the trial court erred in concluding as a matter of law that the radiologists involved were agents of Pontiac General Hospital. It claims error in the court's denial of cross-examination of Dr. Sanford on the issue of bias. It alleges error, also, in the court's ruling that the radiologists could not be questioned about CT scans other than ones they interpreted. With respect to damages, defendant asserts that the trial court erred in allowing the jury to award damages to decedent's children beyond their eighteenth birthday. Lastly, it claims that the judge failed to reduce the jury's award of future damages to present value.

Plaintiff asserts that the trial court erred in denying his motion for additur and submitting the issue of comparative negligence to the jury. We affirm.

I

Concerned about a lump in her thigh, Jane Fahr had a CT scan taken at Pontiac General Hospital in August, 1987. The radiologist, Dr. Mittner, did not mention that the tumor could be cancerous. In reliance on the radiologist's report, Dr. Sanford, plaintiffs treating physician, regarded the condition as a hematoma and believed that a biopsy was not warranted.

In late January, 1988, Fahr returned to Pontiac General Hospital for another CT scan as the lump seemed to be enlarging. The radiologist, Dr. Khalid, did not include the possibility of a malignant tumor in his report. As a result, Dr. Sanford continued to believe that Fahr had a hematoma.

In early September, 1988, Fahr returned to Dr. Sanford who had another CT scan performed. Dr. Kayne the radiologist found an enlarged hemotoma. In a follow-up discussion with Dr. Sanford, Dr. Kayne assured Dr. Sanford that the lump did not appear to be dangerous or invasive. As a result, Dr. Sanford concluded that Fahr had a hematoma with a leaking blood vessel.

In October, 1988, the tumor was biopsied and the cancer diagnosed. By December, 1988, chest scans revealed metastasis. Fahr died on July 6,1990, at the age of 32.

Raymond Setterington, Fahr's personal representative, brought a malpractice action against Dr. Choi, Dr. Sanford and Pontiac General Hospital, alleging that they failed to timely diagnose and treat Fahr.^[1] The jury found that the radiologists were agents of defendant Pontiac General Hospital and breached the standard of care. They also concluded that the breach was a proximate cause of Fahr's death. The jury returned a verdict for plaintiff in the amount of $251,554.62. The trial court denied plaintiffs motion for new trial as to damages or additur, as well as defendant's motion for new trial or remittitur.

II

First, defendant argues that plaintiff failed to produce evidence that the malpractice was a proximate cause of Fahr's death. It asserts that the only proximate cause testimony that plaintiff presented was that of Dr. Golomb. He testified that there is a five-year survival rate for sixty percent of the patients who undergo the treatment he recommended at the stage of plaintiffs cancer in the fall of 1987. However, he did not testify that plaintiff would have fallen within the sixty percent group. Moreover, defendant asserts that there was no evidence that Fahr would have survived even with the proper diagnosis and treatment.

This case is governed by the Supreme Court's holding in Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990). In Falcon, the Supreme Court held that the family of a decedent could maintain an action for malpractice where the malpractice denied the decedent a substantial opportunity to survive. Id. at 461-462, 462 N.W.2d 44 (Levin, J.), 472-473 (Boyle, J.). The substantial opportunity rule applies to all medical malpractice actions. Blair v. Hutzel Hosp., 217 Mich.App. 502, 552 N.W.2d 507 (1996); Weymers v. Khera, 210 Mich.App. 231, 533 N.W.2d 334 (1995), revM on other grounds 454 Mich. 639, 563 N.W.2d 647 (1997).

Here, Dr. Golomb testified that, had Fahr received an accurate diagnosis of cancer in August, 1987 and received treatment, she would have had a sixty percent chance of survival. Hence, defendant is factually incorrect in asserting that there was no proximate cause testimony.

III

Defendant also argues that the claim as to Drs. Kayne and Khalid should not have been presented to the jury. The record reveals that defendant moved for a directed verdict on three grounds: (1) that the radiologists were not defendant's agents, (2) that the radiology report had not misled Dr. Sanford, and (3) that the testimony of Dr. Golomb that plaintiff would have had a 40% chance of dying in any event was insufficient to establish proximate cause. There was no separate argument made as to Drs. Kayne and Khalid. Therefore, the issue is not preserved for appeal. Associates Discount Corp. v. Gear, 334 Mich. 360, 364-366, 54 N.W.2d 687 (1952).

We find that the evidence as to the malpractice of Drs. Khalid and Kayne supported the jury's finding that each was professionally negligent. Dr. Kayne failed to diagnose the cancer in September, 1988. With a proper diagnosis there could have been a full month or more of treatment before metastasis was visible in December. Therefore, there was sufficient evidence to support the conclusion that the malpractice of Dr. Kayne was a proximate cause of the metastasis and Fahr's death. As to Dr. Khalid, whose malpractice was seven months earlier, the conclusion is even stronger.

IV

Defendant also argues that the verdict form should have apportioned damages between the three radiologists. Defendant failed to preserve this issue for appeal. Byrne v. Schneider's Iron & Metal, Inc., 190 Mich.App. 176, 184, 475 N.W.2d 854 (1991). Regardless, there is no apportionment of damages between multiple tortfeasors whose negligence has combined to create a single injury. Bowerman v. Detroit Free Press, 279 Mich. 480, 490, 272 N.W. 876 (1937); Sexton v. American Aggregates, 60 Mich. App. 524, 231 N.W.2d 449 (1975).

V

Next, defendant argues that the trial court erred in ruling as a matter of law that the radiologists were agents of defendant Pontiac General Hospital. We disagree.

Following discussion of the point at the start of trial, the trial court deferred decision. During trial, plaintiff called Dr. Mittner as a witness. The trial court then explained to the jury that it would ultimately decide the relationship of the radiologists to the hospital. At the conclusion of trial, the court instructed the jury that plaintiff had the burden of proving that the radiologists were agents of the hospital. Therefore, the record does not support defendant's claim that the court ruled as a matter of law that the radiologists were agents of the hospital.

VI

Defendant also claims that there is nothing in the record to suggest that the radiologists were ostensible agents of the hospital. Grewe v. Mount Clemens General Hosp., 404 Mich. 240, 273 N.W.2d 429 (1978). In Grewe, our Supreme Court stated:

Generally speaking, a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and merely uses the hospital's facilities to render treatment to his patients. See Anno: Liability of hospital or sanitarium for negligence of physician or surgeon, 69 ALR2d 305, 315-316. However, if the individual looked to the hospital to provide him with medical treatment and there has been a representation by the hospital that medical treatment would be afforded by physicians working therein, an agency by estoppel can be found. See Howard v. Park, 37 Mich.App. 496, 195 N.W.2d 39 (1972), lv. den. 387 Mich. 782 (1972). See also Schagrin v. Wilmington Medical Center, Inc., 304 A.2d 61 (Del.Super.Ct, 1973).

In our view, the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems. A relevant factor in this determination involves the resolution of the question of whether the hospital provided the plaintiff with Dr. Katzowitz or whether the plaintiff and Dr. Katzowitz had a patient-physician relationship independent of the hospital setting. [Grewe, supra at 250-251, 273 N.W.2d 429.]

Here, the evidence supports the jury's finding that an agency relationship existed between the radiologists and the hospital. Fahr did not have a patient-physician relationship with the radiologists independent of the hospital setting. Rather, the radiologists just happened to be on duty when Fahr arrived at the hospital. Moreover, the evidence showed that the radiology department is held out as part of the hospital, leading patients to understand that the services are being rendered by the hospital. The proofs support the jury's finding.

VII

Defendant argues that the trial court erred in failing to allow defendant to cross-examine Dr. Sanford on the issue of bias. On the second day of trial, counsel for plaintiff and defendant hospital questioned Dr. Sanford at length. At the start of the next day of trial, it was brought to the court's attention that settlement negotiations were ongoing as to Dr. Sanford. Plaintiff moved to limit counsel for defendant hospital from questioning Dr. Sanford about the negotiations, citing Brewer v. Payless Stations, Inc., 412 Mich. 673, 316 N.W.2d 702 (1982). Defense counsel responded that, pursuant to MRE 607, he was entitled to attack Dr. Sanford's credibility, but would not pursue the issue if Dr. Sanford responded that there were "no deals."

The court held an evidentiary hearing. Dr. Sanford testified that there had been no agreement by which settlement for the maximum insurance coverage and her testimony adverse to the hospital would be exchanged for dismissal from the case. The trial court stated its satisfaction that the total amount offered was the maximum insurance coverage and that defendant's question to Dr. Sanford in front of the jury would be highly prejudicial.

We find that the trial court did not err in denying defendant the opportunity to question Dr. Sanford about any agreements. The only evidence excluded was that there was none. Moreover, through his questioning, defense counsel improperly sought to imply that there had been a deal. Plaintiff correctly notes that the only bias stemmed from the adverse position of Dr. Sanford and defendant. She was being sued, and her testimony inculpated the radiologists. Defense counsel was given ample opportunity to cross-examine Dr. Sanford as to her credibility following the court's grant of plaintiffs motion in limine.

VIII

Defendant argues that the trial court abused its discretion by refusing to allow the radiologists to be examined upon CT scans other than their own.

Plaintiff sought to exclude any testimony by the three radiologists regarding CT scans or other radiological studies except the ones which they initially read. The basis of the motion was the radiologists' refusal, during discovery, to give opinions on the standard of care or on films other than their own, unless they were compensated. After verifying what transpired at the depositions, the trial court granted plaintiffs motion.

This court has upheld the exclusion of evidence for failure to provide discovery. Jackovich v. General Adjustment Bureau, Inc., 119 Mich.App. 221, 238, 326 N.W.2d 458 (1982); Syrowik v. Detroit, 119 Mich.App. 343, 348, 326 N.W.2d 507 (1982). Here, the trial court did not abuse its discretion in precluding the testimony. It is clear that the court felt that defendant had violated the spirit of proper discovery. Defendant had required plaintiff to again assemble all persons needed for another deposition, rather than simply placing an objection on the record and responding to the questions posed. No limitations were placed on the testimony of the defense experts, Drs. Irwin and Emsinger. Therefore, any error was harmless. Syrowik, supra at 349, 326 N.W.2d 507.

IX

Next, defendant argues that the trial court erred in allowing the jury to consider, compute and award damages to Fahr's minor children beyond their eighteenth birthday. The determination whether an instruction is accurate and applicable to a case is in the sound discretion of the trial court. There is no error requiring reversal if, on balance, the theories and the applicable law were adequately and fairly presented to the jury. Williams v. Coleman, 194 Mich.App. 606, 623, 488 N.W.2d 464 (1992).

The wrongful death act identifies the persons entitled to damages as including "[t]he deceased's spouse, children, descendants, parents, grandparents, brothers and sisters...." M.C.L. § 600.2922(3)(a); M.S.A. § 27A.2922(3)(a). The damages recoverable are set forth in M.C.L. § 600.2922(6); M.S.A. § 27A.2922(6), which provides:

In every action under this section the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased.

The primary goal of judicial interpretation of statutes is to ascertain and give effect to the intent of the Legislature. Barr v. Mt. Brighton Inc., 215 Mich.App. 512, 516, 546 N.W.2d 273 (1996). The first criterion in determining intent is the specific language of the statute. Id. at 516-517, 546 N.W.2d 273. If the language is clear and unambiguous, judicial construction is neither required nor permitted. Id at 517, 546 N.W.2d 273.

In Thompson v. Ogemaw Co. Bd of Rd. Comm'rs,^[2] the Supreme Court found that damages for pecuniary injuries suffered by the surviving parents of a minor child could extend beyond the child's minority. The Court stated:

We do not believe that the age of the child at death (whether before or after majority) is decisive as to consideration of loss of possible future support after the 21st birthday. Nothing in the Michigan statute suggests such a distinction.... The language of the Judis [v. Borg-Warner Corp., 339 Mich. 313, 63 N.W.2d 647 (1954)] and MacDonald [v. Quimby, 350 Mich. 21, 85 N.W.2d 157 (1957)] Cases suggest that the test is reasonable expectation of support rather than any particular age at the time of death. [Thompson, supra at 489, 98 N.W.2d 620.]

Here, the jury awarded economic damages to Greg to the age of 20 and to Lindsay to the age of 22. We find that the plain statutory language permits recovery by the decedent's heirs of the loss of financial support without regard to age. Moreover, the "pecuniary injury" language of the statute construed in Thompson is analogous to the clearer "loss of financial support" language of the current statute. The Legislature is presumed to act with knowledge of appellate court statutory interpretations. Gordon Seh-Way, Inc. v. Spence Bros., Inc., 438 Mich. 488, 505, 475 N.W.2d 704 (1991). Therefore, knowing the Supreme Court's interpretation, the Legislature chose not to include any language limiting damages for financial support to the time where children reach the age of majority. We must assume that the Legislature sanctioned the Court's interpretation. Smith v. Detroit, 388 Mich. 637, 650, 202 N.W.2d 300 (1972). The fact that Thompson involved support from a child rather than to a child does not require a different result.

X

Defendant argues that the trial court erred in refusing to reduce the jury's award of future damages to present value. This issue has no merit. Defense counsel specifically requested that the jury be instructed to reduce future damages to present cash value. M.C.L. § 600.6306; M.S.A. § 27A.6306. The trial court instructed the jury as requested and the jury verdict appears already to have been reduced. Defendant is not entitled to have the jury verdict reduced a second time.

Next, defendant argues that, based on Falcon, supra, plaintiffs total damage award should be reduced by forty percent because, at best, Fahr had only a sixty percent chance of survival. Defendant did not request an instruction to reduce damages based on Falcon. Therefore, the issue is not preserved for appeal. Gore v. Rains & Block, 189 Mich.App. 729, 741, 473 N.W.2d 813 (1991). We do not find any manifest injustice in the jury instructions. Id.

XI

Plaintiff argues on cross appeal that the trial court erred in denying plaintiffs motion for additur or a new trial as to damages. The jury did not award any damages for pain and suffering or mental anguish. Moreover, plaintiff alleges that the award for loss of society and companionship was inadequate.

We must accord due deference to the trial court's decision regarding the grant or denial of additur. We will reverse only if an abuse of discretion is shown. Arnold v. Darczy, 208 Mich.App. 638, 639, 528 N.W.2d 199 (1995). Additionally, trial courts have discretion in granting a new trial, and appellate courts will not interfere absent a palpable abuse of discretion. Id.

The proper consideration when reviewing a grant or denial of additur is whether the jury award is supported by the evidence. Id. at 640, 528 N.W.2d 199. The trial court's inquiry is limited to objective considerations regarding the evidence adduced and the conduct of the trial. Palenkas v. Beaumont Hosp., 432 Mich. 527, 532, 443 N.W.2d 354 (1989); Wilson v. General Motors Corp., 183 Mich.App. 21, 454 N.W.2d 405 (1990).

After carefully reviewing the record, we cannot say that the trial court abused its discretion in denying additur. It is undisputed that Fahr had cancer before she went to any of the health providers and that defendant did not cause the cancer. Fahr missed a few appointments with Dr. Sanford and waited approximately five months before she sought a doctor's advice after noticing the initial soreness. Importantly, plaintiff was awarded compensation for Fahr's loss of a chance to survive which was proximately caused by defendant.

The jury's award reflects a determination that the conscious pain and suffering was a result of the cancer, not a misdiagnosis. The trial court presided over the lengthy trial, observed the evidence and witnesses and had the unique opportunity to evaluate the jury's reaction to the witnesses and proof. We cannot say that it abused its discretion. Palenkas, supra. Also, we cannot conclude that the trial court abused its discretion in denying additur to the award of loss of society and companionship.

XII

Plaintiff argues, additionally, that the trial court erred in submitting the issue of comparative negligence to the jury, as the evidence does not establish that Fahr's conduct was negligent. However, the issue is not preserved for appeal, because plaintiff failed to object to the instruction at the trial court level. In fact, plaintiffs counsel advised the court, "I would ... ask this Court for a directed verdict as to liability [and] ask the jury then, in turn, to go directly to the damages and comparative negligence aspect of the form." Plaintiffs counsel drafted the verdict form. Therefore, we will not review the issue further.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Dr. Choi referred Fahr to Dr. Sanford.

[2] 357 Mich. 482, 98 N.W.2d 620 (1959).