Dykes v. William Beaumont Hospital , 246 Mich. App. 471 ( 2001 )

633 N.W.2d 440 (2001) 246 Mich. App. 471

Vicky DYKES, Personal Representative of the Estate of James Dykes, Deceased, Plaintiff-Appellant,
v.
WILLIAM BEAUMONT HOSPITAL, Defendant-Appellee, and
Charles Main, M.D., Defendant.
Vicky Dykes, Personal Representative of the Estate of James Dykes, Deceased, Plaintiff-Appellant,
v.
William Beaumont Hospital, Defendant-Appellee.

Docket Nos. 214284, 218386.

Court of Appeals of Michigan.

Submitted October 11, 2000, at Detroit. Decided June 19, 2001, at 9:00 a.m. Released for Publication September 6, 2001.

McKeen & Associates, P.C. by Brian J. McKeen and Ramona C. Howard, Detroit, for plaintiff.

Plunkett & Cooney, P.C. by Robert G. Kamenec, Detriot, for defendant.

Before NEFF, P.J., and TALBOT and Joseph B. SULLIVAN,^[*] JJ.

PER CURIAM.

In these consolidated cases, plaintiff appeals as of right an order of the circuit court dismissing her medical malpractice claim (Docket No. 214284) and appeals by delayed leave granted an order awarding mediation sanctions against plaintiff (Docket No. 218386). We affirm the trial court's grant of summary disposition and reverse the award of mediation sanctions.

I

Plaintiff filed this medical malpractice action against defendants^[1] following the death of her sixteen-year-old son, James, who was treated in early 1992 at defendant William Beaumont Hospital (herein defendant) for a respiratory infection. James had been diagnosed with acute lymphocytic leukemia in 1978 and had an extensive medical history, including repeated chemotherapy treatment, a spleenectomy, and two bone marrow transplants.^[2]

Following the second transplant in August 1991, James developed symptoms of a respiratory infection and was admitted to defendant on February 7, 1992. Defendant provided a course of diagnosis and treatment over the next two months, and James was subsequently discharged and readmitted to defendant twice during this time. Following readmission on March 26, 1992, James' diagnosis indicated the presence of pseudomonas bacteremia, but ruled out sepsis.^[3] James was placed on medications for the pseudomonas. On March 31, 1992, defendant discharged James with instructions for follow-up blood cultures on April 6, 1992. James died on April 2, 1992, from pseudomonas septicemia.^[4]

Plaintiff brought this medical malpractice action alleging that defendant was negligent in diagnosing James' problem as recurrent leukemia rather than a respiratory infection and in failing to provide a proper course of treatment. Specifically, plaintiff claimed that defendant violated the standard of care by failing to perform a bronchoscopy or an open lung biopsy to identify the source of James' respiratory problems and by failing to recognize that aggressive antibiotic therapy was warranted. In the affidavit of meritorious claim filed by plaintiff, plaintiff's expert witness, Michael E. Trigg, M.D., stated that "had the standard of care been followed, James Dykes would [have] had a greater then [sic] 50% chance of surviving the infectious process from which he suffered...."

Following Dr. Trigg's deposition,^[5] defendant moved for summary disposition on the basis that plaintiff failed to establish a genuine issue of material fact regarding the element of causation. Defendant argued that because Dr. Trigg testified that he could not state that the omitted treatments would have changed the outcome or prolonged James' life, plaintiff offered no evidence of causation beyond mere speculation and conjecture. The circuit court agreed and concluded that plaintiff had not met her burden of showing a genuine issue of material fact regarding whether it was more likely than not, but for defendant's conduct, James' injuries would not have occurred.

Following the dismissal, defendant moved for the taxation of costs against plaintiff as mediation sanctions under MCR 2.403(O)(1). The court granted the motion and awarded defendant $48,271.45.

II

In Docket No. 214284, plaintiff appeals the order of summary disposition. We affirm. This Court reviews de novo an order granting summary disposition. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). A motion for summary disposition pursuant to MCR 2.116(C)(10) tests the factual support for a claim. Id. A court must consider the pleadings, depositions, affidavits, admissions, and other documentary evidence submitted by the parties. Id. If the party opposing the motion presents evidentiary proofs creating a genuine issue of material fact, summary disposition is improper. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454-455, n. 2, 597 N.W.2d 28 (1999); Murad v. Professional & Administrative Union Local 1979, 239 Mich.App. 538, 541, 609 N.W.2d 588 (2000).

A

To prove medical malpractice, a plaintiff must show that the defendant's negligence proximately caused the plaintiff's injuries. Weymers v. Khera, 454 Mich. 639, 647, 563 N.W.2d 647 (1997). Under Michigan law, proximate causation is subject to a more probable than not standard:

In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%. [M.C.L. § 600.2912a(2).]

Thus, to recover for the loss of an opportunity to survive or an opportunity to achieve a better result, a plaintiff must show that had the defendant not been negligent, there was a greater than fifty percent chance of survival or of a better result. Wickens v. Oakwood Healthcare System, 242 Mich.App. 385, 392, 619 N.W.2d 7 (2000), lv. gtd. 463 Mich. 907 (2000); Theisen v. Knake, 236 Mich.App. 249, 259, 599 N.W.2d 777 (1999).

Plaintiff's malpractice claim was premised on the theory that had defendant not been negligent, James more probably than not would have survived his infection, as Dr. Trigg stated in his affidavit:

Within a reasonable medical probability had the standard of care been followed, James Dykes would [have] had a greater then [sic] 50% chance of surviving the infectious process from which he suffered; thus, the violation from [sic] the standard of care is a proximate cause of the damages claimed by Plaintiff.

In his deposition testimony, however, Dr. Trigg contradicted his affidavit. Defense counsel queried Dr. Trigg whether there was any way of knowing whether, "if [James] had received anti-pseudomonas medication during the February 12 hospitalization, [] he would have lived longer than April 2, 1992." Dr. Trigg responded that there was "no way of knowing that." Dr. Trigg also testified contrary to his affidavit with regard to defendant's failure to perform a bronchoscopy or an open lung biopsy:

Q. [I]s it a fair statement to say that neither you nor I, as we sit here today, know what, if anything, a bronchoscopy would have revealed during [the February 7 to February 9, 1992 hospitalization]?

A. That's a fair statement.

Q. And is it also fair to say that because we don't know that, neither you nor I, or [sic] anyone can say within a reasonable degree of medical certainty that a bronchoscopy during that February 7 through 9, 1992 hospitalization would have made any difference in James Dykes' outcome and prolonged his life?

A. That's a fair statement.

* * *

Q. [I]s it fair to say that as we sit here today, neither you nor I can conclude, or [sic] anyone else, what a bronchoscopy and or an open lung biopsy would have revealed during the February 12 hospitalization within a reasonable degree of medical certainty? Is that a fair statement?

A. My clinical judgement [sic] and assessment is it would have revealed a bacterial problem. I think that it would have been very useful, but I can't know that for certain.

We conclude that the trial court properly granted summary disposition because the deposition testimony of plaintiff's sole expert witness failed to establish the requisite causal link between defendant's conduct and James' life expectancy or death. Dr. Trigg's deposition testimony directly contradicted his affidavit regarding the issue of causation. Defense counsel questioned Dr. Trigg regarding defendant's failure to diagnose pseudomonas and to recognize that antipseudomonas medication was indicated. Dr. Trigg conceded that there was "no way of knowing" whether James would have lived beyond April 2, 1992, if defendant had treated him with the recommended antibiotics. Nor could Dr. Trigg offer an opinion regarding James' life expectancy if the recommended treatment had been given. Dr. Trigg also acknowledged that it was not possible to state within a reasonable degree of medical certainty whether a bronchoscopy or an open lung biopsy would have made any difference in the outcome or prolonged James' life.^[6] Viewing the evidence in the light most favorable to plaintiff, plaintiff failed to demonstrate a genuine issue of material fact regarding the element of causation. Weymers, supra at 647-648, 563 N.W.2d 647.^[7]

Further, in light of Dr. Trigg's deposition testimony, plaintiff may not rely on Dr. Trigg's affidavit to establish the existence of a genuine issue of material fact. Mitan v. Neiman Marcus, 240 Mich.App. 679, 682-683, 613 N.W.2d 415 (2000). Plaintiff argues that notwithstanding Dr. Trigg's deposition testimony, his affidavit states that if defendant had followed the standard of care, James would have had a greater than fifty percent chance of surviving his infection. Plaintiff maintains that this conflicting testimony presents a question of fact for the jury. We disagree that Dr. Trigg's affidavit creates a question of fact sufficient to defeat summary disposition.

This Court has held that "`parties may not contrive factual issues merely by asserting the contrary in an affidavit after having given damaging testimony in a deposition.' "Mitan, supra at 683, 613 N.W.2d 415, quoting Kaufman & Payton, PC v. Nikkila, 200 Mich.App. 250, 256-257, 503 N.W.2d 728 (1993), citing Downer v. Detroit Receiving Hosp., 191 Mich.App. 232, 233-234, 477 N.W.2d 146 (1991). In Barlow v. John Crane-Houdaille, Inc., 191 Mich.App. 244, 477 N.W.2d 133 (1991), the trial court granted the defendant's motion for summary disposition notwithstanding inconsistencies between the plaintiff's deposition testimony and his subsequently filed affidavit. The Barlow Court relied on the earlier holding in Garmet v. Jenks, 38 Mich.App. 719, 197 N.W.2d 160 (1972), and restated this principle and its underlying rationale:

"As a result of his own deposition testimony, plaintiff's ability to present a case was challenged. His affidavit merely restated his pleadings. Deposition testimony damaging to a party's case will not always result in summary judgment. However, when a party makes statements of fact in a `clear, intelligent, unequivocal' manner, they should be considered as conclusively binding against him in the absence of any explanation or modification, or of a showing of mistake or improvidence. The purpose of GCR 1963, 117 [now part of MCR 2.116] is to allow the trial judge to determine whether a factual issue exists. This purpose is not well served by allowing parties to create factual issues by merely asserting the contrary in an affidavit after giving damaging testimony in a deposition. As was stated in Perma Research and Development Co. v. The Singer Co., (C.A.2, 1969), 410 F.2d 572, 578:

"`If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.'" [Barlow, supra at 250, 477 N.W.2d 133, quoting Garmet, supra at 726, 197 N.W.2d 160 (citations omitted).]

See also Downer, supra at 233-234, 477 N.W.2d 146; Peterfish v. Frantz, 168 Mich.App. 43, 54-55, 424 N.W.2d 25 (1988); Stefan v. White, 76 Mich.App. 654, 660, 257 N.W.2d 206 (1977). In Kaufman & Payton, PC, supra at 257, 503 N.W.2d 728, this Court again rejected a party's attempt to contrive factual issues "by relying on an affidavit when unfavorable deposition testimony shows that the assertion in the affidavit is unfounded." This Court suggested that this principle "is not limited to parties who make contradictory assertions. The principle that contradictory affidavits should be disregarded stands irrespective of the identity of the maker of the conflicting statements." Id.

The cited cases involved the filing of an affidavit after damaging deposition testimony had been given, whereas in the instant case, the affidavit of merit was filed with plaintiff's complaint before deposition testimony was taken. We believe that this is not a meaningful distinction and the same rationale applies. Dr. Trigg's affidavit of meritorious claim restated the pleadings and generally articulated the threshold of proof that defendant's breach of the standard of care was a proximate cause of plaintiff's damages. In contrast, at deposition, Dr. Trigg was subjected to cross-examination and responded to specific questions regarding defendant's failure to administer antibiotic treatment and to perform a bronchoscopy or lung biopsy. As the Barlow Court recognized, the utility of summary disposition would be diminished if a party could defeat summary disposition by filing an affidavit after testifying unfavorably at deposition. Barlow, supra at 250, 477 N.W.2d 133; Garmet, supra at 726, 197 N.W.2d 160. Indeed, in medical malpractice cases, a plaintiff is required to file an affidavit of meritorious claim by a health professional at the commencement of the action. M.C.L. § 600.2912d. In such cases, summary disposition would rarely, if ever, be warranted even if effective cross-examination of that person at deposition negates an element of the plaintiff's prima facie case.

Accordingly, we affirm the trial court's grant of summary disposition because plaintiff failed to show the existence of a genuine issue of material fact with regard to the question of causation.

III

In Docket No. 218386, plaintiff appeals the award of costs under MCR 2.403 (O)(1). Plaintiff contends that the court erred in awarding costs on the basis of her limited acceptance of the mediation award, MCR 2.403(L)(3). We agree.

A

The interpretation and application of court rules presents a question of law that is reviewed de novo. Grzesick v. Cepela, 237 Mich.App. 554, 559, 603 N.W.2d 809 (1999); Great Lakes Gas Transmission Ltd. Partnership v. Markel, 226 Mich.App. 127, 129, 573 N.W.2d 61 (1997). MCR 2.403(L)(3)(c) provides:

If a party makes a limited acceptance under subrule (L)(3)(b) and some of the opposing parties accept and others reject, for the purposes of the cost provisions of subrule (O) the party who made the limited acceptance is deemed to have rejected as to those opposing parties who accept.

In this case, the mediation evaluation awarded zero against Dr. Main and $75,000 against defendant. Plaintiff accepted the mediation evaluation as a limited acceptance under MCR 2.403(L)(3)(b)(i), conditioned on the acceptance of both Dr. Main and defendant. Dr. Main accepted the mediation evaluation, and defendant rejected it. We conclude that plaintiff's limited acceptance of the award does not constitute a rejection with respect to defendant because defendant did not accept the mediation evaluation.

The Supreme Court previously reversed a decision of this Court that affirmed mediation sanctions with regard to a limited acceptance, stating:

Under MCR 2.403(L)(3)(c), for the purposes of the costs provision of subrule (O), National Precast's limited acceptance is not deemed a rejection with regard to plaintiffs because plaintiffs did not accept the mediation panel's evaluation. [Baldasan v. Nat'l Precast, Inc., 451 Mich. 894, 550 N.W.2d 525 (1996).]

An order that is a final Supreme Court disposition of an application and that contains a concise statement of the applicable facts and reasons for the decision is binding precedent. See People v. Crall, 444 Mich. 463, 464, n. 8, 510 N.W.2d 182 (1993). We find the order in Baldasan precedent for our decision.

Even without the guidance of this precedent, we reach the same conclusion given the language and purpose of MCR 2.403. This Court should construe a court rule in accordance with the ordinary and approved usage of its language in light of the purpose the rule seeks to accomplish. Bush v. Mobil Oil Corp., 223 Mich.App. 222, 226, 565 N.W.2d 921 (1997). The Court should avoid construing a court rule in a manner that results in a part of the rule becoming nugatory or surplusage. Grzesick, supra at 560, 603 N.W.2d 809.

MCR 2.403(L)(3)(c) specifies that "the party who made the limited acceptance is deemed to have rejected as to those opposing parties who accept" (emphasis added). This part of the court rule would be rendered nugatory, contrary to the rules of construction, if the limited acceptance party was also deemed a rejecting party with respect to opposing parties who reject. Further, the purpose of the mediation sanction rule "is to encourage settlement and deter protracted litigation by placing the burden of litigation costs upon the party that required that the case proceed toward trial by rejecting the mediator's evaluation." Broadway Coney Island, Inc. v. Commercial Union Ins. Co. (Amended Opinion), 217 Mich.App. 109, 114, 550 N.W.2d 838 (1996). In this case, had defendant accepted the mediation evaluation, the litigation would have concluded, given plaintiff's prior limited acceptance. Thus, we conclude that under the language of MCR 2.403(L)(3)(c), a party who makes a limited acceptance of an award is deemed to have rejected it only with respect to those opposing parties who accepted, but not with respect to those who rejected, the award.

Accordingly, because plaintiff's conditional acceptance was not a rejection with respect to defendant, defendant was not entitled to mediation sanctions under MCR 2.403(O)(1). Therefore, the trial court erred in awarding defendant mediation sanctions.

B

In light of our determination that the circuit court erred in awarding mediation sanctions, we need not address plaintiff's remaining claims concerning the amount awarded and the form of the order.

Affirmed in part and reversed in part.

NEFF, P.J. (concurring in part and dissenting in part).

I respectfully dissent from the majority's decision to affirm the trial court's grant of summary disposition for defendant.

I

As noted by the majority, plaintiff's malpractice claim was premised on the theory that had defendant not been negligent, James more probably than not would have survived his infection, as Dr. Trigg stated in his affidavit:

Within a reasonable medical probability had the standard of care been followed, James Dykes would [have] had a greater then [sic] 50% chance of surviving the infectious process from which he suffered; thus, the violation from the standard of care is a proximate cause of the damages claimed by Plaintiff.

The circuit court found that plaintiff failed to establish causation because, contrary to his affidavit statement, Dr. Trigg testified during his deposition "that he could not say within a reasonable degree of medical certainty that a bronchoscopy or antibiotic treatment would have made a difference in the outcome and prolonged [James'] life." My review of Dr. Trigg's deposition testimony does not convince me that his answers to defense counsel's deposition questions defeat causation, as defendant contends and the majority concludes. I read the responses as more a reluctance to state his conclusions in terms of absolute certainties, rather than evidence that causation was lacking under the more probable than not standard.

During Dr. Trigg's deposition, he responded to defense counsel's specific questions, none of which addressed whether it was "more probable than not" that James would have survived his infection absent defendant's alleged negligence. Counsel queried Dr. Trigg whether there was any way of "knowing" whether, "if [James] had received anti-pseudomonas medication during the February 12 hospitalization, that he would have lived longer than April 2, 1992." Dr. Trigg responded that there was "no way of knowing that." I cannot conclude that this testimony defeats causation. The standard for causation in this instance is whether it is more likely than not that James would have survived the infectious process, i.e., a greater than fifty percent chance, not whether he definitively would have lived beyond a certain date, i.e., a one-hundred percent probability. For the same reason, I do not find the fact that Dr. Trigg could not opine concerning James' life expectancy dispositive with regard to the issue of causation.

Defense counsel queried Dr. Trigg analogously with regard to defendant's failure to perform a bronchoscopy or an open lung biopsy:

Q. [I]s it a fair statement to say that neither you nor I, as we sit here today, know what, if anything, a bronchoscopy would have revealed during that time [the February 7 to February 9, 1992 hospitalization]?

A. That's a fair statement.

Q. And is it also fair to say that because we don't know that, neither you nor I, or anyone can say within a reasonable degree of medical certainty that a bronchoscopy during that February 7 through 9, 1992 hospitalization would have made any difference in James Dykes' outcome and prolonged his life?

A. That's a fair statement.

* * *

Q. [I]s it fair to say that as we sit here today, neither you nor I can conclude, or anyone else, what a bronchoscopy and or an open lung biopsy would have revealed during the February 12 hospitalization within a reasonable degree of medical certainty? Is that a fair statement?

A. My clinical judgement and assessment is it would have revealed a bacterial problem. I think that it would have been very useful, but I can't know that for certain.[^[1]]

In view of the line of questioning, which speaks more to absolutes than probabilities, I strongly disagree that Dr. Trigg's deposition testimony defeats any link of causation between the diagnosis and treatment of James' respiratory infection and his ultimately succumbing to pseudomonas septicemia.

Finally, I cannot conclude that Dr. Trigg's testimony with regard to pseudomonas sepsis, in particular, defeats causation in this case.^[2] I recognize that the cause of death was determined to be pseudomonas septicemia. However, plaintiff's claim of malpractice was based on defendant's failure to properly diagnose and aggressively treat James' infection in the early stages, before it could progress to the stage that it was likely to be fatal, given his medical history. Dr. Trigg opined that James' condition made him particularly susceptible to bacterial infections, that his symptoms during the early February hospitalization indicated an acute bacterial infection, and that defendant should have acted accordingly. Dr. Trigg's affidavit statement is that, had defendant not violated the standard of care, James more likely than not would have survived the infectious process, i.e., there was a greater than fifty percent chance the infection would not have progressed to sepsis/septicemia. I cannot conclude from the record that plaintiff's theory is defeated by the fact that pseudomonas sepsis is more often than not a fatal infection for immunocompromised patients.

The record evidence in this case presents a close question with regard to the issue of proximate causation. However, the summary disposition standard requires that we view the evidence in a light most favorable to the nonmoving party. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). My reading of Dr. Trigg's deposition testimony leaves me unconvinced that it negates his affidavit statement that, had the standard of care been followed, James would have had a greater than fifty percent chance of surviving the infectious process. Where there is a genuine issue of material fact with regard to causation, summary disposition is improper. Id. at 454-455, 597 N.W.2d 28; Bilicki v. W T Grant Co., 382 Mich. 319, 323-326, 170 N.W.2d 30 (1969). I would reverse the order dismissing plaintiff's malpractice case and remand this matter to the trial court for further proceedings.

II

I fully concur in the reasoning and result reached by the majority with regard to the award of costs to defendant under MCR 2.403(L)(3).

NOTES

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

[1] Defendant Charles Main, M.D., was dismissed from the action by stipulation of the parties and is not involved in this appeal.

[2] The transplants were performed in Seattle, Washington. Upon release, James returned to defendant for aftercare treatment.

[3] Sepsis is defined as "the presence in the blood or other tissues of pathogenic microorganisms or their toxins." Dorland's Illustrated Medical Dictionary (29th ed), pp. 1623-1624.

[4] Septicemia, also called blood poisoning, is defined as a "systemic disease associated with the presence and persistence of pathogenic microorganisms or their toxins in the blood." Dorland's Illustrated Medical Dictionary, (29th ed), p. 1624. Plaintiff's brief describes pseudomonas septicemia as a severe bacterial infection.

[5] During oral argument of this appeal, there was some question whether Dr. Trigg's deposition was taken for discovery purposes or de bene esse to preserve his testimony. The deposition transcript unequivocally reflects that it was a discovery deposition.

[6] Our dissenting colleague characterizes defense counsel's questions as eliciting a response in terms of absolute certainties, "i.e., a one-hundred percent probability," post at 448 and interprets Dr. Trigg's responses as "a reluctance to state his conclusions in terms of absolute certainties," post at 448. We note that defense counsel's questions did not seek answers from Dr. Trigg in terms of absolute certainty. Rather, he was asked if he could state within a reasonable degree of medical certainty whether defendant's failure to properly diagnose and treat James affected the outcome or James' life expectancy. Dr. Trigg was unable to do so.

[7] In her response to defendant's motion for summary disposition, plaintiff relied on Dr. Trigg's testimony that, in his opinion, James' infectious process was more likely than not bacterial in nature. This question of probabilities is not the relevant inquiry. In order to show a genuine issue of material fact regarding causation, plaintiff must offer evidence that it is more likely than not that but for defendant's conduct, a different result would have obtained. Weymers, supra at 647-648, 563 N.W.2d 647-48.

[1] Dr. Trigg's response to counsel's next question further convinces me that his answer to the previous question was an expression of his reluctance to state an absolute certainty, rather than an inability to provide the vital link of causation:

Q: Do you have any idea what bacteria it would have identified?

A: No. Except that there was a sputum culture obtained in early February which showed on gram stain numerous gram-negative bacilli and neutrophils. And there was a dermatology consultation which suggested a pseudomonas-like rash during this hospitalization. So it certainly was within the differential that a pseudomonas infection could be found.

[2] Dr. Trigg stated: "I think that patients who have compromised immune systems that are [sic] following a bone marrow transplant who develop a pseudomonas sepsis have a greaterthan-fifty-percent chance of dying of their infection, but it's not a hundred percent chance."