Badalamenti v. William Beaumont Hosp.-Troy

• Decision Date: 01 December 1999
• Docket Number: Docket No. 207149.,Docket No. 207038
• Parties: Salvatore P. BADALAMENTI, Plaintiff-Appellee/Cross-Appellant, v. WILLIAM BEAUMONT HOSPITAL-TROY, David H. Forst, M.D., P.C., David H. Forst, M.D., and Smiley, Forst & Associates, P.C., jointly and severally, Defendants-Appellants/Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

602 N.W.2d 854

237 Mich. App. 278

Salvatore P. BADALAMENTI, Plaintiff-Appellee/Cross-Appellant, v. WILLIAM BEAUMONT HOSPITAL-TROY, David H. Forst, M.D., P.C., David H. Forst, M.D., and Smiley, Forst & Associates, P.C., jointly and severally, Defendants-Appellants/Cross-Appellees.

Docket Nos. 207038, 207149.

Court of Appeals of Michigan.

Submitted April 13, 1999, at Detroit.

Decided August 20, 1999, at 9:15 a.m.

Released for Publication December 1, 1999.

Lopatin, Miller, Freedman, Bluestone & Herskovic, P.C. (by Richard E. Shaw), Southfield, and Fieger, Fieger & Schwartz (by Geoffrey N. Fieger), Southfield (Bendure & Thomas, by Mark R. Bendure, of Counsel), Detroit, for Salvatore P. Badalamenti.

Dickinson Wright PLLC (by Barbara Hughes Erard and Shari M. Borsini), Detroit, for William Beaumont Hospital-Troy.

Fraser Trebilcock Davis & Foster, P.C. (by Graham K. Crabtree and Mark A. Bush), Lansing, for David H. Forst, M.D., and Smiley, Forst & Associates, P.C.

Before: BANDSTRA, C.J., and MARKEY and TALBOT, JJ.

MARKEY, J.

In this action for medical malpractice, defendants appeal by right the amended judgment entered on the jury verdict for plaintiff in the amount of $15 million and from the trial court's postjudgment order denying defendants' motions for judgment notwithstanding the verdict (JNOV), a new trial, and remittitur. Plaintiff cross appeals by right the trial court's determination of the amount of damages awarded by the jury in its verdict for plaintiff. The appeals were consolidated. We vacate the judgment in favor of plaintiff and remand for entry of JNOV for defendants because there is legally insufficient evidence to support the verdict for plaintiff. We further hold that even if defendants were not entitled to entry of a judgment on their behalf, defendants would be entitled to a new trial because the misconduct of plaintiff's lead counsel at trial denied defendants a fair trial.

I

It was plaintiff's theory at trial that defendant Dr. David Forst, a cardiologist, negligently failed to diagnose and appropriately treat plaintiff for cardiogenic shock,¹ particularly that he failed to appropriately treat plaintiff's low blood pressure between 4:00 p.m. and 6:00 p.m. following plaintiff's admission to defendant William Beaumont Hospital-Troy for a heart attack on March 16, 1993. Plaintiff contended that as a result of Dr. Forst's negligent treatment of plaintiff for cardiogenic shock, gangrene developed in plaintiff's extremities from loss of circulation to and oxygenation of the tissues in these areas, which ultimately resulted in amputation of plaintiff's fingers, thumbs, and both legs at the knee.

Defendants maintained below that plaintiff did not suffer from cardiogenic shock and that the conditions that ultimately required the amputation of his extremities resulted from an unexpected, rare, and severe sensitivity reaction to the streptokinase² that plaintiff received in the hospital's emergency center. It was defendants' position that once the reaction to streptokinase had set in, they were virtually powerless to stop the ensuing, cascading events.

II Judgment Notwithstanding the Verdict

Defendants claim that the trial court erred in issuing its ruling on their motion for JNOV without making any findings regarding the legal sufficiency of the evidence supporting plaintiff's claim, specifically the testimony of plaintiff's only expert, Dr. Daniel Wohlgelernter, that plaintiff suffered from cardiogenic shock. Defendants further claim that the trial court erred in denying their motion for JNOV because the evidence was legally insufficient to support plaintiff's claim for medical malpractice. We agree with both of defendants' claims.

A

At the hearing on defendants' postjudgment motions, the court made prefatory remarks regarding defendants' motion for a new trial based on misconduct by plaintiff's lead counsel and then ruled as follows on defendants' motion for JNOV:

But I'm not ruling on [defendants' claims of denial of a fair trial on account of plaintiff's counsel's misconduct during trial]. I'm ruling on what happened here with the jury, and the jury — another jury certainly may not have come back the same way. If it had been tried before the bench, it may not have come back the same way. But it went to the jury, and based upon what the jury did, I can merely indicate to the defendants in this matter that their next step is — and I think I said this a few motions ago — that this Court is through with the matter. It's headed — if you're going to go to somewhere else, and I hate to try to be humorous or anything — but it's 67 miles from here. It's not this Court. This Court has done all it can do, based upon — some of these points may be fine. It's been well-briefed. But I'm not going to grant any relief to the defendants in this matter, and I so rule.

Pursuant to MCR 2.610(B)(3), in ruling on a motion for JNOV, "the court must give a concise statement of the reasons for the ruling, either in a signed order or opinion filed in the action, or on the record." Although MCR 2.610(B)(3) does not require formal findings of fact and conclusions of law as in a bench trial under MCR 2.517, in ruling on defendants' motion for JNOV the court was required to examine the evidence presented at trial in the light most favorable to plaintiff, apply the law to the facts, and state whether the evidence presented at trial was legally sufficient to support plaintiff's claim of medical malpractice. Forge v. Smith, 458 Mich. 198, 204, 580 N.W.2d 876 (1998); Pontiac School Dist. v. Miller, Canfield, Paddock & Stone, 221 Mich.App. 602, 612, 563 N.W.2d 693 (1997). Here, the court inappropriately directed its consideration solely to the jury's ultimate finding with regard to the evidence, rather than to the sufficiency of the evidence in support of plaintiff's claim. See In re Cotcher's Estate, 274 Mich. 154, 162, 264 N.W. 325 (1936).

Despite the trial court's apparent failure to engage in an appropriate review of the evidence in deciding defendants' motion and to issue a ruling accordingly, our review of this issue is not impeded. We conduct review de novo of the evidence presented at trial to determine if the trial court clearly erred in denying defendants' motion for JNOV. Forge, supra at 204, 580 N.W.2d 876. Our resolution of this issue turns on application of the facts to the law and on the evidence adduced, and we view all legitimate inferences from the evidence in the light most favorable to plaintiff. Id. Only if the evidence so viewed fails to establish a claim as a matter of law is JNOV appropriate. Id.

B

A plaintiff's theory in a medical malpractice case must be pleaded with specificity and the proofs must be limited in accordance with the theories pleaded. MCR 2.111(B)(1); Weymers v. Khera, 454 Mich. 639, 654-655, 563 N.W.2d 647 (1997); Dacon v. Transue, 441 Mich. 315, 490 N.W.2d 369 (1992); Simonelli v. Cassidy, 336 Mich. 635, 59 N.W.2d 28 (1953). It is important to highlight the fact that in this case the court's pretrial order limited plaintiff's claim to the allegation that Dr. Forst's negligent failure to diagnose and treat plaintiff for cardiogenic shock caused plaintiff's injuries. Plaintiff specifically notes on appeal that Dr. Wohlgelernter presented his liability theory and that plaintiff did not claim any breach of a standard of care other than what had been pleaded. To establish that Dr. Forst was negligent in diagnosing or treating plaintiff for cardiogenic shock, it was encumbent on plaintiff to first prove that plaintiff in fact suffered from cardiogenic shock on March 16, 1993, during Dr. Forst's care of plaintiff. Dr. Wohlgelernter was the sole expert witness plaintiff offered to establish that fact. No other expert witness at trial testified that plaintiff was in cardiogenic shock on March 16, 1993.

In Skinner v. Square D Co., 445 Mich. 153, 162-170, 516 N.W.2d 475 (1994), a products liability case, our Supreme Court clarified what is required to establish cause in fact. Referencing Prosser & Keeton, Torts (5th ed.), § 41, p. 266, the Court stated that "[t]he cause in fact element generally requires showing that `but for' the defendant's actions, the plaintiff's injury would not have occurred." Skinner, supra at 163, 516 N.W.2d 475. Our Supreme Court explained that "[t]o be adequate, a plaintiff's circumstantial proof must facilitate reasonable inferences of causation, not mere speculation," id. at 164, 516 N.W.2d 475, and reaffirmed that "the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred." Id. at 164-165, 516 N.W.2d 475 (emphasis added). Our Supreme Court noted that it has consistently applied this threshold evidentiary standard of factual causation in negligence cases:

"The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." [Id. at 165, 516 N.W.2d 475; citations omitted.]

Accord Weymers, supra at 647-648, 563 N.W.2d 647 (a medical malpractice case). The Supreme Court in Skinner also concurred with the observation made in 57A Am Jur 2d, Negligence, § 461, p. 442, that negligence is not established if the evidence lends equal support to inconsistent conclusions or is equally consistent with contradictory hypotheses. Skinner, supra at 166, 516 N.W.2d 475.

This Court has held that an expert's opinion is objectionable where it is based on assumptions that are not in accord with the established facts. Green v. Jerome-Duncan Ford, Inc., 195 Mich.App. 493, 499, 491...