Cates v. Fitwell Physical Therapy

Decision Date23 November 2021
Docket Number354136
CourtCourt of Appeal of Michigan — District of US

CHARLES CATES, Plaintiff-Appellant,


No. 354136

Court of Appeals of Michigan

November 23, 2021


Monroe Circuit Court LC No. 19-141998-NH

Before: Borrello, P.J., and Jansen and Boonstra, JJ.


Plaintiff appeals as of right the order granting defendants' motion for summary disposition. We affirm.


This medical malpractice case arises from a shoulder reinjury plaintiff alleges was caused while he was receiving physical therapy treatment at defendant, Fitwell Physical Therapy. Plaintiff originally injured his shoulder after moving a television in January 2014. In January 2016, Jerome Ciullo, M.D., performed surgery to repair the injury. After the January 2016 surgery, plaintiff was prescribed physical therapy.

Plaintiff attended several physical therapy sessions at Fitwell, where he worked on stretching and strengthening his shoulder. On May 23, 2016, defendant, Susan Haubenstricker, P.T., was performing therapy services with plaintiff, when she was drawn to an adjacent area to work with another patient. Haubenstricker instructed defendant, Rachel Fry, an unlicensed rehabilitation technician, to continue plaintiff's exercises. Fry told plaintiff to lay on his stomach with his hands pointed toward his feet. Fry placed a one-pound weight in each of plaintiff's hands, and told him to lift his hands toward the ceiling. Plaintiff was unable to lift the weights, and suddenly became nauseous and overcome with pain. Plaintiff sat a few minutes before continuing his exercises. At the end of plaintiff's therapy session, Fry gave plaintiff an icepack for his shoulder before plaintiff drove himself home.


After the May 23, 2016 therapy session, plaintiff said his shoulder became worse. He eventually needed a second shoulder surgery performed, again, by Dr. Ciullo. In November 2018, plaintiff filed the complaint in this case. Defendants moved for a qualified protective order under the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 USC 1320d et seq., which the trial court granted. Before the close of discovery, plaintiff sought the deposition testimony of Dr. Ciullo; however, the deposition was cancelled on the day it was scheduled. Defendants later obtained an affidavit from Dr. Ciullo, which stated, "[i]t is my professional opinion that [plaintiff] did not suffer a recurrence of his left shoulder labrum tear as a result of the exercises he was engaging in at Fitwell Physical Therapy on May 23, 2016." Soon after defendants moved for summary disposition, plaintiff moved to adjourn to obtain expert testimony. The trial court granted defendants' motion for summary disposition, in part, because plaintiff failed to present expert testimony showing defendants proximately caused the reinjury to his shoulder.[1]The trial court did not address plaintiff's motion to adjourn. This appeal followed.


Plaintiff makes three arguments supporting his contention that the trial court erroneously granted defendants' motion for summary disposition. Plaintiff argues that the trial court prematurely granted summary disposition where the purpose of plaintiff's motion to adjourn was so plaintiff could seek an expert witness to support his case. Plaintiff also contends the trial court engaged in an inappropriate analysis when it concluded that plaintiff's claims were properly classified as medical malpractice. Finally, plaintiff asserts the trial court made an evidentiary error when it considered Dr. Ciullo's affidavit. According to plaintiff, the affidavit was not "protected health information," and therefore, should not have factored into the trial court's decision to grant summary disposition. We disagree.


Most of plaintiff's arguments are preserved for our review. However, plaintiff's argument regarding the propriety of Dr. Ciullo's affidavit is not preserved. "To preserve an evidentiary error for appeal, a party must object at trial on the same ground that it presents on appeal." Nahshal v Fremont Ins Co, 324 Mich.App. 696, 709-710; 922 N.W.2d 662 (2018). Plaintiff argues on appeal that the trial court should not have relied on Dr. Ciullo's affidavit because the information contained in the affidavit was not "protected health information." Plaintiff did not present this argument to the trial court; therefore, it is unpreserved. Unpreserved claims of evidentiary error are reviewed for plain error affecting substantial rights. Meagher v Wayne State Univ, 222 Mich.App. 700, 724; 565 N.W.2d 401 (1997). "Plain error occurs at the trial court level if (1) an error occurred (2) that was clear or obvious and (3) prejudiced the party, meaning it affected the outcome of the lower court proceedings." Duray Dev, LLC v Perrin, 288 Mich.App. 143, 150; 792 N.W.2d 749 (2010).

Plaintiff also contests the trial court's decision to disregard his motion to adjourn to extend discovery. "A trial court's decision on [a] discovery motion is reviewed for an abuse of


discretion." Szpak v Inyang, 290 Mich.App. 711, 713; 803 N.W.2d 904 (2010). "The decision whether to allow a party to add an expert witness is within the discretion of the trial court." Tisbury v Armstrong, 194 Mich.App. 19, 20; 486 N.W.2d 51 (1991). "An abuse of discretion occurs when the trial court's decision falls outside the range of reasonable and principled outcomes." Cadwell v Highland Park, 324 Mich.App. 642, 649; 922 N.W.2d 639 (2018) (quotation marks and citation omitted).

Further, "[t]his Court reviews de novo whether a trial court properly granted a motion for summary disposition." Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich.App. 362, 369; 775 N.W.2d 618 (2009). Though defendants' motion for summary disposition was brought under MCR 2.116(C)(8) and (10), the trial court granted summary disposition as to the medical malpractice claim under MCR 2.116(C)(10). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003).

In reviewing a motion for summary disposition brought under MCR 2.116(C)(10), a trial court considers affidavits pleadings, depositions, admissions, and documentary evidence filed in the action or submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. A trial court may grant a motion for summary disposition under MCR 2.116(C)(10) if the affidavits or other documentary evidence show that there is no genuine issue in respect to any material fact, and the moving party is entitled to judgment as a matter of law. [Quinto v Cross and Peters Co, 451 Mich. 358, 362; 547 N.W.2d 314 (1996).]

"Where the burden of proof at trial on a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere allegations or denials in pleadings, but must go beyond the pleadings to set forth specific facts showing that a genuine issue of material fact exists." Lowrey v LMPS & LMPJ, Inc, 500 Mich. 1, 7; 890 N.W.2d 344 (2016) (quotation marks and citations omitted). "If the opposing party fails to present documentary evidence establishing the existence of a material factual dispute, the motion is properly granted." Id. (quotation marks and citations omitted).

Finally, "[w]hen interpreting court rules, we apply principles of statutory interpretation." Richards v McNamee, 240 Mich.App. 444, 451; 613 N.W.2d 366 (2000) (quotation marks and citation omitted).

[W]e look to the plain language of the court rule in order to ascertain its meaning and the intent of the rule must be determined from an examination of the court rule itself and its place within the structure of the Michigan Court Rules as a whole. If the rule's language is plain and unambiguous, then judicial

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