Dykes v. William Beaumont Hosp.

• Decision Date: 06 September 2001
• Docket Number: Docket No. 218386.,Docket No. 214284
• Citation: 246 Mich. App. 471,633 N.W.2d 440
• Parties: 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.
• Court: Court of Appeal of Michigan — District of US

633 N.W.2d 440

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,¹ 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 defendants² 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.³

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.⁴ 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.⁵

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,⁶ 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.⁷ 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 647.⁸

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.' "...