Edwards v. Metro. Hosp.
| Decision Date | 20 December 2016 |
| Docket Number | No. 330216,330216 |
| Parties | CLARK EDWARDS, Plaintiff-Appellant, v. METROPOLITAN HOSPITAL, doing business as METRO HEALTH HOSPITAL, doing business as METRO HEART AND VASCULAR, and ERIC WALCHAK, D.O., Defendants-Appellees, and JIHAD MUSTAPHA, M.D., K. THOMAS CROCKER, D.O., P.C., and THOMAS CROCKER, D.O., Defendants. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Kent Circuit Court
Before: WILDER, P.J., and MURPHY and O'BRIEN, JJ.
Plaintiff Clark Edwards appeals as of right the trial court's order granting summary disposition in favor of defendants Metropolitan Hospital (Metro) and Eric Walchak, D.O., in this medical malpractice action. The trial court ruled that plaintiff did not have an expert witness who could competently testify with respect to causation; therefore, absent the ability to establish the necessary causal link at trial, Metro and Dr. Walchak were entitled to summary dismissal of plaintiff's lawsuit. We affirm.
Plaintiff filed his medical malpractice action on May 30, 2014. He alleged that in June 2010, he had been "diagnosed with right femoral and right popliteal vein DVT[,]" or deep vein thrombosis in his right leg, and was prescribed Coumadin. Plaintiff contended that in September 2010, he "underwent an unsuccessful attempt at vascular intervention, including, but not limited to, an attempted cannulation and venogram of popliteal and posterior tibial veins." It was alleged that in October 2010, Dr. Walchak, an interventional cardiologist, performed "a diagnostic venogram of [plaintiff's] right lower extremity with angioplasty" at Metro. According to the complaint, "[n]o significant redirection of blood flow was noted through the balloon" and "[b]lood was noted to empty from [plaintiff's] right lower extremity via a large collateral distal to the totally occluded deep femoral vein." After the procedure, plaintiff was instructed to continue taking Coumadin, along with aspirin.
Plaintiff alleged that in September 2011, he was evaluated by a cardiologist, defendant Jihad Mustapha, M.D., concerning pain and swelling in plaintiff's right leg, and that Dr. Mustapha improperly recommended surgical intervention. Plaintiff maintained that on November 28, 2011, Dr. Mustapha "attempted a right lower extremity venous intervention via the popliteal vein" at Metro, but the procedure was unsuccessful, "as Dr. Mustapha was unable to cross the thrombus." Plaintiff asserted that he suffered injury to tissue and structures during the surgery and that, directly following the procedure, his "right popliteal area was very tender[] and painful with first ambulation" and there was some swelling and bruising after pressure dressing was removed. According to plaintiff, the next morning, November 29, 2011, "a small amount of bruising at the puncture site was noted behind his right knee, as well as edema[,]" and he was discharged without further treatment.
Plaintiff alleged that pain and swelling increased after he was discharged, so he went to his local hospital where an ultrasound was performed, which "demonstrated a hematoma in the popliteal space." Plaintiff maintained that he was transferred to Metro for further management on December 2, 2011, and was admitted under the care of Dr. Walchak, who "recommended altering [plaintiff's] anticoagulation medication." The complaint indicated that around noon on December 3, 2011, Dr. Walchak noted that plaintiff was complaining of foot numbness. And although plaintiff was still able to move his toes, it was painful to do so. Plaintiff alleged that "Dr. Walchak failed to order a vascular surgery consultation" and that plaintiff's condition continued to worsen, with an intensification of pain.
At 5:00 a.m. on December 4, 2011, defendant Dr. Thomas Crocker, an orthopedic surgeon, was consulted and, as alleged by plaintiff, Dr. Crocker contacted a Dr. Collier, "whom Dr. Crocker incorrectly and negligently believed was [plaintiff's] attending physician." But Dr. Crocker did recommend "a vascular surgery consult," believing that orthopedic expertise might not be appropriate. Plaintiff alleged that at 9:40 a.m. on December 4, 2011, Dr. Crocker came into the hospital and realized that Dr. Collier was not plaintiff's attending doctor. Allegedly, Dr. Crocker noted that sensation in plaintiff's right leg was slightly diminished to touch, that his motor function was within normal limits, and that his leg was tense. Plaintiff alleged that a vascular surgery consult was finally obtained and that at 11:00 a.m. on December 4 he was taken to the operating room, where he "underwent a three-compartment fasciotomy[.]"1 In the complaint, plaintiff maintained that he now suffers from poor foot sensation, with "minimaldorsiflexion," that he has "foot drop," that he suffers from limited mobility, that he is greatly limited in regard to daily activities, that he requires assistance with household tasks, and that his quality of life has been greatly reduced.
Count I of the complaint alleged ordinary and medical negligence by Dr. Mustapha, mainly arising out of and connected to the surgery performed on plaintiff on November 28, 2011. Count II alleged ordinary negligence by the nursing staff involved in plaintiff's care. Count III alleged ordinary and medical negligence by Dr. Walchak, chiefly arising out of his failure to order a vascular surgery consultation on December 3, 2011, after seeing plaintiff around noon, which would have led to a diagnosis of compartment syndrome and an emergency fasciotomy on the third, as opposed to the next day when the fasciotomy was actually performed.2 Ultimately, it is this claim against Dr. Walchak that is the subject of this appeal. Count V3 alleged ordinary negligence by Dr. Crocker regarding the mix-up relative to the identification of plaintiff's attending physician and any delay in plaintiff's treatment. And count VI alleged ordinary and medical negligence by Metro on theories of direct and vicarious liability. Attached to the complaint, as required by MCL 600.2912d, was an affidavit of merit executed by Dr. Brian Swirsky, who averred that he "was board certified in the specialty of cardiology[] and spent the majority of [his] professional time practicing in that specialty." Dr. Swirsky's affidavit set forth the purported standard of care applicable to Drs. Mustapha and Walchak4 and the numerous acts or failures to act that comprised the alleged breaches or violations of the standard of care. With respect to causation, Dr. Swirsky averred as follows relative to both doctors:
As a consequence of the violations of the standard of care outlined above, [plaintiff] developed a compartment syndrome which prevented normal circulation in his lower extremity and damaged his nerves. Due to the delay in treatment, the compartment syndrome caused irreversible neurological damage. Furthermore, had the improper surgery not been performed in the first place [by Dr. Mustapha], [plaintiff] would not have developed compartment syndrome, foot drop, and the other complications. He required surgery and extensivehospitalization and rehabilitation. He now suffers foot drop and limited mobility as well as discomfort and pain. All of these conditions were proximately caused by the violations of the standards of care, as outlined above.
In November 2014, Dr. Mustapha and Metro jointly filed a partial motion for summary disposition under MCR 2.116(C)(7), arguing that plaintiff's claims against Dr. Mustapha and those against Metro, as predicated on Metro's alleged vicarious liability for Dr. Mustapha's actions, were time-barred under the applicable statute of limitations. In December 2014, the trial court granted that motion for summary disposition in regard to all claims that accrued before or on November 28, 2011, in relation to Dr. Mustapha. This ruling has not been appealed by plaintiff. In February 2015, Dr. Crocker, as well as his P.C., filed a motion for summary disposition, contending that the claims against them sounded in medical malpractice and not ordinary negligence and, therefore, all of the procedural requirements pertaining to a medical malpractice action, e.g., the filing of an affidavit of merit, had to be satisfied, but there was no compliance. Metro joined in the motion to the extent that its vicarious liability was based on Dr. Crocker's actions. Also in February 2015, Dr. Walchak, Dr. Mustapha, and Metro filed a motion for partial summary disposition, arguing that the claims of ordinary negligence made against Drs. Walchak and Mustapha, Metro's nursing staff, and Metro directly could not be sustained, as they actually sounded in medical malpractice. In April 2015, the trial court issued an opinion and order on the two February motions for summary disposition concerning ordinary versus medical negligence, agreeing that all of plaintiff's claims sounded solely in medical negligence; there were no viable ordinary negligence claims. This ruling, which is not being appealed, resulted in the dismissal of counts II and V, leaving standing only the medical malpractice claims against Dr. Mustapha that were not time-barred, if any, the medical malpractice claims against Dr. Walchak, and the medical malpractice claims against Metro (direct and vicarious liability theories).
In May 2015, Dr. Mustapha filed an unchallenged affidavit of non-involvement in plaintiff's care and treatment pursuant to MCL 600.2912c relative to that period of time that fell within the two-year statute of limitations, and the trial court thus dismissed any lingering claims against Dr. Mustapha. This ruling is not being appealed. In July 2015, plaintiff filed a motion for leave to file and serve an expert witness list, given that plaintiff had failed to do so by January 31, 2015, six months earlier, as required by the trial court's scheduling order.5 In the motion, plaintiff asserted that the filing and service failure...
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