Ensink v. Mecosta County General Hosp., Docket No. 247220.

CourtCourt of Appeal of Michigan (US)
Writing for the CourtOWENS, J.
Citation687 N.W.2d 143,262 Mich. App. 518
PartiesGregory ENSINK and Patricia Ensink, Plaintiffs-Appellants, v. MECOSTA COUNTY GENERAL HOSPITAL, Paul Rehkoph, M.D., and Michigan Emergency Physicians, LLP, Defendants-Appellees.
Docket NumberDocket No. 247220.
Decision Date01 September 2004

687 N.W.2d 143
262 Mich.
App. 518

Gregory ENSINK and Patricia Ensink, Plaintiffs-Appellants,
MECOSTA COUNTY GENERAL HOSPITAL, Paul Rehkoph, M.D., and Michigan Emergency Physicians, LLP, Defendants-Appellees

Docket No. 247220.

Court of Appeals of Michigan.

Submitted April 15, 2004, at Grand Rapids.

Decided June 17, 2004, at 9:10 a.m.

Released for Publication September 1, 2004.

687 N.W.2d 144
Gruel, Mills, Nims & Pylman, L.L.P. (by Norman H. Pylman and Brion J. Brooks), Grand Rapids, for the plaintiffs

687 N.W.2d 145
Smith Haughey Rice & Roegge (by William R. Jewell), Grand Rapids, for Mecosta County General Hospital

Aardema, Whitelaw & Sears-Ewald, P.L.L.C. (by Robert B. Aardema), Ada, for Paul Rehkoph, M.D., and Michigan Emergency Physicians, LLP.

Before: WHITE, P.J., and MARKEY and OWENS, JJ.


Plaintiffs appeal as of right from the orders granting summary disposition to defendants in this medical malpractice lawsuit that were entered by the trial court pursuant to MCR 2.116(C)(10). We affirm the trial court on alternative grounds because we are required to do so by our previous decision in Fulton v. Beaumont Hospital, 253 Mich.App. 70, 655 N.W.2d 569 (2002).

I. Factual and procedural background

Plaintiffs1 alleged2 that at approximately 10:30 a.m. on July 15, 1998, plaintiff Gregory Ensink suffered an acute stroke.3 Patricia Ensink called 911 and the emergency medical service (EMS) responded, but despite her request that they take plaintiff to Spectrum Health in Grand Rapids, EMS transported him to defendant Mecosta County General Hospital (Mecosta), which was closer. According to plaintiffs, Gregory arrived at Mecosta at 11:05 a.m. and was triaged at 11:20 a.m., after which he was taken to the emergency room. Plaintiff was examined by defendant Paul Rehkoph, M.D.,4 an emergency room physician at Mecosta, who ordered a CT (computerized arial tomography) head scan. The scan was completed at 12:07 p.m. According to plaintiffs, the scan revealed that plaintiff's stroke was caused by a blood clot.

Plaintiffs alleged that Mecosta had available a supply of tissue plasminogen activator (t-PA) — a drug that had been approved by the Food and Drug Administration (FDA) for use in destroying blood clots in stroke victims. Plaintiffs contended that Dr. Rehkoph made two "major blunders": he failed to administer t-PA within the required three-hour window following the stroke and he failed to transfer plaintiff to Spectrum Health in a timely manner so that t-PA could possibly have been administered in that facility within the three-hour window. Plaintiffs claimed that a nurse at Mecosta asked Dr. Rehkoph if he intended to administer t-PA, but that he declined to do so. They further claimed that Dr. Rehkoph spoke with Dale McNinch, M.D., at Spectrum Health, who informed Dr. Rehkoph that "it appeared

687 N.W.2d 146
that [plaintiff] would be a candidate for t-PA and asked if they gave it to patients up there." Plaintiffs finally asserted that Eugene Wiley, M.D., a physician who practiced at Mecosta, was prepared to testify that he would have recommended administration of t-PA to plaintiff if he had been asked. According to plaintiffs, Dr. Wiley would also testify that t-PA is "the only thrombolytic treatment [ ] that [is] FDA-approved for treatment of ischemic stroke."5

Plaintiff was eventually transported to Spectrum Health, but he did not arrive until 2:16 p.m., after the three-hour window for the administration of t-PA had elapsed. Plaintiff alleged that because of defendants' negligence, he has suffered paralysis that has left him disabled and unable to work. Specifically, plaintiffs alleged that defendants were negligent and committed malpractice in a number of particulars. For the purposes of this appeal, the pertinent allegation of malpractice claimed that Dr. Rehkoph failed "to timely administer TPA [sic t-PA] to Gregory Ensink within three hours of the onset of his symptoms."6

Mecosta moved for summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff had failed to demonstrate that the failure to administer t-PA more probably than not caused the loss of an opportunity to achieve a better result, and also claiming that plaintiff could not recover because his damages were too speculative. Defendants Dr. Rehkoph and Michigan Emergency Physicians filed a concurrence with Mecosta's motion for summary disposition.

Plaintiffs responded that the testimony of their expert witness, Steven Levine, M.D., established that it was more likely than not that administration of t-PA within the three-hour window would have had some effect on plaintiff's condition — although Dr. Levine could not estimate the extent of that effect. Plaintiffs also argued that, because Dr. Levine's testimony established defendants' liability, it was defendants' responsibility to "bear the burden of uncertainty as to the amount of damages."

The trial court concluded that plaintiffs had established a sufficient case regarding the likelihood of a better result to survive the summary disposition motion, but also concluded that summary disposition should be granted because, according to plaintiffs' expert's testimony, the damages were entirely speculative. Following the entry of orders granting summary disposition and dismissing the case with regard to all defendants, plaintiffs have appealed as of right.

II. Standard of review

This Court reviews de novo a trial court's decision regarding a motion for summary disposition. Smith v. Globe Life Ins. Co., 460 Mich. 446, 454, 597 N.W.2d 28 (1999). Defendant's motion for summary disposition was brought under MCR 2.116(C)(10). A C(10) motion tests the factual support of a plaintiff's claim. Smith, supra at 454, 597 N.W.2d 28. As summarized by our Supreme Court in Quinto v. Cross & Peters Co., 451 Mich. 358, 362, 547 N.W.2d 314 (1996):

In reviewing a motion for summary disposition brought under MCR
687 N.W.2d 147
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. MCR 2.116(C)(10), (G)(4).

III. Speculative damage claim

Plaintiffs first contend that the trial court erred by concluding that their damage claim was too speculative. Plaintiffs argue that once their expert witness established the fact of plaintiff's injury by defendants' negligence and a range of possible damage, the uncertainty of the damages was something that had to be borne by defendants. Defendants counter that plaintiff's expert, Dr. Levine, admitted he could not say how much plaintiff's condition would have improved, only that it was more likely than not that there would be "some improvement." Defendants have therefore claimed that damages are entirely speculative because, absent testimony concerning how much plaintiff's condition would have improved, there was no basis from which the jury could rationally estimate the amount plaintiff was damaged by the failure to administer t-PA.

"Recovery is not permitted in a tort action for remote, contingent, or speculative damages." Theisen v. Knake, 236 Mich.App. 249, 258, 599 N.W.2d 777 (1999), citing Law Offices of Lawrence J Stockler, PC v. Rose, 174 Mich.App. 14, 33, 436 N.W.2d 70 (1989). A more complete statement of this point of law was made in Sutter v. Biggs, 377 Mich. 80, 86-87, 139 N.W.2d 684 (1966):

The general rule, expressed in terms of damages, and long followed in this State, is that in a tort action, the tort-feasor is liable for all injuries resulting directly from his wrongful act, whether foreseeable or not, provided the damages are the legal and natural consequences of the wrongful act, and are such as, according to common experience and the usual course of events, might reasonably have been anticipated. Remote, contingent, or speculative damages are not considered in conformity to the general rule. Van Keulen & Winchester Lumber Co. v. Manistee & Northwestern Railroad Co., 222 Mich. 682, 193 N.W. 289 (1923); Woodyard v. Barnett, 335 Mich. 352, 358, 56 N.W.2d 214 (1953); and Fisk v. Powell, 349 Mich. 604, 613, 84 N.W.2d 736 (1957). See, also, McLane, Swift & Co. v. Botsford Elevator Co., 136 Mich. 664, 99 N.W. 875 (1904); and Cassidy v. Kraft-Phenix Cheese Corp., 285 Mich. 426, 280 N.W. 814 (1938).
Further, to render a wrongdoer liable in damages in a tort action where the connection is not immediate between the injurious act and the consequences, such nearness in the order of events and closeness in the relation of cause and effect must subsist, so that the influence of the injurious act would predominate over that of other causes, and concur to produce the consequences or be traceable to those causes. Woodyard v. Barnett, supra.

Additionally, in Wendt v. Auto Owners Ins. Co., 156 Mich.App. 19, 26, 401 N.W.2d 375 (1986), this Court cautioned that "questions of what damages might be reasonably anticipated is a question better left to the factfinder." In Hofmann v. Auto

687 N.W.2d 148
Club Ins. Ass'n, 211 Mich.App. 55, 108, 535 N.W.2d 529 (1995), this Court stated
A party asserting a claim has the burden of proving its damages with reasonable certainty. S.C. Gray, Inc. v. Ford Motor Co., 92 Mich.App. 789, 801, 286 N.W.2d 34 (1979). Although damages based on speculation or conjecture are not recoverable, Sutter v. Biggs, 377 Mich. 80, 86, 139 N.W.2d 684 (1966), damages are not speculative merely because they cannot be ascertained with mathematical precision. Godwin v. Ace Iron & Metal Co., 376 Mich. 360, 368, 137 N.W.2d 151 (1965). It is sufficient if a reasonable basis for computation

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