Fulton v. Pontiac General Hospital, Docket No. 225174.

• Citation: 253 Mich. App. 70,655 N.W.2d 569
• Decision Date: 07 January 2002
• Docket Number: Docket No. 225174.
• Parties: Paul FULTON, Personal Representative of the Estate of Julie Fulton, Deceased, Plaintiff-Appellee, and Attorney General, Department of Community Health, and Blue Cross Blue Shield, Intervenors, v. Pontiac General Hospital, d/b/a North Oakland Medical Centers, and Dr. Deborah Margules Eldridge, Defendants, and WILLIAM BEAUMONT HOSPITAL, Dr. T. Kuntzman, Dr. J. Watts, and Stephen Peters, Defendants-Appellants.
• Court: Court of Appeal of Michigan (US)

655 N.W.2d 569

253 Mich. App. 70

Paul FULTON, Personal Representative of the Estate of Julie Fulton, Deceased, Plaintiff-Appellee, and Attorney General, Department of Community Health, and Blue Cross Blue Shield, Intervenors, v. Pontiac General Hospital, d/b/a North Oakland Medical Centers, and Dr. Deborah Margules Eldridge, Defendants, and WILLIAM BEAUMONT HOSPITAL, Dr. T. Kuntzman, Dr. J. Watts, and Stephen Peters, Defendants-Appellants.

Docket No. 225174.

Court of Appeals of Michigan.

Submitted January 7, 2002, at Detroit.

Decided September 20, 2002, at 9:00 a.m.

Richard A. Lenter (Sommers, Schwartz, Silver & Schwartz, P.C., by Patrick Burkett, of counsel), Southfield, Southfield, for the plaintiff.

Dickinson Wright PLLC (by Barbara Hughes Erard and Shari M. Borsini), Detroit, for the defendants.

Before TALBOT, P.J., and SMOLENSKI and WILDER, JJ.

TALBOT, P.J.

In this medical malpractice action, defendants¹ appeal by leave granted from the trial court's order denying their motion for summary disposition. We reverse.

I. Facts

On February 15, 1995, Julie Fulton went to see Dr. Deborah Eldridge, a specialist in obstetrics and gynecology, for a prenatal examination. Dr. Eldridge performed an examination and noted that Fulton's cervix was long, closed, thick, and friable, meaning that it bled easily. Dr. Eldridge believed that these conditions were not abnormal for a pregnant woman such as Fulton. Dr. Eldridge also performed a routine pap smear and sent the sample to a Beaumont Hospital laboratory for examination. The cytopathology report from Beaumont stated that the pap smear specimen was "Less Than Optimal," but was within normal limits and contained no cellular abnormalities. Dr. Eldridge did not know what "Less Than Optimal" meant, but she felt that the result of the pap smear was "satisfactory enough to give an overall diagnosis of within normal limits and no abnormal cells." As a result, Dr. Eldridge did not give Fulton another pap smear during her pregnancy.

Fulton delivered her child by cesarean section on July 14, 1995. On July 21, 1995, and July 28, 1995, Fulton visited Dr. Eldridge to ensure that she was healing properly after the childbirth. On both visits, Dr. Eldridge told Fulton to return in approximately four weeks for a standard postpartum pap smear and physical. However, because she was moving, Fulton did not return for the pap smear until November 1, 1995. At that appointment, Dr. Eldridge noticed that Fulton's uterus was enlarged, but she did not perform a pap smear because Fulton's cervix was bleeding too heavily. Dr. Eldridge told Fulton to return for the pap smear when the bleeding ceased or, in any event, to return in no later than three months. Fulton returned to Dr. Eldridge in December 1995 for the pap smear and physical. As a result of the pap smear performed at that time, Fulton was diagnosed with stage IIB cervical cancer.

On June 11, 1997, Julie Fulton and Paul Fulton (plaintiff) filed a medical malpractice action against defendants, alleging that defendants' failure to properly diagnose and treat Fulton resulted in a loss of Fulton's opportunity to survive. On April 5, 1998, Fulton died of complications related to cancer. On November 4, 1999, plaintiff, the personal representative of Fulton's estate, filed an amended complaint accounting for Fulton's death. Blue Cross Blue Shield of Michigan joined the action as an intervening plaintiff to enforce its rights. The Michigan Attorney General and Michigan Department of Community Health also joined the action as intervening plaintiffs.

Plaintiff's expert oncologist, Dr. Robert R. Taylor, testified in his deposition that Dr. Eldridge's observations on February 15, 1995, should have led her to suspect that Fulton may have been in the early stages of cervical cancer. Dr. Taylor interpreted Fulton's "Less Than Optimal" pap smear result to mean either that technical errors existed with the sample or that the cells in the sample were obscured by blood cells, bacteria, or other organisms. Dr. Taylor opined that Dr. Eldridge breached the standard of care by failing to order a repeat pap smear for Fulton after the February 1995 examination and by failing to give Fulton a pap smear during her postpartum period. Dr. Taylor testified that a patient with early invasive cervical cancer, such as Fulton had in February 1995, had an eighty-five percent chance to survive. Before her death, Fulton testified that if she had been diagnosed with cervical cancer in February 1995, she would not have begun treating the cancer until after her child was born. However, Dr. Taylor testified that the child could have been safely delivered in early June 1995, and that Fulton's cancer could have been simultaneously removed through a radical hysterectomy. Dr. Taylor testified that Fulton's opportunity to survive did not decrease between February 1995 and June 1995. By the time Fulton's cancer was actually discovered in December 1995, Fulton's condition had progressed to stage IIB cervical cancer and it was too late to perform the radical hysterectomy. Dr. Taylor testified that a patient with stage IIB cervical cancer had a sixty to sixty-five percent chance to survive.

Defendants moved for summary disposition under MCR 2.116(C)(10), arguing that plaintiff could not show that their negligence was the cause of Fulton's death. In response, plaintiff submitted an affidavit from Dr. Taylor, opining that if Fulton's cancer had been diagnosed while she was pregnant and if she had been treated after her child was delivered, she would have had an eighty-five percent chance to survive. Dr. Taylor opined that when Fulton was actually diagnosed with cancer, her opportunity to survive had decreased to sixty to sixty-five percent. Therefore, according to Dr. Taylor, Fulton's opportunity to survive the cancer decreased by twenty to twenty-five percent because of defendants' malpractice. In reply, defendants argued that Dr. Taylor's affidavit was improper because it contradicted his deposition testimony and that, in any event, this affidavit was not enough to create a question of fact under M.C.L. § 600.2912a(2).

In denying defendants' motion for summary disposition, the trial court concluded that there were three elements that a plaintiff had to show in a loss of opportunity to survive medical malpractice case: (1) the defendant breached the medical standard of care, (2) the plaintiff's injury, the loss of opportunity to survive, was more probably than not caused by the defendant's negligence, and (3) the plaintiff's initial opportunity to survive was greater than fifty percent. The trial court determined that there was no dispute that defendants breached the medical standard of care in failing to timely diagnose and treat Fulton. The trial court also noted that plaintiff had presented evidence that defendants' malpractice more probably than not caused Fulton's injury, her loss of opportunity to survive. Finally, the trial court concluded that M.C.L. § 600.2912a(2) only required plaintiff to show that the initial opportunity to survive was greater than fifty percent. Therefore, the trial court ruled that because plaintiff had presented evidence that Fulton's initial opportunity to survive before the alleged malpractice was eighty-five percent, plaintiff had shown a question of fact under M.C.L. § 600.2912a(2). The trial court then entered an order denying defendants' motion for summary disposition. This Court granted defendants' application for leave to appeal.

II. Standard of Review

On appeal, defendants argue that the trial court misapplied M.C.L. § 600.2912a in denying their motion for summary disposition. This Court reviews de novo a trial court's decision on a motion for summary disposition. Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 62, 642 N.W.2d 663 (2002).

A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. In evaluating a motion for summary disposition brought under this subsection, a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in the light most favorable to the party opposing the motion. Where the proffered evidence fails to establish a genuine issue regarding any material fact, the moving party is entitled to judgment as a matter of law. MCR 2.116(C)(10), (G)(4). Quinto v. Cross & Peters Co., 451 Mich. 358, 547 N.W.2d 314 (1996). [Maiden v. Rozwood, 461 Mich. 109, 120, 597 N.W.2d 817 (1999).]

Similarly, questions of statutory interpretation are reviewed de novo. Roberts, supra at 62, 642 N.W.2d 663.

An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. People v. Wager, 460 Mich. 118, 123 n. 7, 594 N.W.2d 487 (1999). To do so, we begin with an examination of the language of the statute. Wickens v. Oakwood Healthcare System, 465 Mich. 53, 60, 631 N.W.2d 686 (2001). If the statute's language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. People v. Stone, 463 Mich. 558, 562, 621 N.W.2d 702 (2001). A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Omne Financial, Inc. v. Shacks, Inc., 460 Mich. 305, 311, 596 N.W.2d 591 (1999). [Roberts, supra at 63, 642 N.W.2d 663.]

"Only where the statutory language is ambiguous may a court properly go beyond the words of the statute to ascertain legislative intent." Sun Valley Foods Co. v. Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). Judicial construction is appropriate where reasonable minds can differ regarding the meaning of the statute. Adrian School Dist. v. Michigan Public School Employees' Retirement System, 458 Mich. 326, 332, 582 N.W.2d 767 (1998).

III. Analysi...