Gawlik v. Rengachary, 257754.

• Decision Date: 21 February 2006
• Docket Number: No. 257754.,257754.
• Citation: 270 Mich. App. 1,714 N.W.2d 386
• Parties: Cynthia GAWLIK, Plaintiff-Appellee, v. Setti RENGACHARY, M.D., and University Neurosurgical Associates, P.C., Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

270 Mich. App. 1

714 N.W.2d 386

CYNTHIA GAWLIK, Plaintiff-Appellee v SETTI RENGACHARY, M.D., and UNIVERSITY NEUROSURGICAL ASSOCIATES, P.C., Defendants-Appellants. Official Reported Version

No. 257754

COURT OF APPEALS OF MICHIGAN

February 14, 2006, Submitted

February 21, 2006, Decided

COUNSEL: Fieger, Fieger, Kenney & Johnson, P.C. (by Geoffrey Nels Fieger, William J. McHenry, and Tammy J. Reiss), for the plaintiff.

Tanoury, Corbet, Shaw, Nauts & Essad, P.L.L.C. (by Linda M. Garbarino and Debbie K. Taylor), for the defendants.

JUDGES: Before:

O'Connell, P.J., and Smolenski and Talbot, JJ.

OPINION

PER CURIAM.

Defendants appeal by leave granted the trial court's order granting plaintiff's motion to strike defendants' affidavit of meritorious defense and entering a default against them. Defendants also challenge the court's denial of their motion to strike plaintiff's notice of intent and affidavit of merit. We reverse both orders.

Defendant University Neurosurgical Associates, P.C. (UNA), employed defendant Setti Rengachary, a neurosurgeon. Plaintiff visited Rengachary complaining of pain in her neck and along her right side. Plaintiff had undergone fusion surgery in her neck before, and Rengachary suggested an operation with a posterior approach that would remove excess bone and disk tissue on the left side of her cervical vertebrae. Plaintiff consented and was admitted to the hospital on November 30, 1999. However, before the surgery, Rengachary learned that plaintiff complained of bilateral pain, which he determined would not be cured by the mere removal of tissue on the left side, but mandated fusion of the vertebrae above and below the previous fusion. This required an anterior approach. Rengachary met with plaintiff in the preoperation area and gave her a consent form explaining some aspects of the procedure, such as the approach and the use of cadaver bone grafts. Plaintiff signed the consent form. During the operation, Rengachary perforated plaintiff's esophagus, and complications arose, including intubation and subsequent infection. According to her notice of intent to sue, plaintiff was not released from the hospital until January 14, 2000, and was readmitted a few days later for another week-long hospital stay.

Plaintiff sent her notice of intent to sue on November 16, 2001. In relevant part, the notice states:

1. FACTUAL BASIS FOR CLAIM

On or about November 30, 1999, Plaintiff Cynthia Gawlik . . . was admitted to the Detroit Medical Center, Harper Hospital, under the care of Paul Ragatzki, M.D. On December 1, 1999, she underwent emergent anterior cervical dysectomy and fusion (ACDF) by Dr. Setti Rengachary resulting in a series of complications which are the subject of this NOI, including esophageal perforation (which was not repaired in a timely fashion) resulting in abscess, osteomyelitis and mediastinitis and aspiration pneumonia. The medical records from the DMC, Harper Hospital, and especially Dr. Rengachary, are intentionally incomplete and false regarding the date and time of the ACDF by Dr. Rengachary, and the subsequent hospital course of the patient.

The patient acquired staphylococcus aureus, osteomyelitis with mediastinitis, respiratory distress (not treated timely) and acute adult respiratory distress syndrome (ARDS) and aspiration pneumonia, tracheostomy, vocal cord damage, and brain damage secondary to prolonged respiratory distress, which was not diagnosed in a timely fashion by the hospital team caring for the patient.

* * *

2. APPLICABLE STANDARD OF PRACTICED [sic] OR CARE ALLEGED

The applicable standard of care required is that of reasonably prudent physicians and surgeons and medical care providers in the same or similar circumstances as those who were conducting surgical procedures, and caring for the patient, Cynthia Gawlik, from the time of her admission on November 30, 1999, and subsequent surgeries, including the ACDF by Dr. Rengachary from neurosurgery on December 1, 1999, and post operative care through discharge on January 12, 2000.

Pursuant to MCL 333.21513 entitled "Duties and Responsibilities of Owner, Operator or Governing Body of the Hospital," the owner, operator and governing body of a hospital licensed under this Article (A) are responsible for all phases of the operation of the Hospital, selection of the medical staff, and quality of care rendered in the Hospital. Defendant DMC and Harper Hospital had this statutory duty in addition to its responsibly to act reasonably under the circumstances which existed in this case.

3. THE MANNER IN WHICH IT IS CLAIMED THAT THE APPLICABLE STANDARD OF PRACTICE OR CARE WAS BREACHED

The applicable standard of practice and care was breached when the above named health care providers, physicians, and surgeons failed to act reasonably under the circumstances which existed at the time the patient was admitted to Defendant Harper Hospital on November 30, 1999 and thereafter. Defendants were required to perform the ACDF by Dr. Rengachary on 12/1/1999 in a reasonable manner and in accordance with consent from the patient after she had been properly apprised of the risks and benefits of the proposed surgery. Dr. Rengachary and the physicians and residents responsible for this surgery acted unreasonably, including Dr. Julia Pilitsis, when they changed the surgical plan on the patient to anterior cervical dysectomy and fusion of C4-5 and C6-7 which greatly increased the risk to the patient of complications, and then, conducted the surgery and approach in a negligent manner. Plaintiff never understood and never consented to the changed surgical plan. Further, the patient never agreed to any use of cadaver donations for the cervical surgeries and would have refused same if she had known of the risks and proposed changes.

The 12/1/99 surgery was conducted in a negligent fashion, and resulted in the above described complications. These complications, including esophaeal [sic] perforation, were not diagnosed or treated in a timely fashion by Defendant Surgeon, by the attending physician, by the residents, or the team responsible for the patient's care and treatment. Post-Operatively, as a result of the negligence of Defendant Physicians and Surgeons, the patient developed abscesses, osteomyelitis and mediastinitis and the other complications which would have been completely avoided but for the radical surgery performed on 12/1/99 without the consent of the patient, and but for the esophaeal perforation, and failure of the Defendants to timely diagnose and repair the esophaeal perforation, before additional complications occurred.

Post-Operatively, these complications were allowed to worsen, requiring I & D on 12/23/99. She remained hospitalized until January 12, 2000. Plaintiff complains that the entire admission of 11/30/99 through January 12, 2000 was the result of a series of complications and botched procedures which were caused [by] Defendants [sic] negligence and failure to act reasonably from the time of the surgery on 12/1/99 and thereafter.

4. THE ACTION THAT SHOULD HAVE BEEN TAKEN TO ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE OR CARE

In order to comply with the standard of practice, the above named physicians and health care providers and hospitals needed to [sic, to do] the things listed in Section # 2 above.

Although the notice names several physicians, hospitals, and professional corporations, plaintiff's notice generally described the standard of care as "that of reasonably prudent physicians and surgeons and medical care providers in the same or similar circumstances as those who were conducting surgical procedures, and caring for the patient . . . ." The notice did not contain a standard of care particularly tailored to Rengachary and did not contain any standard of care for UNA. Moreover, the compliance portion of the notice merely referred defendants to an earlier section, which lacked any information on how defendants could have complied with the standard of care.

Nevertheless, plaintiff filed suit on May 23, 2002, relying on an affidavit of merit signed by Dr. Karl Manders. Defendants responded in a timely fashion with an affidavit of meritorious defense signed by Rengachary. Defendants' affidavit was extremely conclusory, and in it Rengachary merely opined that plaintiff received diagnosis and treatment according with the standard of care, which only required "evaluation of the patient's medical condition and assessment of reasonable courses of treatment. " Their answers, however, clearly challenged the sufficiency of plaintiff's notice of intent and affidavit of merit. They also clearly raised the affirmative defense that plaintiff failed to comply with the statute of limitations. The case proceeded without further incident, except that the list of defendants dwindled until only Rengachary and UNA remained in the suit.

During discovery, plaintiff's expert revealed that he would not disparage Rengachary's decision to change the approach from a posterior to an anterior approach or from a foraminotomy on the left side to a fusion and plating procedure. The expert also agreed that the esophageal perforation could have occurred without negligence on Rengachary's part. In fact, the expert's only point of genuine contention was how Rengachary obtained plaintiff's signature on the surgical consent form. The expert opined that Rengachary should have cancelled or postponed the surgery indefinitely rather than obtaining consent for a new operation from a distressed patient. Defendants limited plaintiff's complaint to the issue of informed consent by successfully moving to strike the unsupported allegations regarding negligence in the selection and performance of the actual surgery.

According to the final pretrial order, plaintiff asserted that she would argue the primary issue of lack of consent, but did not raise any issue regarding defendants' affidavit of meritorious defense. Nevertheless, on the day...