Harrison v. Munson Healthcare, Inc.

• Decision Date: 30 January 2014
• Docket Number: 304539.,Docket Nos. 304512
• Citation: 851 N.W.2d 549,304 Mich.App. 1
• Court: Court of Appeal of Michigan — District of US
• Parties: HARRISON v. MUNSON HEALTHCARE, INC.

304 Mich.App. 1

851 N.W.2d 549

HARRISON

v.MUNSON HEALTHCARE, INC.

Docket Nos. 304512, 304539.

Court of Appeals of Michigan.

Submitted Jan. 8, 2014, at Lansing.

Decided Jan. 30, 2014, at 9:00 a.m.

Thomas C. Miller, Southfield, for plaintiff.

Fraser Trebilcock, Davis & Dunlap, PC, Lansing, (by Graham K. Crabtree), for Munson Healthcare, Inc.

Hall Matson, PLC, East Lansing, (by Marcy R. Matson), for Thomas R. Hall.

Before: OWENS, P.J., and BORRELLO and GLEICHER, JJ.

GLEICHER, J.

Plaintiff, Jeanne Harrison, sustained a quarter-sized forearm burn during thyroid surgery performed by defendant Dr. William Potthoff at Munson Medical Center, owned by defendant Munson Healthcare, Inc. Postoperatively, Harrison met with a Munson representative to learn the cause of her burn. The representative told her that an electrocautery device called a “Bovie” had created the wound but offered no additional details. Dissatisfied with that answer and unhappy about the burn's aftereffects, Harrison filed suit.

Munson insisted throughout discovery that no one in the operating room remembered the incident, that the burn's mechanism “may not be ascertainable and may not ever be known,” and that the witnesses lacked “any way of knowing precisely when or how the burn occurred.” During their depositions, the operating room personnel avowed that they always returned the Bovie to its protective holster when it was not in active use. Munson contended that given this habit and practice and the absence of any memories of the event, only an accidental dislodgement of the Bovie from its holster could explain the burn.

At the trial, Munson's operating room manager revealed that it would have been her practice to interview “every single staff member in [the operating] room” following an untoward event such as Harrison's burn. Subsequent inquiry revealed that within 90 minutes of the burn, a nurse penned an “incident report” stating: “During procedure, bovie was laid on drape, in a fold. Dr. Potthoff was leaning against the patient where the bovie was.” The operating room manager's investigation yielded a conclusion that the Bovie's holster “was on field for this case, however bovie was not placed in it.” The trial court perceived that this information directly contradicted the defense's contentions that no one knew how the event had occurred and that the Bovie had inadvertently fallen on the patient and declared a mistrial.

At an ensuing evidentiary hearing the trial court explored whether the incident report was subject to the statutory peer-review privilege and whether Munson and its counsel, Thomas R. Hall, had diminished the integrity of the proceeding by pursuing a defense at odds with the facts known to Munson. Ultimately, the trial court found the incident report privileged from disclosure but nevertheless imposed a joint and several sanction of $53,958.69 on Munson and Hall. We affirm the sanction award but remand for an individual assessment of the sanctions owed.¹

I. BACKGROUND FACTS AND PROCEEDINGS

A. PRETRIAL PROCEEDINGS

On April 24, 2007, Dr. Potthoff surgically removed Jeanne Harrison's cancerous thyroid gland. Richard Burgett, a certified surgical assistant employed by Munson, assisted Dr. Potthoff. The operative note states that when the operation was complete and the drapes removed, “[t]here was found to be a burn wound on the left forearm, evidently from the Bovie.” ² The note continued: “There was a burn on the drape during the case that was noticed and this was sterilely covered with sterile towel and the Bovie changed. At this point in time it became evident that the burn carried into the skin on the patient.” No other notations in Harrison's medical record shed light on the burn's cause.

Soon after she recovered from the thyroid operation, Harrison sought more informationfrom Munson about the genesis of her injury. On June 5, 2007, Harrison received a letter signed by Barbara A. Peterson, Munson's operating room manager. The letter stated, in relevant part:

This case has been confidentially reviewed and the following initiatives have been reinforced: The mandatory and active use of cautery protective devices anytime cautery is used. In addition, we have mandated the use of an alarm that is audible every time the device is activated. These precautions will decrease the likeihood of a burn event reoccuring. We will continue to measure these practices to ensure 100% compliance.

Harrison then met with Bonnie Schreiber, Munson's risk manager, to further discuss the burn. Still dissatisfied, Harrison retained counsel.

In November 2008, attorney Thomas C. Miller filed a complaint on Harrison's behalf in the Grand Traverse Circuit Court. The complaint sounded in negligence, rather than in medical malpractice, and named as defendants Munson Healthcare, Inc., and Dr. Potthoff. Dr. Potthoff was not employed by Munson, and the parties agreed that he did not act as Munson's agent at the time of the surgery. Nevertheless, Munson and Dr. Potthoff agreed to a joint defense handled by Hall. Hall sought summary disposition of Harrison's negligence claim, averring that it sounded in malpractice. Judge Philip E. Rodgers, Jr., granted the motion.³

Harrison proceeded to comply with the statutory requirements governing medical malpractice actions by mailing Munson and Dr. Potthoff a notice of intent to sue pursuant to MCL 600.2912b. During the 182–day “waiting time” required by the statute, Hall provided Miller the names of the 11 people who had been in the operating room during Harrison's surgery, identifying Burgett as the surgical assistant. Miller then filed a lawsuit against Burgett and Munson, again alleging negligence rather than malpractice.⁴ Burgett, represented by Hall, responded by filing an affidavit of noninvolvement pursuant to MCL 600.2912c, averring that he did not “use, hold, holster, or otherwise handle the Bovie device” during the surgery. The affidavit further provided:

5. Prior to the April 24, 2007 surgery, I have had occasion to assist Dr. Potthoff in numerous surgeries, estimated at several hundred. This would likewise include literally dozens of surgeries involving removal of the thyroid gland and/or surrounding tissue.

[6]. Throughout those occasions upon which I have assisted Dr. Potthoff during surgery involving thyroid removal, it has never been my habit and/or custom to use, hold, holster, or otherwise handle the electrocautery (Bovie) device, at any time before, during or after surgery.

Judge Rodgers granted Burgett and Munson summary disposition, ruling that the case sounded in medical malpractice rather than simple negligence.

Harrison then filed this medical malpractice action, which also included a res ipsa loquitur claim. With her complaint, Harrison submitted affidavits of merit signed by a general surgeon and a nurse. The parties embarked on a lengthy and contentious course of discovery focused on establishing how the Bovie had ended up on the drape covering Harrison's arm and who—Dr. Potthoff or a Munson employee—was responsible for its presence there.

Harrison utilized interrogatories and requests for admission, supplemented with depositions, to develop her proofs. Early in the process, Harrison sought an admission that the “individuals who were responsible for the electrocautery device” were Munson employees acting in the course of their employment. If Munson denied this request for admission, Harrison demanded that Munson “please specifically identify the individual or individuals by name and position, who were responsible for the device burning Mrs. Harrison's arm.” Munson responded:

Defendant objects to this request, in that it is vague, over broad and calls for a legal conclusion. Moreover, to the extent that this request refers in any manner to Dr. Potthoff, it has never been established that he was acting as an agent of Munson Healthcare (either real or ostensible) at the time of these events. In further answer, discovery is in its early stages and Plaintiff's counsel will be afforded the right to depose all individuals present in the operative suite at the time of surgery, who may have knowledge concerning the means by which the injury occurred or may have occurred. Finally, Defendant relies upon the medical records from Mrs. Harrison's April 24, 2007 outpatient surgery at Munson.

In response to Harrison's inquiries regarding responsibility for the Bovie at the time of the burn, defendants repeatedly directed Harrison to the medical record and denied that anyone in the operating room possessed any memory of the circumstances surrounding the burn. According to an affidavit filed early in the litigation by circulating nurse Cinthia Gilliand, “the injuries allegedly sustained by Jeanne Harrison, in whole or in part, were caused by acts and occurrences outside the control of the surgical team[.]” Gilliand concomitantly averred that she possessed no memory of the surgery.

Based on the absence of any participant's memory about the cause of the burn, Munson and Potthoff advanced an accident defense. They contended that because Dr. Potthoff and the operating personnel always reholstered the Bovie after using it, the Bovie's cord likely became entangled in a suction line, which then pulled the Bovie from its holster. Defendants theorized that the unnoticed Bovie accidentally fired when someone leaned against it. In answer to one of Harrison's interrogatories, Hall described the defense as follows:

Defendants submit that a more fair description and/or plausible explanation of “how the burn occurred” is as follows: At some unknown point during surgery, the Bovie device evidently became unholstered while Dr. Potthoff was moving in and about the patient and attending to her. This may in fact have resulted in the Bovie cord becoming tangled upon itself, or perhaps upon other equipment at the bedside and even upon the clothing of Dr. Potthoff. (This was explained, in part by Dr. Potthoff at...