Mitchell v. Kalamazoo Anesthesiology, PC

• Decision Date: 24 August 2017
• Docket Number: No. 331959,331959
• Parties: Rolla MITCHELL, Plaintiff–Appellant, v. KALAMAZOO ANESTHESIOLOGY, PC and Bernard Mason Smith III, M.D., Defendants–Appellees.
• Court: Court of Appeal of Michigan — District of US

321 Mich.App. 144

908 N.W.2d 319

Rolla MITCHELL, Plaintiff–Appellant,

v.KALAMAZOO ANESTHESIOLOGY, PC and Bernard Mason Smith III, M.D., Defendants–Appellees.

No. 331959

Court of Appeals of Michigan.

Submitted August 9, 2017, at Grand Rapids.

Decided August 24, 2017, 9:05 a.m.

Sommers Schwartz, PC (by Charles R. Ash III and Ramona C. Howard ), for plaintiff.

Hall Matson, PLC (by Thomas R. Hall and Evelyn Waldman ), for defendants.

Before: Boonstra, P.J., and Ronayne Krause and Swartzle, JJ.

Swartzle, J.

In this medical-malpractice suit, plaintiff Rolla Mitchell sued defendant Bernard Mason Smith III, M.D., and the doctor's former employer, defendant Kalamazoo Anesthesiology, PC. Plaintiff claimed that Dr. Smith negligently performed certain post-operative services that permanently injured the phrenic nerve in plaintiff's shoulder. The jury returned a verdict in favor of defendants, and plaintiff appealed.

One key issue at trial was whether an ultrasound image sought to be introduced by the defense was, in fact, an accurate scan of the ultrasound image taken of plaintiff's shoulder on the day of surgery. The image purported to show that Dr. Smith properly placed the needle and catheter while performing the post-operative services on plaintiff. Outside the presence of the jury, the trial judge held that defendants had properly authenticated the image and, as a result, plaintiff's counsel was precluded from presenting evidence or argument to the jury that the proffered image was not, in fact, an accurate image of plaintiff's shoulder.

As explained below, we conclude that the trial court properly served its gatekeeping role by admitting the ultrasound image as authentic under Michigan Rule of Evidence 901. Yet, authentication under MRE 901 is a threshold matter that goes to the admissibility of evidence, not to the ultimate weight to be given that evidence. By precluding plaintiff's counsel from attacking the genuineness and reliability of the ultrasound image before the jury, the trial judge overstepped his gatekeeping role and, instead, intruded on the jury's role as fact-finder. Given the importance of the ultrasound image to this dispute, we reverse and vacate the judgment and remand for further proceedings.

I. BACKGROUND

A. PLAINTIFF'S SHOULDER SURGERY AND POST-OPERATIVE COMPLICATIONS

In May 2011, plaintiff had surgery on his right shoulder at Borgess Medical Center in Kalamazoo, Michigan. Defendant Kalamazoo Anesthesiology provided anesthesiology services for Borgess under contract. Both Dr. Phyllis Lashley and Dr. Smith worked for Kalamazoo Anesthesiology. Dr. Lashley provided anesthesiology services to plaintiff during his surgery, and defendant Dr. Smith provided post-operative services, including performing an "interscalene nerve block

and continuous catheter placement" on plaintiff's shoulder. In October 2013, plaintiff sued defendants for malpractice, alleging, among other things, that Kalamazoo Anesthesiology failed to obtain plaintiff's informed consent and that Dr. Smith negligently conducted the procedure. The case proceeded to trial over several days in February 2016.

At trial, Dr. Lashley testified that she did not "specifically remember" interacting with plaintiff before or during his surgery, but records showed that she signed his anesthesia

pre-evaluation form, and a notation on the form indicated that she discussed the use of an interscalene block with him to manage his pain after the surgery. At trial, Dr. Brian Kiessling explained that an interscalene block was a procedure where the physician uses a needle to administer a local anesthetic around the brachial plexus, which provides anesthesia

to the patient for varying periods of time.

Dr. Smith testified that he performed the interscalene block

and catheter placement on plaintiff after the shoulder surgery. Dr. Smith then attached a pain pump to the catheter to help plaintiff manage his pain. Dr. Smith stated that part of his training included being careful not to puncture the phrenic nerve during the interscalene block. He noted that plaintiff was talking throughout the procedure and that there was no indication that plaintiff had suffered a phrenic nerve injury at that time.

Later that day, plaintiff had problems breathing, a common symptom of phrenic nerve injury. He returned to the hospital and sought follow-up medical advice and treatment. Physicians who subsequently treated plaintiff testified that his phrenic nerve was dysfunctional, that this was the cause of his shortness of breath, and that his condition was not likely to improve.

B. THE ULTRASOUND IMAGE

One crucial factual dispute at trial was whether Dr. Smith properly performed the interscalene block

on plaintiff after the shoulder surgery. Plaintiff argued that Dr. Smith breached the standard of care by placing the needle or catheter in such a way as to directly damage his phrenic nerve. Dr. Smith, by contrast, argued that he properly placed the needle and catheter in the interscalene groove near the brachial plexus and that plaintiff was just one of the unfortunate patients—1 in 1,000 or 2,000, in Dr. Smith's estimation—who develop permanent phrenic nerve injury, even with a properly performed interscalene block

.

The medical records indicated that Dr. Smith used an ultrasound to guide his placement of the needle and catheter during the procedure, and Dr. Smith noted on plaintiff's chart that he printed an image from the scan at the time he performed the procedure. During his deposition, Dr. Smith testified that he did not know what happened to the image after he put it with plaintiff's chart on the day of the procedure. Plaintiff repeatedly asked for the ultrasound image during discovery, but it was not until just before case evaluation that defendants produced what they purported to be a scanned version of the original progress note with an ultrasound image attached to it.

Plaintiff's counsel questioned the authenticity of the ultrasound depicted in the image. Among other things, the image showed that the sticker with plaintiff's identifying information on it had been placed over another sticker that attached the ultrasound image to the progress note, and that the sticker was different from others used on the day of plaintiff's procedure. Counsel also noted that the time listed on the ultrasound by a time-stamp (4:16:27) varied from the time of the procedure listed on plaintiff's chart (15:32), suggesting that the ultrasound image was taken 45 minutes after the notes indicated that plaintiff had his procedure.

Defendants moved in limine to prevent plaintiff from presenting evidence to the jury about the delay in the disclosure of the digital image and to preclude plaintiff from arguing to the jury that defendants' version might not be a true image of the ultrasound taken during the procedure. On the first day of trial, the trial court held an evidentiary hearing outside the presence of the jury to consider the motion, as well as the predicate question of whether the evidence should be authenticated.

At the hearing, Michelle Ritsema testified that she was the Document Imaging Supervisor for Borgess Medical Center. She stated that the center had discovered a digital scan of what it claimed was the original progress note with the ultrasound printout attached to it. The center produced the digital version because the original had apparently been destroyed along with the rest of the physical record per the center's normal record-retention policy. She testified that the digital version had been found in the center's medical records, and human error caused the delay in its disclosure. Regarding the various stickers appearing on the image, Ritsema agreed that the sticker on the progress note was the only thing that connected the image to plaintiff, and she admitted that she did not know who placed the sticker or when it was placed. Ritsema testified that it was normal for a document to have multiple stickers. She also testified, however, that the center does not place stickers on the records, so the sticker in question must have been placed by an employee in the outpatient short-stay department. According to Ritsema, only the first document in a chart would normally have a barcode on it and, therefore, the progress note and attached ultrasound would normally not have a barcode label originating from the center. Ritsema explained, however, that the outpatient short-stay floors print their own labels with barcodes to place on the medical records. Overall, Ritsema did not see anything unusual with the sticker having a barcode.

Concerning the time-stamp indicating a different time than when plaintiff's procedure took place, Ritsema testified that she did not have any doubt that the time-stamp reflected the actual time the image was printed. Ritsema noted that the difference between the time-stamp and the time of plaintiff's procedure could have resulted from some kind of incongruence between the system's time and daylight savings time. (It should be noted, however, that the difference is not a whole-number of the hour, but rather approximately 45 minutes, suggesting that confusion created by daylight savings time was not the complete answer.)

After taking Ritsema's testimony, defendants argued that allowing plaintiff to present evidence that the ultrasound image was not produced when first requested would cause "confusion, prejudice and false impressions being made to the jury." Moreover, defendants argued that plaintiff should be prohibited from arguing that the image did not depict or pertain to plaintiff. Because there was no evidence that something "nefarious" or "dishonest" occurred with the ultrasound image, defendants argued that any argument to that effect would be a matter of "innuendo and supposition" and would unfairly prejudice the defense. Plaintiff responded that the image was "tainted" by the offending sticker and apparent time disparity, and the image should be excluded from evidence or, if...