Powell v. St. John Hosp.

• Decision Date: 26 July 2000
• Docket Number: Docket No. 208928.
• Citation: Powell v. St. John Hosp., 241 Mich.App. 64, 614 N.W.2d 666 (Mich. App. 2000)
• Parties: Karen POWELL, Personal Representative of the Estate of Gary Tomic, Deceased, Plaintiff-Appellee, and Michigan Department of Community Health, Intervening Plaintiff-Appellee, v. ST. JOHN HOSPITAL, Defendant-Appellant, and Michael Davis, M.D., Jennifer Appleyard, M.D., Sambamurty Kalahasty, M.D., Robert Borchak, M.D., Akash Sheth, M.D., Dr. Anton, and David Hoerle, M.D., Not Participating.
• Court: Court of Appeal of Michigan

614 N.W.2d 666

241 Mich. App. 64

Karen POWELL, Personal Representative of the Estate of Gary Tomic, Deceased, Plaintiff-Appellee, and Michigan Department of Community Health, Intervening Plaintiff-Appellee, v. ST. JOHN HOSPITAL, Defendant-Appellant, and Michael Davis, M.D., Jennifer Appleyard, M.D., Sambamurty Kalahasty, M.D., Robert Borchak, M.D., Akash Sheth, M.D., Dr. Anton, and David Hoerle, M.D., Not Participating.

Docket No. 208928.

Court of Appeals of Michigan.

Submitted February 8, 2000, at Detroit.

Decided May 9, 2000, at 9:25 a.m.

Released for Publication July 26, 2000.

David J. Cooper, West Bloomfield, for the plaintiff on appeal.

John P. Jacobs, P.C. (by John P. Jacobs), Southfield, for the defendant.

Before GRIBBS, P.J., and MARK J. CAVANAGH and GAGE, JJ.

PER CURIAM.

A jury returned a verdict in favor of plaintiff, Karen Powell, in this wrongful death action. Defendant St. John Hospital appeals as of right the trial court order granting its motion for remittitur and denying its motion for a new trial. We reverse and remand for a new trial.

Plaintiff, as personal representative of the estate of her son, Gary Tomic, brought this action on the basis of defendant's alleged malpractice in treating Tomic.¹ Powell alleged that Tomic died because defendant's staff failed to timely diagnose and properly treat a perforation in his colon.

Tomic was hospitalized at St. John Hospital (hereinafter defendant) from October 8 to October 14, 1991, after suffering multiple seizures attributed to alcohol withdrawal. During this time, Tomic did not complain of abdominal pain.

On October 20, 1991, Tomic arrived at defendant's emergency room and reported that he had suffered severe abdominal pain during the previous five days and had been vomiting profusely during the preceding twenty-four hours. Tomic was admitted; defendant's employees administered fluids intravenously and inserted a nasogastric tube. In addition, various tests were conducted to determine the cause of his distress. These tests included a series of abdominal x-rays and a computer topography (CT) scan to discover whether "free air" was present. "Free air" is air present in the abdominal cavity, as opposed to air present in an organ, and is a sign of a perforated organ. The radiologist's report on the x-rays stated that free air was not present; a radiologist's report on the CT scan was not found among Tomic's medical records.

Because Tomic had significant electrolyte abnormalities and was experiencing acute renal failure, defendant's surgeon, Dr. Robert Borchak, decided that exploratory surgery was too risky. However, after Tomic's white blood cell count dropped while his condition did not otherwise improve, Borchak performed exploratory surgery on October 21,1991, approximately twenty-nine hours after Tomic had been admitted.

During surgery, it was determined that Tomic had diverticulosis, the formation of small pouches along the colon; furthermore, the pouches were infected, causing diverticulitis. In addition, there was an actual perforation of the sigmoid colon and peritonitis as a result of the leakage of the colon contents into the peritoneal cavity. Dr. Borchak resected the colon and also performed a decompressive enterotomy, in which he made a hole in the small bowel in order to drain fluid, then closed the hole with sutures.

On October 28, 1991, surgery was again performed on Tomic, and it was discovered that the hole made during the enterotomy had opened. As a result, small bowel contents and pus had leaked into the abdominal cavity, and four separate abscesses had formed. Tomic remained in the surgical intensive care unit (ICU) until his death on December 26, 1991, from multiple organ failure.

At trial, plaintiff claimed that the twenty-nine-hour delay in performing exploratory surgery constituted malpractice. Plaintiff presented four experts who testified that both the x-rays and the CT scan taken on October 20, 1991, showed the presence of free air. Plaintiff further asserted that performing the enterotomy had been both unnecessary and a breach of the standard of care.

Defendant maintained that Tomic had not displayed symptoms that would be expected in a person suffering from a perforated bowel, such as an elevated temperature and an abnormal white blood cell count. In fact, plaintiff's expert, Dr. David Befeler, agreed that most patients with perforations "are sicker than Gary appeared initially when he was seen in the emergency room." Accordingly, defendant argued that exploratory surgery was properly delayed until October 21, 1991, when Tomic's condition had not improved and the risk of not proceeding outweighed the risk of surgery. In addition, defendant presented testimony from both the physicians who treated Tomic and expert witnesses; these witnesses asserted that neither the x-rays nor the CT scan films revealed the presence of free air and that the treatment of Tomic had been in compliance with the standard of care.

A key witness for plaintiff was Dr. Peter Tiernan, who had been employed by defendant as a surgical resident during the period that Tomic was a patient. Tiernan began treating Tomic on November 1, 1991; however, the ultimate responsibility for Tomic's care remained with Borchak.

It was undisputed at trial that Tomic had been gay. Tiernan testified that some doctors employed by defendant were reluctant to associate with or touch homosexuals and that he heard certain physicians refer to Tomic as a "dirt bag." Members of the staff similarly disparaged women, "people of color," and uninsured patients.

Tiernan also testified that there was a pattern of delay in treating Tomic because Borchak did not come to the hospital regularly. Tiernan further explained that when an operation was unsuccessful, subsequent surgical procedures would often be performed in the nonsterile ICU, rather than the surgery, in order to hide that fact. Tiernan stated that he and Dr. Larry Lloyd performed such a surgical procedure on Tomic in the ICU, without anesthesia, during which they removed feces and pus from Tomic's abdomen by hand while Tomic "grimaced in pain." Moreover, Tiernan asserted that he and the other surgical residents had made numerous complaints about the care given to Tomic and other patients, which were ignored by the hospital. In Tiernan's opinion, certain aspects of the treatment given to Tomic constituted "bad medicine."

Additionally, Tiernan testified that he had observed the removal of compromising documents from medical charts and that he had noticed that progress notes and reports of test results often were missing when medical charts were subsequently reviewed. Tiernan stated that a note that he recalled writing was absent from Tomic's chart.

Tiernan admitted that he had been required to repeat the third year of his residency and that, midway through the repeated year, his residency had been terminated. Tiernan asserted that he was required to repeat his third year because he repeatedly complained to the hospital administration about deficiencies in patient care. Tiernan further acknowledged that, following his termination, he had filed a lawsuit against defendant that had been dismissed, but stated that the dismissal had been because of the expiration of the period of limitation. The trial court refused to allow defense counsel to impeach Tiernan by presenting evidence that Tiernan had been required to repeat his third year, and had been eventually discharged, because he was incompetent. In addition, the trial court refused to permit defendant to enter into evidence the trial court opinion and order dismissing Tiernan's lawsuit against the defendant for the purpose of demonstrating that only one of Tiernan's claims had been dismissed on the basis that it was not timely filed.

Lloyd denied that there had been a procedure where pus and feces had been removed from Tomic's abdomen by hand. Borchak testified that he had regularly visited his patients in the ICU, including Tomic. Defendant's doctors all stated that they had never heard staff members refer to anyone as a "dirt bag" and that treatment was never altered because of a patient's race, gender, or sexual orientation. No one except Tiernan testified that patient notes and records regularly disappeared and were sometimes deliberately destroyed. Lloyd testified that the only instance he was aware of where a note was purposely removed from a chart occurred when a senior staff member would not allow Tiernan to do "crazy things" to a patient and Tiernan became angry and wrote "inflammatory statements" in the chart. The jury returned a verdict in favor of plaintiff, awarding $392,476.87 in economic damages, $6,700,000 for Tomic's pain and suffering, $3,150,000 for past loss of society, and $3,150,000 for future loss of society for a total award of $13,392,476.87. Defendant moved for remittitur and for a new trial on the basis that the trial court erred in refusing to permit Tiernan to be questioned regarding his bias and because of the alleged misconduct of plaintiff's counsel. The trial court denied defendant's motion for a new trial; however, it granted the motion for remittitur in part and reduced the award for Tomic's pain and suffering to $3,500,000, the award for past loss of society to $1,750,000, and the award for future loss of society to $1,750,000, thus reducing the total award to $7,392,476.87.

I

Defendant first argues that the trial court erred in refusing to permit it to cross-examine Dr. Peter Tiernan to reveal his bias. A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. Ellsworth v. Hotel Corp. of America, 236 Mich.App. 185, 188, 600 N.W.2d 129 (1999).

The credibility of a witness is an appropriate subject for the jury's consideration. People v. Coleman, 210 Mich.App. 1, 8, 532 N.W.2d 885 (1995). Evidence that shows bias or prejudice on the part of a witness is always relevant. See Popp...