Sandusky v. VHS of Mich., Inc.
| Decision Date | 23 September 2021 |
| Docket Number | 354661 |
| Parties | THOMAS SANDUSKY as Personal Representative of the ESTATE OF HAL SANDUSKY, Plaintiff-Appellant, v. VHS OF MICHIGAN, INC., doing business as DETROIT MEDICAL CENTER, VHS DETROIT RECEIVING HOSPITAL, INC., doing business as DETROIT RECEIVING HOSPITAL AND UNIVERSITY HEALTH CENTER, and SARAH E. ALBERS, M.D., Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Wayne Circuit Court LC No. 18-004973-NH
Before: Cavanagh, P.J., and K. F. Kelly and Redford, JJ.
Plaintiff Thomas Sandusky, personal representative of the estate of Hal Sandusky, appeals the trial court's order granting defendants summary disposition of plaintiff's medical malpractice claims. We affirm.
Plaintiff brought this action against defendants alleging that defendant, Dr. Sarah Albers, provided negligent treatment to Hal after the Detroit police arrested him and brought him to the Detroit Receiving Hospital's emergency room for treatment of two lacerations on his right arm near his elbow that he sustained during a domestic dispute from putting his arm through a glass window. Upon arriving at the hospital emergency department, nurses triaged and assessed Hal's condition. He presented with an abrasion to his head and lacerations near his right elbow on his forearm, one a superficial cut and the other a cut deeper through the skin exposing the muscle bellies. Hal's arm lacerations were not bleeding and he advised that that he did not feel as though he had any foreign body retained in the lacerations. Dr. Albers obtained an x-ray to rule out any foreign body in the deeper laceration. The x-ray indicated the possible presence of a tiny focus of hyperdensity in the deeper aspect of the soft tissue laceration. Dr. Albers offered but Hal declined anesthesia by topical application or injection. Dr Albers thoroughly irrigated the wound with saline and saw no obvious foreign body when probing the wound or when irrigating the wound. Dr. Albers sutured the lacerations washed the wound after getting off all of the dried blood, and gave Hal wound care and follow-up instructions. The discharge instructions given to Hal and his accompanying police officers directed Hal to inspect and wash his wounds with soapy water and put on a new dressing in 24 hours, and to call his doctor if he had redness, pain, or swelling in the area of his stitches.
The hospital discharged Hal into the custody of the Detroit police who took him to the precinct where the police booked him and placed him in jail. Two days later, during the evening of June 27, 2013, jail personnel found Hal unresponsive, unsuccessfully attempted to revive him, and then had him transported to Detroit Medical Center's Sinai-Grace Hospital by ambulance. Emergency personnel tried to revive Hal and administered various medications, performed CPR, and attempted to restore his heart function. During the examination of his body they noted swelling in the upper portion of his right arm with sloughing of the skin. Resuscitation efforts proved unsuccessful and the attending physician pronounced Hal dead at 12:56 a.m. on June 28, 2013. Lab work performed on a sample of Hal's blood indicated that he had a streptococcus infection. The Post Mortem Report indicated that Hal had a broad area of skin sloughing with blister formation with necrosis on his upper right arm and forearm measuring 15 by 3 inches. The tissue surrounding the stitched wounds showed evidence of infection and sepsis. The medical examiner concluded that septic shock, right arm laceration infection, and blunt trauma caused Hal's death.[1]
On May 4, 2018, plaintiff brought this medical malpractice action against defendants. On March 27, 2020, defendants moved for summary disposition on the ground that Dr. Saul Levine, plaintiff's standard of care expert, held inadmissible speculative opinions requiring summary disposition of plaintiff's case. On July 7, 2020, the trial court granted defendants' motion and entered a final order ruling that plaintiff's expert's standard of care opinions were premised upon improper assumptions and not based upon facts in evidence requiring the exclusion of Dr. Levine's opinions. Consequently, plaintiff could not establish elements of her prima facie case, that Dr. Albers breached the applicable standard of care, entitling defendants to summary disposition as a matter of law.
Plaintiff filed his opposition brief to defendants' summary disposition motion on July 16, 2020, and on July 28, 2020, also moved for rehearing or reconsideration of the trial court's summary disposition order. The trial court denied plaintiff's motion for reconsideration and this appeal followed.
We review for an abuse of discretion a trial court's determination regarding the admission of expert witness testimony. People v Unger, 278 Mich.App. 210, 216; 749 N.W.2d 272 (2008). We review for an abuse of discretion the trial court's decision to exclude evidence. Elher v Misra, 499 Mich. 11, 21; 878 N.W.2d 790 (2016) (citation omitted). "An abuse of discretion occurs when the trial court chooses an outcome falling outside the range of principled outcomes . . . ." Id. (quotation marks and citation omitted).
We review de novo a trial court's decision on a motion for summary disposition. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). "A motion under MCR 2.116(C)(10) tests the factual sufficiency of the complaint." Id. at 120. A court considers the "affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties . . . in the light most favorable to the party opposing the motion." Id. "When a motion under subrule (C)(10) is made and supported . . . an adverse party may not rest upon the mere allegations or denials of his or her pleading, but must, by affidavits or as otherwise provided in this rule, set forth specific facts showing that there is a genuine issue for trial." MCR 2.116(G)(4). "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." Maiden, 461 Mich. at 120. The party who moves for summary disposition under MCR 2.116 bears the initial burden of production, which may be satisfied in one of two ways. Quinto v Cross & Peters Co, 451 Mich. 358, 361; 547 N.W.2d 314 (1996). The moving party may either submit affirmative evidence that negates an essential element of the nonmoving party's claim or demonstrate to the trial court that the nonmoving party's evidence fails to establish an essential element of the nonmoving party's claim. Id. at 362. Once the moving party satisfies its burden in one of those two ways, "[t]he burden then shifts to the opposing party to establish that a genuine issue of disputed fact exists." Id. The reviewing court "should evaluate a motion for summary disposition under MCR 2.116(C)(10) by considering the substantively admissible evidence actually proffered." Maiden, 461 Mich. at 121. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich. 177, 183; 665 N.W.2d 468 (2003) (citations omitted). A material fact is an ultimate fact essential to the claim on which a jury's verdict must be based. Simerka v Pridemore, 380 Mich. 250, 274-275; 156 N.W.2d 509 (1968). "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." Maiden, 461 Mich. at 121 (citations omitted).
Plaintiff argues that the trial court erred by granting defendants summary disposition because Dr. Levine's opinions were supported by evidence in the record. We disagree.
Wischmeyer v Schanz, 449 Mich. 469, 484; 536 N.W.2d 760 (1995) (citations omitted); Kalaj v Khan, 295 Mich.App. 420, 429; 820 N.W.2d 223 (2012). In medical malpractice cases, expert testimony is required to establish the applicable standard of care and demonstrate a breach of that standard. Gonzalez v St. John Hosp & Med Ctr (On Reconsideration), 275 Mich.App. 290, 294-295; 739 N.W.2d 392 (2007). Expert testimony may not be based on mere speculation, and there "must be facts in evidence to support the opinion testimony of an expert." Teal v Prasad, 283 Mich.App. 384, 395; 772 N.W.2d 57 (2009). "In order to proceed against a hospital on a theory of vicarious liability, a plaintiff must offer expert testimony to establish specific breaches of the standards of care applicable to the individuals involved in the plaintiff's care and treatment alleged to be deficient." Gonzalez, 275 Mich.App. at 295 (citation omitted).
MCL 600.2955 governs admission of expert testimony in wrongful death actions and provides in relevant part:
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