Setterington v. Pontiac General Hosp., Docket No. 161134

• Decision Date: 23 May 1997
• Docket Number: Docket No. 161134
• Citation: 223 Mich.App. 594,568 N.W.2d 93
• Parties: Raymond SETTERINGTON, personal representative of the estate of Jane Fahr, deceased, Plaintiff-Appellee-Cross Appellant, v. PONTIAC GENERAL HOSPITAL, a municipal corporation, Defendant-Appellant-Cross Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 93

568 N.W.2d 93

223 Mich.App. 594

Raymond SETTERINGTON, personal representative of the estate of Jane Fahr, deceased, Plaintiff-Appellee-Cross Appellant, v. PONTIAC GENERAL HOSPITAL, a municipal corporation Defendant-Appellant-Cross Appellee.

Docket No. 161134.

Court of Appeals of Michigan.

Submitted Nov. 12, 1996, at Detroit.

Decided May 23, 1997, at 9:05 a.m.

Released for Publication Aug. 22, 1997.

Zamler, Mellen & Shiffman, P.C. by Gene Zamler (Bendure & Thomas by Mark R. Bendure, Detroit, of counsel), Southfield, for Plaintiff-Appellee-Cross Appellant.

Portnoy, Pidgeon & Roth by James M. Pidgeon, Bloomfield Hills, for Defendant-Appellant-Cross Appellee.

Before MARILYN J. KELLY, P.J., and JANSEN and M. WARSHAWSKY, ^* JJ.

MARILYN J. KELLY, Presiding Judge.

In this wrongful death action, defendant, Pontiac General Hospital, appeals and plaintiff Raymond Setterington, cross-appeals as of right following a jury verdict for plaintiff.

Defendant argues that plaintiff failed to present evidence on the issue of causation. It asserts that the trial court erred in concluding as a matter of law that the radiologists involved were agents of Pontiac General Hospital. It claims error in the court's denial of cross-examination of Dr. Sanford on the issue of bias. It alleges error, also, in the court's ruling that the radiologists could not be questioned about CT scans other than ones they interpreted. With respect to damages, defendant asserts that the trial court erred in allowing the jury to award damages to decedent's children beyond their eighteenth birthday. Lastly, it claims that the judge failed to reduce the jury's award of future damages to present value.

Plaintiff asserts that the trial court erred in denying his motion for additur and submitting the issue of comparative negligence to the jury. We affirm.

I

Concerned about a lump in her thigh, Jane Fahr had a CT scan taken at Pontiac General Hospital in August, 1987. The radiologist, Dr. Mittner, did not mention that the tumor could be cancerous. In reliance on the radiologist's report, Dr. Sanford, plaintiff's treating physician, regarded the condition as a hematoma and believed that a biopsy was not warranted.

In late January, 1988, Fahr returned to Pontiac General Hospital for another CT scan as the lump seemed to be enlarging. The radiologist, Dr. Khalid, did not include the possibility of a malignant tumor in his report. As a result, Dr. Sanford continued to believe that Fahr had a hematoma.

In early September, 1988, Fahr returned to Dr. Sanford who had another CT scan performed. Dr. Kayne the radiologist found an enlarged hemotoma. In a follow-up discussion with Dr. Sanford, Dr. Kayne assured Dr. Sanford that the lump did not appear to be dangerous or invasive. As a result, Dr. Sanford concluded that Fahr had a hematoma with a leaking blood vessel.

In October, 1988, the tumor was biopsied and the cancer diagnosed. By December, 1988, chest scans revealed metastasis. Fahr died on July 6, 1990, at the age of 32.

Raymond Setterington, Fahr's personal representative, brought a malpractice action against Dr. Choi, Dr. Sanford and Pontiac General Hospital, alleging that they failed to timely diagnose and treat Fahr. ¹ The jury found that the radiologists were agents of defendant Pontiac General Hospital and breached the standard of care. They also concluded that the breach was a proximate cause of Fahr's death. The jury returned a verdict for plaintiff in the amount of $251,554.62. The trial court denied plaintiff's motion for new trial as to damages or additur, as well as defendant's motion for new trial or remittitur.

II

First, defendant argues that plaintiff failed to produce evidence that the malpractice was a proximate cause of Fahr's death. It asserts that the only proximate cause testimony that plaintiff presented was that of Dr. Golomb. He testified that there is a five-year survival rate for sixty percent of the patients who undergo the treatment he recommended at the stage of plaintiff's cancer in the fall of 1987. However, he did not testify that plaintiff would have fallen within the sixty percent group. Moreover, defendant asserts that there was no evidence that Fahr would have survived even with the proper diagnosis and treatment.

This case is governed by the Supreme Court's holding in Falcon v. Memorial Hosp., 436 Mich. 443, 462 N.W.2d 44 (1990). In Falcon, the Supreme Court held that the family of a decedent could maintain an action for malpractice where the malpractice denied the decedent a substantial opportunity to survive. Id. at 461-462, 462 N.W.2d 44 (Levin, J.), 472-473 (Boyle, J.). The substantial opportunity rule applies to all medical malpractice actions. Blair v. Hutzel Hosp., 217 Mich.App. 502, 552 N.W.2d 507 (1996); Weymers v. Khera, 210 Mich.App. 231, 533 N.W.2d 334 (1995), rev'd on other grounds 454 Mich. 639, 563 N.W.2d 647 (1997).

Here, Dr. Golomb testified that, had Fahr received an accurate diagnosis of cancer in August, 1987 and received treatment, she would have had a sixty percent chance of survival. Hence, defendant is factually incorrect in asserting that there was no proximate cause testimony.

III

Defendant also argues that the claim as to Drs. Kayne and Khalid should not have been presented to the jury. The record reveals that defendant moved for a directed verdict on three grounds: (1) that the radiologists were not defendant's agents, (2) that the radiology report had not misled Dr. Sanford, and (3) that the testimony of Dr. Golomb that plaintiff would have had a 40% chance of dying in any event was insufficient to establish proximate cause. There was no separate argument made as to Drs. Kayne and Khalid. Therefore, the issue is not preserved for appeal. Associates Discount Corp. v. Gear, 334 Mich. 360, 364-366, 54 N.W.2d 687 (1952).

We find that the evidence as to the malpractice of Drs. Khalid and Kayne supported the jury's finding that each was professionally negligent. Dr. Kayne failed to diagnose the cancer in September, 1988. With a proper diagnosis there could have been a full month or more of treatment before metastasis was visible in December. Therefore, there was sufficient evidence to support the conclusion that the malpractice of Dr. Kayne was a proximate cause of the metastasis and Fahr's death. As to Dr. Khalid, whose malpractice was seven months earlier, the conclusion is even stronger.

IV

Defendant also argues that the verdict form should have apportioned damages between the three radiologists. Defendant failed to preserve this issue for appeal. Byrne v. Schneider's Iron & Metal, Inc., 190 Mich.App. 176, 184, 475 N.W.2d 854 (1991). Regardless, there is no apportionment of damages between multiple tortfeasors whose negligence has combined to create a single injury. Bowerman v. Detroit Free Press, 279 Mich. 480, 490, 272 N.W. 876 (1937); Sexton v. American Aggregates, 60 Mich.App. 524, 231 N.W.2d 449 (1975).

V

Next, defendant argues that the trial court erred in ruling as a matter of law that the radiologists were agents of defendant Pontiac General Hospital. We disagree.

Following discussion of the point at the start of trial, the trial court deferred decision. During trial, plaintiff called Dr. Mittner as a witness. The trial court then explained to the jury that it would ultimately decide the relationship of the radiologists to the hospital. At the conclusion of trial, the court instructed the jury that plaintiff had the burden of proving that the radiologists were agents of the hospital. Therefore, the record does not support defendant's claim that the court ruled as a matter of law that the radiologists were agents of the hospital.

VI

Defendant also claims that there is nothing in the record to suggest that the radiologists were ostensible agents of the hospital. Grewe v. Mount Clemens General Hosp., 404 Mich. 240, 273 N.W.2d 429 (1978). In Grewe, our Supreme Court stated:

Generally speaking, a hospital is not vicariously liable for the negligence of a physician who is an independent contractor and merely uses the hospital's facilities to render treatment to his patients. See Anno: Liability of hospital or sanitarium for negligence of physician or surgeon, 69 ALR2d 305, 315-316. However, if the individual looked to the hospital to provide him with medical treatment and there has been a representation by the hospital that medical treatment would be afforded by physicians working therein, an agency by estoppel can be found. See Howard v. Park, 37 Mich.App. 496, 195 N.W.2d 39 (1972), lv. den. 387 Mich. 782 (1972). See also Schagrin v. Wilmington Medical Center, Inc., 304 A.2d 61 (Del.Super.Ct., 1973).

In our view, the critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems. A relevant factor in this determination involves the resolution of the question of whether the hospital provided the plaintiff with Dr. Katzowitz or whether the plaintiff and Dr. Katzowitz had a patient-physician relationship independent of the hospital setting. [Grewe, supra at 250-251, 273 N.W.2d 429.]

Here, the evidence supports the jury's finding that an agency relationship existed between the radiologists and the hospital. Fahr did not have a patient-physician relationship with the radiologists independent of the hospital setting. Rather, the radiologists just happened to be on duty when Fahr arrived at the hospital. Moreover, the evidence showed that the radiology department is held out as part of the hospital, leading patients to understand that the services are being rendered by the hospital. The proofs support the jury's finding.

VII

Defendant argues that the trial court erred in failing to allow defendant to cross-examine Dr. Sanford on the issue of bias. On the second day of trial,...