Shivers v. Schmiege

• Decision Date: 29 September 2009
• Docket Number: Docket No. 284635.
• Citation: 285 Mich. App. 636,776 N.W.2d 669
• Parties: SHIVERS v. SCHMIEGE.
• Court: Court of Appeal of Michigan — District of US

776 N.W.2d 669

285 Mich. App. 636

SHIVERS v. SCHMIEGE.

Docket No. 284635.

Court of Appeals of Michigan.

Submitted July 14, 2009, at Detroit.

Decided September 29, 2009, at 9:00 a.m.

Karl J. Weyand, P.C. (by Karl J. Weyand, Jr.), Saginaw, Lawrence J. Acker,

P.C. (by Lawrence J. Acker), Bloomfield Hills, and Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, for plaintiff.

Collins, Einhorn, Farrell & Ulanoff (by Deborah A. Hebert), Southfield, for Susan Schmiege, M.D., and Valley Anesthesia, P.C.

Before: OWENS, P.J. and MURRAY and SERVITTO, JJ.

OWENS, P.J.

In this medical malpractice case, defendants Susan Schmiege, M.D., and Valley Anesthesia, P.C. (hereafter defendants), appeal as of right from a judgment following a jury trial wherein the jury found in favor of plaintiff and awarded almost $1.8 million in economic and noneconomic damages. We affirm in part, reverse in part, and vacate the future economic damages award of $522,000.

I. FACTS AND PROCEDURAL HISTORY

In 2002, plaintiff was seventy years old. He was admitted to defendant St. Mary's Medical Center of Saginaw, Inc., to have his bladder removed because he was experiencing a lot of bleeding. He did not suffer from any central nervous system disorders or arm or leg weakness at that time.

The surgery did not go smoothly. At one point, a blood vessel was damaged and because of potential damage to plaintiff's colon from reduced blood supply, a colonoscopy had to be performed during the middle of the operation. He was in surgery about six hours. As he came out of the anesthesia, the nurse caring for him reported some weakness in both his hands. That condition was unchanged by the time he was moved to intensive care. Later that evening, defendant Dr. Schmiege noticed that plaintiff's left arm and hand were normal but the right arm was "abducting" (involuntarily moving up, away from his torso). As nurses examined plaintiff through the night, they recorded that his condition was not improving, and by around midnight, he had lost sensation in both hands. By 3:47 a.m., he had lost feeling in both arms and could not bend or move his fingers.

In the morning, doctors arrived and discovered that plaintiff could not move his left arm at all and his right arm had "significant neurological deficits." Doctors viewed this as a medical emergency and performed an emergency decompressive cervical laminectomy. However, by that time plaintiff had lost most of the use of his hands and arms. Plaintiff now requires a significant level of care and is in considerable pain from this injury.

After a trial, the jury returned a verdict finding Dr. Schmiege was negligent and that her negligence was a proximate cause of plaintiff's injuries. The jury awarded past and future economic and noneconomic damages totaling $1,750,500.

II. CAUSATION

Defendants argue that plaintiff failed to prove causation in that plaintiff failed to produce sufficient expert testimony proving that a delay caused him to suffer a worse injury than he would have suffered without the delay. We disagree.

A. STANDARD OF REVIEW

Defendants raised this issue in their motion for judgment notwithstanding the verdict or a directed verdict. This Court reviews de novo a trial court's decision on such motions. Smith v. Jones, 246 Mich.App. 270, 273, 632 N.W.2d 509 (2001). An appellate court "review[s] the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Only if the evidence so viewed fails to establish a claim as a matter of law, should the motion be granted." Wilkinson v. Lee, 463 Mich. 388, 391, 617 N.W.2d 305 (2000).

B. ANALYSIS

First, this is not a "loss of opportunity" case. In Stone v. Williamson, 482 Mich. 144, 753 N.W.2d 106 (2008), Chief Justice TAYLOR explained in his opinion that this doctrine is available "`where a plaintiff cannot prove that a defendant's actions were the cause of his injuries, but can prove that the defendant's actions deprived him of a chance to avoid those injuries.'" Id. at 152, 753 N.W.2d 106, quoting Vitale v. Reddy, 150 Mich.App. 492, 502, 389 N.W.2d 456 (1986). This case is even less of a "lost opportunity" case than Stone, because there, had the plaintiff not sought medical treatment at all, the aneurysm in his leg would have ruptured and likely would have killed him. Here, had plaintiff not sought medical treatment, he would have had bloody urine and functional arms. In Velez v. Tuma, 283 Mich.App. 396, 770 N.W.2d 89 (2009), the plaintiff did not plead a "lost opportunity" claim but only a traditional medical malpractice claim. Despite being instructed on "loss of opportunity," the jury found in favor of the plaintiff. This Court fully analyzed the relevant caselaw, agreed with the plaintiff that hers was a traditional medical malpractice claim, and affirmed the jury's decision. This case is factually and legally very similar to Velez, and we also conclude that plaintiff pleaded a traditional medical malpractice claim.

Turning to defendants' claim regarding the sufficiency of the evidence, the record does not reveal any testimony by a neurosurgical expert stating that an earlier laminectomy would have had a specific, better result. However, the evidence described by plaintiff, and reasonable inferences from it, is taken in the light most favorable to him. Here, the testimony clearly revealed that time was a factor. The evidence cited by plaintiff shows that his symptoms grew worse through the night. When defendant Dr. Bapineedu Maganti arrived in the morning, he was dismayed at plaintiff's condition and did his best to find out why nothing had been done earlier. Dr. Schmiege testified that she agreed with Dr. Maganti's assessment that plaintiff's condition during the night qualified as a medical emergency. When Dr. Mark W. Jones found out what was happening, he ordered an immediate MRI and performed the laminectomy as soon as possible. That procedure did do a bit to relieve plaintiff's condition. From this evidence, we can infer that an earlier procedure would have helped.

Defendants argue that Dr. Schmiege's actions did not cause plaintiff's injury and that, if anyone caused plaintiff's injury, it was one of the nurses. They note that at 7:00 p.m., when Dr. Schmiege last examined him, plaintiff exhibited to her no warning signs of neurological impairment. This indeed is what Dr. Schmiege noted, but this Court examines all the evidence in a light most favorable to plaintiff. The jury may have decided that this was the point at which Dr. Schmiege acted negligently and that she should have diagnosed plaintiff's bilateral problems at 7:00 p.m. Also, there is a dispute over what happened when Nurse Diana R. Kazmerski, concerned about plaintiff's unimproved condition, paged Dr. Schmiege around midnight. Dr. Schmiege testified that she never got that call, but Nurse Kazmerski testified that she made the call, it was answered, and the person whom she thought was Dr. Schmiege said she would be right in to see plaintiff. The next nurse on duty, Nurse Sarah Passariello-Hartman, testified that someone she thought was Dr. Schmiege examined plaintiff at 2:00 a.m., but Dr. Schmiege testified that she was at home at that time. The jury, weighing the credibility of these two witnesses, could have been persuaded that Dr. Schmiege was trying to protect herself or simply did not remember accurately what happened that night. This testimony is sufficient evidence to allow the jury to infer that Dr. Schmiege was negligent in her treatment of plaintiff and that her failure caused a delay that cost plaintiff the use of his arms.

III. JURY AWARD OF FUTURE ECONOMIC DAMAGES

Defendants argue that there was no evidence presented showing that plaintiff would suffer any future economic damages. We agree.

A. STANDARD OF REVIEW

This issue was raised in defendants' motion for a new trial. This Court reviews for abuse of discretion a trial court's decision whether to grant a new trial. Barnett v. Hidalgo, 478 Mich. 151, 158, 732 N.W.2d 472 (2007). "An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes." Id.

B. ANALYSIS

Defendants contend that plaintiff's counsel argued for attendant care services as an element of future economic damages. On the contrary, in context, counsel's reference to attendant care was a "suggestion"— as counsel himself put it—regarding how to calculate plaintiff's "pain and suffering [and] intimacy," which of course are noneconomic damages. Counsel argued the following to the jury in the context of noneconomic damages:

[H]ow do you—calculate items of this type? I'm going to make a couple suggestions.

* * *

. . . But if you try to put it into real life terms, for example, instead of requiring the assistance of his daughters, if [plaintiff] had an aid, a full-time aid, even at minimum wage and they were with him 16 hours a day, and, remember, he needs care 24 hours a day, you know, it doesn't take long to do a calculation. And if you paid them more than minimum wage, if they are skilled workers, because that's what he needs to or could benefit from in order to make his life that much easier than it currently is, those calculations quickly, in the course of a year, are in excess of 50 to $70,000.

Would that be fair compensation for Mr. Shivers in order to cope for the balance of his life and coping the previous five years with the pain that he suffers? [Emphasis supplied.]

Buttressing this conclusion is that counsel —after listing braces, rails, handicaps, and a hospital bed as examples of economic damages—returned to figures similar to the estimated cost of attendant care services in referencing noneconomic damages. Specifically, counsel stated:

His non-economic damages leads us back here to this difficult issue. Given the same circumstances, does $50,000 every year, does $100,000 every year, is that fair compensation for complete loss of the use of your hands to do...