Taylor v. Kent Radiology

• Decision Date: 22 December 2009
• Docket Number: Docket No. 286078.
• Citation: 286 Mich. App. 490,780 N.W.2d 900
• Parties: TAYLOR v. KENT RADIOLOGY, PC.
• Court: Court of Appeal of Michigan — District of US

780 N.W.2d 900

286 Mich. App. 490

TAYLOR v. KENT RADIOLOGY, PC.

Docket No. 286078.

Court of Appeals of Michigan.

Submitted September 9, 2009, at Grand Rapids.

Decided December 22, 2009, at 9:05 a.m.

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Gruel Mills Nims & Pylman LLP (by Scott R. Melton and William F. Mills), Grand Rapids, for plaintiffs.

Berry, Johnston, Sztykiel, Hunt & McCandless, P.C. (by Steven C. Berry and Christopher S. Berry), Zeeland, for Kent Radiology, P.C., and Louis Bixler, M.D.

Before: MICHAEL J. KELLY, P.J., and KIRSTEN FRANK KELLY and SHAPIRO, JJ.

PER CURIAM.

In this medical malpractice case, defendants Kent Radiology, P.C., and Louis Bixler, M.D., appeal as of right a verdict in favor of plaintiffs, Richard and Karen Taylor.¹ On appeal, defendants argue that the trial court erred when it denied their motions for a directed verdict and judgment notwithstanding the verdict, erred when it refused to instruct the jury on the burden of proof in medical malpractice cases involving a lost opportunity to survive or achieve a better outcome, erred when it directed a verdict in plaintiffs' favor as to defendants' defense of comparative negligence, erred with regard to the evidence concerning plaintiffs' economic losses, and erred when it denied defendants' motion for a new trial or remittitur. On cross-appeal, plaintiffs argue that the trial court erred when it refused to ask for the recall of the judge who presided over the trial to hear plaintiffs' postjudgment motion for a new trial or additur and erred when it denied that same motion. Because we conclude that there were no errors warranting relief, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

A. TAYLOR'S INJURY AND TREATMENT

Taylor testified that he owns and operates Richard Taylor Mobile Home Services. His business involves setting up and finishing mobile and modular homes. He explained that the work is hands-on and that he performed much of the work himself. Taylor stated that he is no longer able to perform the work because he injured his foot.

Taylor fell and injured his foot while performing finishing work on a home. At the time, he was working on a ladder just under the eaves of a single-story home. He indicated that he was about four or five feet off the ground when the ladder, which was placed on beach sand, started to slide after the sand gave way. Taylor said that his leg got caught in the ladder as the ladder spun and fell. Another builder at the worksite took Taylor home after the fall. Taylor said that when he got home he iced his foot, which was "sorer than the dickens."

Taylor did not remember the exact date of the injury and admitted that he told a staff person at one physician's office that the injury occurred sometime after Thanksgiving 2003. However, he testified that he stayed off his foot after the injury and went to see his family physician, Dr. Richard Crissman, within one or two days. Crissman testified that he saw Taylor for his foot injury on December 4, 2003. In his notes, Crissman wrote that Taylor had "fallen through and off of a ladder" on the day before the office visit. Crissman testified that he physically examined Taylor's foot and did not "feel that there was a fracture there." Crissman diagnosed Taylor with a sprained "foot/ankle" and treated him by applying a supportive dressing called a gelocast.

On December 8, 2003, Taylor went back to see Crissman with continued complaints of pain in his foot. After this visit, Crissman sent Taylor to St. Mary's Hospital² for an x-ray of his foot. On that day, Dr. Louis Bixler was the radiologist assigned to examine the emergency films and plain films at St. Mary's hospital.

Bixler testified that on a typical day he would examine a minimum of 150 studies. Bixler had no specific memory of viewing the films that were part of the foot study done for Taylor's right foot. However, he acknowledged that he prepared a report for the study, which contained three views: AP, lateral, and oblique.³ Bixler testified that the study included two lateral views— one that was light and one that was dark. Bixler stated that he typically prefers the darker views because you can see bone detail better. In his report, Bixler noted that he saw "no evidence of fracture" in the AP and oblique views. Bixler testified that he must have reviewed all the views, including the lateral views, because he would not have reviewed an incomplete study. For that reason, he concluded that the missing reference to the lateral views in his report must have been a typographical error. Bixler's report also included a recommendation for a bone scan of the tarsometatarsal joints if the symptoms persisted.

Crissman testified that he received Bixler's report on the same day that the x-rays were taken, but did not see Taylor until December 9, 2003. Taylor said that Crissman told him the results of the x-rays: that there was no break and that it was only a sprain. Crissman again wrapped Taylor's foot in a gelocast. Taylor testified that Crissman told him to elevate his foot and let "pain be your guide" with regard to activities. Taylor said he wrapped his foot tight each day and returned to work. He even began to duct-tape his boot in order to stabilize his foot and make it possible to "hobble on it."

Crissman saw Taylor for continued reports of foot pain from December 2003 through March 2004. Finally, after an appointment on March 12, 2004, Crissman suggested that Taylor see an orthopedic surgeon, Dr. Kevin Kane, with River Valley Orthopedics.

Taylor went to River Valley Orthopedics and had new x-rays taken. A staff person at the office then approached Taylor and informed him that he had a broken ankle. Taylor testified that he got a little "testy" at this point and asked, "`What do you mean it's broke?'" Taylor explained that he had been working on "this thing." The staff person also told him that Kane had looked at the film and would rather pass it on to Dr. Patricia Kolodziej because she was more experienced with ankle surgeries.

Taylor first saw Kolodziej on April 8, 2004. Kolodziej informed Taylor that he had a broken talus. Kolodziej recommended surgery to try and reconstruct the talus and "put the pieces back in as normal a position as possible and try and get it to heal." She also told Taylor that a broken talus was a very serious injury and that he "would not have a normal foot regardless of the timing of the surgery."

One of Taylor's expert orthopedic surgeons, Dr. James Gilbert, testified that the key to a successful treatment of a talus fracture is the accurate restoration of the joint surfaces. Gilbert noted that the talus bears more weight than any other bone in the body and, for that reason, there is an advantage to treating a talus fracture as early as possible. This is because "delayed treatment allows further collapse of the fracture fragments and further displacement. And it is much, much easier to reposition the fragments back to their anatomical position if the fracture is treated fresh rather than delayed." Gilbert stated that the film of Taylor's talus showed evidence that the talus had begun to collapse and evidence of avascular necrosis—bone death caused by loss of blood flow.

Kolodziej tried to surgically repair Taylor's talus on April 23, 2004. However, after the surgery Kolodziej had x-rays taken, and those x-rays revealed that one of the fragments had displaced. For that reason, the surgery had to be redone. During the second surgery, Kolodziej felt that she had to place a screw into the joint in order to secure the fragment. Although Kolodziej testified that Taylor's recovery was better than that of the average person with this injury, she admitted that the first surgery was harder as a result of the delayed diagnosis and agreed that the second surgery would not have been necessary were it not for the delayed diagnosis. Kolodziej monitored Taylor over the next few months and noted that the repair appeared to hold, but that the area of the talus that broke off showed signs of avascular necrosis and that the subtalar joint showed signs of arthritis within that time.

B. THE PRESENT LITIGATION

In May 2006, plaintiffs sued defendants. Taylor sued Bixler for breaching the standard of care applicable to a radiologist by failing to diagnose the talus fracture on December 8, 2003. Taylor sued Kent Radiology and Trinity Health-Michigan under the theory that they were vicariously liable for Bixler's malpractice. However, plaintiffs eventually stipulated to the dismissal of Trinity Health-Michigan.

In June 2006, defendants answered plaintiffs' complaint. In their answer, defendants asserted as a defense that Taylor's claims were barred because he sustained the original injury as a result of his failure to use ordinary care while working. The case eventually proceeded to trial before Judge Dennis Kolenda in February 2008.

The jury returned a verdict in favor of plaintiffs on February 26, 2008. The jury found that Bixler had breached the standard of care and that the breach caused Taylor to suffer injuries. The jury awarded Taylor $10,775.18 in past economic damages, which was the total cost of Taylor's second surgery. The jury also awarded Taylor $262,900 in future economic damages. The jury did not award Taylor any noneconomic damages and did not award Karen Taylor any damages—economic or noneconomic.

On March 17, 2008, the trial court entered a judgment in favor of plaintiffs for $273,675.18. On March 28, 2008, plaintiffs moved for additur, and on April 4, 2008, defendants moved for judgment notwithstanding the verdict, remittitur, or a new trial. Judge Mark Trusock, who had replaced Judge Kolenda after Judge Kolenda retired, heard these motions. On June 9, 2008, Judge Trusock denied the parties' motions.

This appeal followed.

II. LOST OPPORTUNITY FOR A BETTER OUTCOME

A. STANDARDS OF REVIEW

We shall...