Thomas v. McPherson Community Health Center

• Decision Date: 20 February 1987
• Docket Number: Docket No. 81614
• Citation: 155 Mich.App. 700,400 N.W.2d 629
• Parties: Louella THOMAS and Billie Thomas, Plaintiffs-Appellants, v. McPHERSON COMMUNITY HEALTH CENTER, Byron Road Medical Group, Dr. E.S. Woodworth, and Dr. R.V. Stuber, jointly and severally, Defendants-Appellees. 155 Mich.App. 700, 400 N.W.2d 629
• Court: Court of Appeal of Michigan — District of US

Page 629

400 N.W.2d 629

Louella THOMAS and Billie Thomas, Plaintiffs-Appellants, v. McPHERSON COMMUNITY HEALTH CENTER, Byron Road Medical Group Dr. E.S. Woodworth, and Dr. R.V. Stuber, jointly and severally, Defendants-Appellees.

Docket No. 81614.

155 Mich.App. 700, 400 N.W.2d 629

Court of Appeals of Michigan.

Submitted Nov. 5, 1985.

Decided Aug. 21, 1986.

Released for Publication Feb. 20, 1987.

[155 MICHAPP 702] Michael J. Gallagher, Brighton, for plaintiffs-appellants.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen, P.C. (by Robert G. Kamenec), Detroit, for McPherson Community Health Center.

Kohl, Secrest, Wardle, Lynch, Clark & Hampton (by Michael L. Updike), Farmington Hills, for Bryon Road Medical Group, P.C., Dr. E.S. Woodworth and Dr. R.V. Stuber.

Before D.F. WALSH, P.J., and MacKENZIE and FERGUSON, ^* JJ.

PER CURIAM.

This is a medical malpractice action. On February 26, 1979, defendants Dr. E.S. Woodworth and Dr. R.V. Stuber performed a tubal ligation on plaintiff Louella Thomas. Although the procedure was performed at defendant McPherson Community Health Center (Health Center or Center), it is undisputed that defendant physicians are not agents of the Center. Two weeks after the tubal ligation was performed, a perforation of Mrs. Thomas' small bowel was discovered, causing extensive peritonitis and necessitating the removal of approximately twelve inches of the bowel. A second surgery was required several days later to [155 MICHAPP 703] drain the infected pelvic area. On March 20, 1980, plaintiffs filed suit against the defendant physicians, Byron Road Medical Group, and McPherson Community Health Center. Jury trial commenced on April 24, 1984. At the close of plaintiffs' proofs, the trial court granted a directed verdict in favor of the Health Center. A judgment in favor of the remaining defendants was entered pursuant to a jury verdict of no cause of action. The trial court subsequently denied plaintiffs' motion for a new trial. Plaintiffs now appeal as of right. We affirm.

Plaintiffs' expert, Dr. Kalman Gold, testified by deposition upon his review of defendants' records that the perforation of Mrs. Thomas' bowel occurred during the tubal ligation procedure when the bowel was burned, either by direct contact with the cauterizer used in the procedure or by a defect in the cauterization machine which caused a spark to jump. He saw no evidence in the medical records as to what specific error in fact caused the perforation, however. Plaintiffs also presented the deposition testimony of defendant physician Woodworth. He stated that all normal precautions had been taken to insure that no tissues other than Mrs. Thomas' fallopian tubes were contacted by the cauterizer and that the cauterization machinery, owned by the Health Center, worked properly. Although Dr. Woodworth felt that there was a cause-and-effect relationship between the tubal ligation and the perforated bowel, neither he nor defendant physician Stuber, whose deposition testimony was also presented by plaintiffs, could specify the cause of the perforation.

Defendants' expert, Dr. Alvin Siegler, testified by video deposition that he found no breach of the normal standard of care in the tubal ligation procedure used by Woodworth and Stuber. He posed three explanations for Mrs. Thomas' perforated[155 MICHAPP 704] bowel: (1) an infectious process related to the tubal ligation; (2) direct trauma to the bowel; and (3) thermal trauma to the bowel. He thought the first to be the most likely possibility, through an abscess at the operative site which adhered to the bowel and eventually caused perforation. Siegler found no evidence of a thermal or burn-related injury in the pathology report he reviewed, but conceded that he was not cognizant of a pathologist's ability to find such evidence under the circumstances.

Plaintiffs first contend that the trial court erred in granting a directed verdict in favor of the Health Center on the ground that there was no evidence of the Center's negligence. Plaintiffs advanced three theories of liability against the Health Center. Two related to the furnishing of a defective cauterizer and the third to improper grounding of the cauterization device. Plaintiffs provided expert testimony that such actions would constitute a breach of the appropriate standard of care; however, they did not produce evidence in the form of expert opinion that the Health Center had in fact breached the standard of care. On appeal, plaintiffs essentially maintain that the Center's breach was so apparent that such expert testimony was unnecessary and that a directed verdict was therefore improper. We disagree.

The standard of review of motions for a directed verdict is well settled. The trial judge must accord the nonmoving party the benefit of viewing the testimony and all legitimate inferences that may be drawn therefrom in a light most favorable to the nonmoving party. If the evidence, when viewed in this manner, establishes a prima facie case, the motion must be denied. Caldwell v. Fox, 394 Mich. 401, 407, 231 N.W.2d 46 (1975). We conclude that, because plaintiffs failed to present expert opinion [155 MICHAPP 705] that the Center breached the appropriate standard of care and that the breach caused the injury, jury consideration of the Center's liability would have been the subject of speculation or conjecture. Under the circumstances, directed verdict for the Center was proper. Starr v. Providence Hospital, 109 Mich.App. 762, 766, 312 N.W.2d 152 (1981); Marchlewicz v. Stanton, 50 Mich.App. 344, 348, 213 N.W.2d 317 (1973), lv. den. 391 Mich. 813 (1974).

This Court has recognized that in medical malpractice cases issues of negligence and causation are normally beyond the ken of laymen. Baldwin v. Williams, 104 Mich.App. 735, 739, 306 N.W.2d 314 (1981), lv. den. 412 Mich. 873 (1981). Thus, in an action for malpractice against a hospital, expert testimony is required to establish the applicable standard of conduct, the breach of that standard, and causation. Starr v. Providence Hospital, supra, 109 Mich.App. at p. 765, 312 N.W.2d 152; Ewing v. Alexander, 93 Mich.App. 179, 187, 285 N.W.2d 808 (1979). There are two closely connected exceptions to this requirement. Where the negligence claimed is "a matter of common knowledge and observation," no expert testimony is required. Daniel v. McNamara, 10 Mich.App. 299, 308, 159 N.W.2d 339 (1968). And, where the elements of the doctrine of res ipsa loquitur are satisfied, negligence can be inferred. Neal v. Friendship Manor Nursing Home, 113 Mich.App. 759, 318 N.W.2d 594 (1982).

Plaintiffs argue that their proofs at trial were adequate to place their claims against the Health Center within either or both of the above exceptions. As to the "ordinary negligence" rule of Daniel, they posit that the Health Center's alleged furnishing of a defective electrocauterizer or failure to properly ground the equipment constituted "ordinary negligence" as evidenced by injury to a nontreated body part. In this connection, plaintiffs [155 MICHAPP 706] cite Higdon v. Carlebach, 348 Mich. 363, 83 N.W.2d 296 (1957), and Hand v. Park Community Hospital, 14 Mich.App. 371, 165 N.W.2d 673 (1968). See also Fogel v. Sinai Hospital of Detroit, 2 Mich.App. 99, 138 N.W.2d 503 (1965), and Gold v. Sinai Hospital of Detroit, Inc., 5 Mich.App. 368, 146 N.W.2d 723 (1966). The contention is without merit. Unlike the above cases, here Mrs. Thomas' injury was susceptible to a number of explanations, all of which required medical knowledge to discern. Thus, the "ordinary negligence" exception to the requirement of expert testimony does not apply on these facts.

Plaintiffs also rely upon the inference of negligence absent expert testimony which can be founded upon satisfaction of the following four elements: (1) the event is of a kind which does not occur absent negligence, (2) the event is caused by an instrumentality within the exclusive control of the defendant, (3) the event is not due to any voluntary action by the plaintiff, and (4) the explanation is more accessible to the defendant than the plaintiff, citing Neal v. Friendship Manor Nursing Home, supra, 113 Mich.App. at pp. 764-765, 318 N.W.2d 594. Although plaintiffs insist that they do not invoke the doctrine of res ipsa loquitur, apparently in recognition that this Court and our Supreme Court have declined to expressly adopt the doctrine in medical malpractice cases, we note that plaintiffs rely upon the precise elements of res ipsa loquitur. See Gadde v. Michigan Consolidated Gas Co., 377 Mich. 117, 124, 139 N.W.2d 722 (1966).

Assuming without deciding that res ipsa loquitur may be invoked in this case, it is clear that plaintiffs have failed to establish the second element of that doctrine, i.e., that the negligent conduct causing Mrs. Thomas' injury was within the exclusive control of the Health Center. The [155 MICHAPP 707] thrust of plaintiffs' evidence established that the defendant physicians were primarily responsible for Thomas' tubal ligation. The Health Center merely provided the operating facilities and some supportive staff. Thomas was at all times a patient of the physicians of Byron Road Medical Group not the Center. The Health Center had little, let alone exclusive, control of the actual tubal ligation procedure. Plaintiffs argue that they have satisfied this factor by a showing of concurrent control...