Tobin v. Providence Hosp.

• Decision Date: 05 April 2001
• Docket Number: Docket No. 210536.
• Citation: 624 N.W.2d 548,244 Mich. App. 626
• Parties: Janet TOBIN, as personal representative of the Estate of Rollin Tobin, deceased, Plaintiff-Appellee, v. PROVIDENCE HOSPITAL, a Michigan hospital corporation, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

624 N.W.2d 548

244 Mich. App. 626

Janet TOBIN, as personal representative of the Estate of Rollin Tobin, deceased, Plaintiff-Appellee, v. PROVIDENCE HOSPITAL, a Michigan hospital corporation, Defendant-Appellant.

Docket No. 210536.

Court of Appeals of Michigan.

Submitted September 19, 2000, at Detroit.

Decided February 16, :10 a.m.

Released for Publication April 5, 2001.

The Googasian Firm, P.C. (by George A. Googasian and Thomas H. Howlett), Bloomfield Hills, for the plaintiff.

Kitch, Drutchas, Wagner & Kenney, P.C. (by Jeremiah J. Kenney and Susan Healy Zitterman), Detroit, for the defendant.

Before OWENS, P.J., and MICHAEL J. KELLY and HOEKSTRA, JJ.

OWENS, P.J.

In this medical malpractice case, involving the death of Rollin Tobin on November 13, 1993, following hip replacement surgery, defendant appeals as of right from the jury verdict totaling $6,485,681.06, including taxable costs, attorney fees, and statutory interest. We reverse and remand for a new trial.

I

Plaintiff, the wife of the decedent and personal representative of his estate, alleged that her husband died as a result of the transfusion, during hip replacement surgery, of blood contaminated by Yersinia bacteria, contrary to his express request that any transfusions contain only his own (autologous) blood. Because he was concerned about receiving someone else's (allogeneic) blood, the decedent donated three units of autologous blood before the surgery. During the course of the surgery that began at 7:30 a.m. on November 12, 1993, he received a transfusion of those three units of blood and additionally received a transfusion of one unit of allogeneic blood. Both the medical technologist who released the fourth unit of blood from the hospital's blood bank and the nurse anesthetist who administered the transfusion testified that, although they could not specifically recall that particular unit of blood, they routinely observed blood before releasing or administering it, and they stated that if this particular unit had appeared unusual they would not have used it.

While the decedent was in the recovery room after the operation, he was observed to be hypotensive—that is, his blood pressure dropped below normal levels—with his blood pressure dropping from 100/60 to 70/40. He was also tachycardic—his heart was racing—with a pulse rate of up to 160. He was bleeding excessively, his coagulation factors were elevated, and his fibrinogen level was low; this indicated a depletion in the level of clotting factors in his blood. According to one of plaintiff's expert witnesses, this suggested one of two alternatives: either the decedent was "bleeding out"-that is, he was losing blood rapidly and the blood was being replaced by liquids that did not contain clotting factors—or the clotting factors were being consumed in disseminated intravascular coagulation (DIC).¹ The decedent was therefore returned to the operating room at 3:07 p.m. in an attempt to determine why the continued bleeding was occurring.

A blood chemistry test (CBC) obtained at 3:45 p.m. disclosed an extremely low white cell count with indications of increased levels of immature white blood cells (band cells). This was an indication that the decedent's body was fighting an infection and, in an attempt to obtain sufficient white blood cells to combat the infection, was releasing immature cells. At 4:00 p.m., the decedent's temperature was twice recorded at 109.4 degrees. He received numerous units of additional blood during the second surgery.

In the recovery room after the second operation, at approximately 6:44 p.m., tests indicated the presence of DIC and his white cell count continued to drop. At 8:00 p.m. the decedent was moved to the critical care unit and sometime between then and 10:00 p.m. it was first recognized that he might be fighting sepsis. The decedent received his first dose of major antibiotics between midnight and 1:00 a.m. He died at approximately 7:00 a.m. on November 13, 1993. The subsequent autopsy concluded that the decedent died "as a consequence of sepsis and disseminated intravascular coagulation caused by transfusion of a unit of red blood cells contaminated with yersinia enterocolitica." Investigation by the hospital, the American Red Cross, and the Centers for Disease Control determined that the one allogeneic unit of blood the decedent received during his initial operation had been contaminated with Yersinia bacteria.

Before trial, defendant moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10) on a variety of grounds. Relevant to this appeal, defendant argued that plaintiff's experts either were not qualified to testify about the standard of practice regarding the visual inspection of donor blood or had conceded that comparison of the color of the blood in the donor bag with the color of the blood in the attached segment of plastic tubing was not required by the standard of practice; that plaintiff had failed to demonstrate proximate cause with respect to the visual inspection of the donor blood because plaintiff had not shown that it was more probable than not that a detectable color change had already occurred when the blood was provided for transfusion to the decedent; and that plaintiff's breach of contract claim was barred by M.C.L. § 566.132(g); MSA 26.922(g) (commonly known as the statute of frauds) because the "contract" was not contained in a signed writing, and also because the decedent consented to the administration of additional transfused blood if it was necessary. Defendant also moved for partial summary disposition regarding plaintiff's claim for damages in excess of the statutory cap on noneconomic damages, claiming that the statutory cap provided by M.C.L. § 600.1483; MSA 27A.1483 applied retroactively to this claim for damages. The trial court granted summary disposition with respect to plaintiff's breach of contract claim, but denied summary disposition of the other claims.²

Immediately before trial, defendant moved in limine to restrict or bar the testimony of plaintiff's expert medical witnesses. Among defendant's arguments was the claim that the proposed testimony of Mark Brecher, M.D., concerning his observations of a color change in blood contaminated by Yersinia bacteria was not scientifically reliable and that the standard of practice testimony offered by Dr. Brecher should be excluded because the proposed expert had conceded that a community hospital in 1993 was not required to conduct a comparison of the color of the blood in the donor bag with the color of the blood in the tubing segment attached to the bag, and the expert had also conceded he was not qualified to testify regarding the applicable standard of practice for a delay in diagnosis. Defendant also moved in limine to exclude from plaintiff's case any mention of the decedent's desire to avoid the administration of nonautologous blood. Defendant contended that, given the trial court's dismissal of plaintiff's breach of contract claim, such testimony would not be relevant and its prejudicial effect would outweigh its probative value. The trial court denied defendant's motions in limine.

At the conclusion of the trial, the jury found that defendant was liable for the decedent's death and awarded $426,872 for loss of past financial support and services covering a period of almost four years (this amount was reduced to $295,833 by the trial court because of collateral source payments), together with a total of $426,832 for the four years after the trial (also reduced by collateral source payments to $331,116). The jury further awarded plaintiff $750,000 for the pain and suffering endured by the decedent between the time of the injury and the time of his death, $2 million for the family's loss of society and companionship in the past, and $2 million for the family's loss of society and companionship with the decedent in the year 1997, but nothing for succeeding years. The trial court subsequently denied defendant's motions for judgment notwithstanding the verdict, for a new trial, and for remittitur.

II

Plaintiff claimed that as a result of the decedent's expressed desire not to receive a transfusion of allogeneic blood, the decedent and defendant had a contract that defendant breached by administering a unit of such blood during the hip replacement surgery. The trial court granted summary disposition for defendant regarding this claim. Nevertheless, the trial court overruled defendant's objection to plaintiff's counsel or her witnesses being permitted to mention the decedent's desire not to receive allogeneic blood. Defendant contends that this testimony was not relevant to any issue of malpractice or damages, that hearsay testimony relating to this irrelevant claim was improperly admitted, and that any minimal relevance that this evidence might have possessed was outweighed by the danger of unfair prejudice. We agree.

As defendant correctly notes, plaintiff's counsel began his opening statement by stating:

May it please the Court, ... Jan Tobin and her family have waited a long time for the opportunity to present this case to you because we believe that as fair-minded citizens in this community, you will agree with us that a patient at a hospital is entitled to make a choice not to receive a stranger's blood and if— and perhaps more importantly, if while helpless on a table that choice is taken from him—

* * *

We believe that as fair-minded jurors, you will agree with us that an individual that goes into a hospital has the right to make a choice not to receive a stranger's blood, and if while helpless on an operating table that choice is taken from him, he is entitled to a chance, a chance to survive.

Jerry Tobin was not given a choice and he was not given a chance; and that's what this case is all about. [Emphasis supplied.]

Plaintiff's counsel went on to inform the jury of the decedent's desire to avoid receiving anyone else's blood or...