Vitale v. Reddy

• Decision Date: 08 July 1986
• Docket Number: 80229,Docket Nos. 80228
• Citation: 150 Mich.App. 492,389 N.W.2d 456
• Parties: Salvatore VITALE, Plaintiff-Appellant, v. V.M. REDDY, M.D., Defendant-Appellee. Salvatore VITALE, Plaintiff-Appellant, v. STATE of Michigan, the Department of Mental Health and Plymouth Center for Human Development, Defendants-Appellees. 150 Mich.App. 492, 389 N.W.2d 456
• Court: Court of Appeal of Michigan — District of US

Page 456

389 N.W.2d 456

Salvatore VITALE, Plaintiff-Appellant, v. V.M. REDDY, M.D., Defendant-Appellee.

Salvatore VITALE, Plaintiff-Appellant, v. STATE of Michigan, the Department of Mental Health and Plymouth Center for Human Development,

Defendants-Appellees.

Docket Nos. 80228, 80229.

150 Mich.App. 492, 389 N.W.2d 456

Court of Appeals of Michigan.

Submitted Nov. 19, 1985.

Decided April 8, 1986.

Released for Publication July 8, 1986.

[150 MICHAPP 494] Kelman, Loria, Downing, Schneider & Simpson (by Michael L. Pitt), Detroit, for plaintiff.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George L. McCargar and Alan Hoffman, Asst. Attys. Gen., for defendant.

Before T.M. BURNS, P.J., and HOLBROOK and PAYANT ^*, JJ.

PER CURIAM.

Plaintiff, Salvatore Vitale, instituted this cause of action under the wrongful death statute, M.C.L. Sec. 600.2922; M.S.A. Sec. 27A.2922, as the personal representative of the estate of his [150 MICHAPP 495] deceased son, Michael D. Vitale. Plaintiff's decedent was 27 years old and mentally retarded. For 15 years he had resided at the Plymouth Center for Human Development, a state-operated facility for the care, education and development of the mentally retarded. On January 4, 1979, a ward attendant noted that Michael acted as if he were going to pass out and also that he had fallen on two occasions. On January 5, 1979, after being advised that Michael had an unsteady gait and was sleeping too much, defendant Reddy, a physician at the Plymouth Center, examined Michael. Michael experienced similar problems on January 7 and 8. On January 8, Dr. Reddy reexamined Michael and adopted the belief that his symptoms were the side effects of his medication. Later, on January 8, Michael was urgently transferred to the University of Michigan Hospital where he was examined by Dr. Ronald Bailey.

On January 9, after several tests were performed, Dr. Bailey determined that Michael was suffering from brain-stem problems. Michael had a complete occlusion (closure) of two major arteries leading to a part of the brain. The occlusions were formed by blood clots (thrombosis). The main problem was the total occlusion in the basilar artery. There was also a total occlusion of the left vertebral artery, one of the two arteries leading to the basilar artery. Apparently, such occlusions usually develop over time and evolve from a "partial" to a "total" status. Moreover, total occlusions usually cannot be reversed, but there is some possibility of reversing partial occlusions. In this case, Heparin, a blood thinner, was administered in an attempt to reverse the occlusions. This achieved only minimal results with no substantial improvement.

Because the brain stem is a portion of the brain which, in part, controls the body's basic cardiovascular[150 MICHAPP 496] and breathing functions, steps were taken in an attempt to prevent Michael from developing difficulties related to brain stem dysfunction. For instance, a tube was inserted into his trachea in order to mechanically ventilate him. Other action was taken because of some concern over swelling of the brain. However, during the three to three and one-half month period before Michael's death, he ran into numerous problems. He developed pulmonary edema (accumulation of fluid in the lungs) which was presumed to have been on a neurogenic basis and related to the occlusion. He also experienced several episodes of pneumonia (infection of the lung) and a local infection near the tracheostomy site. He finally developed more pneumonia and status epilepticus (continuous seizure activity). The seizures apparently were not related to the brain stem problems, but made hydrating, feeding, maintaining electrolyte balance and other treatments more difficult. Eventually, Michael had a cardiac arrest (stoppage of the heart). His death occurred on June 4, 1979.

On January 5, 1981, plaintiff filed a complaint in circuit court, naming Dr. Reddy as one of several defendants. He also instituted a cause of action in the Court of Claims against the State of Michigan and the Plymouth Center. The cases were consolidated and the additional defendants who were originally named were dismissed from the suit. Plaintiff's complaint set forth a wrongful death action, wherein he asserted claims of medical malpractice, intentional tort, violation of the mental health code, and constitutional and civil rights violations.

Plaintiff alleged breaches of many duties by defendants. Allegedly, Dr. Reddy failed to exercise the requisite degree of Trial was scheduled for June 4, 1984, and on that date defendants orally moved for summary judgment pursuant to GCR 1963, 117.2(3), now MCR 2.116(C)(10), in regard to the element of causation. During oral argument on the motion, plaintiff objected to defendants' lack of affidavits in support of their motion. ¹ Defendant also moved for summary judgment pursuant to GCR 1963, 117.2(1), now MCR 2.116(G)(8), on the basis of governmental immunity. After listening to the parties' arguments, the trial court granted summary judgment in favor of defendants on the ground that there was no genuine issue as to any material fact and that defendants were entitled to judgment as a matter of law on all the claims [150 MICHAPP 498] because plaintiff could not establish the requisite causal connection between defendants' alleged wrongful acts and plaintiff's decedent's injuries and death. The court also ruled that governmental immunity barred some of the claims. Plaintiff now appeals as of right.

skill and care when diagnosing and treating Michael. Plaintiff alleged that [150 MICHAPP 497] Dr. Reddy should have recognized Michael's serious condition earlier than she did and should have ordered him to be transferred sooner to a qualified hospital for prompt diagnosis and treatment. There were many other allegations of failure to properly supervise and provide adequate medical care. There were also allegations that the defendants failed to adopt necessary policies and procedures. Plaintiff alleged that as a direct and proximate result of defendants' breaches of duties, willful and wanton violations of duties, violations of the health code, and violations of constitutional rights, Michael was caused to incur extreme pain and suffering and eventual death. Both his estate and family suffered damages because of this.

I

Summary judgment pursuant to GCR 1963, 117.2(3), is proper only if there is no genuine issue as to any material fact and the party in whose favor judgment is granted is entitled to judgment as a matter of law. A motion based on GCR 1963, 117.2(3) is designed to test the factual support for a claim. Maccabees Mutual Life Ins. Co. v. Dep't of Treasury, 122 Mich.App. 660, 663, 332 N.W.2d 561 (1983), lv. den. 417 Mich. 1100.15 (1983). A court must consider the pleadings, affidavits, and other available evidence and be satisfied that the claim or position asserted cannot be supported by evidence at trial because of some deficiency which cannot be overcome. 122 Mich.App. 663, 332 N.W.2d 561. The court must give the benefit of any reasonable doubt to the party opposing the motion and inferences are to be drawn in favor of that party. 122 Mich.App. 663, 332 N.W.2d 561.

Defendants moved for summary judgment, arguing that there was no material issue of fact in regard to causation and that they were therefore entitled to judgment as a matter of law. Defendants argued that the undisputed facts indicated that even if they had committed any of the wrongful acts or omissions which were alleged, such acts or omissions were not a cause of Michael's injuries or death. In support of their argument, defendants relied on the deposition testimony of Dr. Ronald Bailey. Defendants contend, in essence, that Dr. [150 MICHAPP 499] Bailey's testimony indicates that, even if Michael had been taken to the hospital earlier, he still would have suffered the same injuries and died.

In response, plaintiff submitted no other evidence. Rather, plaintiff argued that defendants were required to produce some The trial court held that there was no genuine issue of fact and that defendants were entitled to summary judgment in their favor because the required causal connection did not exist. We believe that the trial court improperly granted summary judgment on this ground.

medical evidence, by way of deposition or affidavit, that it was probable that Michael would have died from the thrombosis even if the diagnosis had been made earlier. Plaintiff claimed that defendants had submitted no evidence which would show the probability that Michael would have died if the diagnosis had been made earlier. Plaintiff also argued that, even if it was probable that Michael would have died, plaintiff should be able to recover for the "value of the lost chance" of survival. Plaintiff felt that the deposition supported his position.

The wrongful death statute provides for liability whenever the death of a person or injuries resulting in death "shall be caused by wrongful act, neglect or default" and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof. M.C.L. Sec. 600.2922(1); M.S.A. Sec. 27A.2922(1). All actions for such death, or injuries resulting in death, must be brought under that statutory provision. In addition, as a part of every cause of action, whether based on negligence, intentional tort, or any other theory, the wrongful acts or omissions complained of must be the proximate cause of the injuries sustained. Defendants contend that there are undisputed[150 MICHAPP 500] facts which establish that no causal connection exists. We disagree.

Defendants rely on Dr. Bailey's deposition testimony. A review of his testimony does not indicate that there is no causal connection. The doctor testified that if Michael had been taken to the hospital earlier, there was a possibility, but not a...