Wiley v. Henry Ford Cottage Hosp.

• Decision Date: 10 July 2003
• Docket Number: Docket No. 233220.
• Citation: 257 Mich. App. 488,668 N.W.2d 402
• Parties: Olga WILEY and Antley Wiley, Plaintiffs-Appellees, v. HENRY FORD COTTAGE HOSPITAL, an assumed name for Henry Ford Health Systems, Defendant Appellant, and John Doe, Defendant.
• Court: Court of Appeal of Michigan — District of US

668 N.W.2d 402

257 Mich. App. 488

Olga WILEY and Antley Wiley, Plaintiffs-Appellees, v. HENRY FORD COTTAGE HOSPITAL, an assumed name for Henry Ford Health Systems, Defendant Appellant, and John Doe, Defendant.

Docket No. 233220.

Court of Appeals of Michigan.

Submitted May 20, 2003, at Detroit.

Decided July 10, 2003, at 9:05 a.m.

Released for Publication September 9, 2003.

Barbara H. Goldman and Richard E. Shaw, Southfield, for the plaintiffs.

Willmarth, Tanoury, Ramar, Corbet, Garves & Shaw (by Linda M. Garbarino and Anthony J. Paradiso), Detroit, for the defendant.

Before JANSEN, P.J. and KIRSTEN FRANK KELLY and FORT HOOD, JJ.

JANSEN, P.J.

In this medical malpractice case, defendant Henry Ford Cottage Hospital appeals as of right an order of judgment for plaintiffs Olga and Antley Wiley. We affirm in part and reverse in part.

I. Basic Facts

In March 1997, plaintiff Olga Wiley,¹ who suffered from diabetes, underwent amputation of her left leg at Henry Ford Hospital. The amputation was required because of nonhealing ulcers on the plaintiff's leg. After the amputation, plaintiff remained at Henry Ford Hospital for approximately ten days. Thereafter, she was transferred to Henry Ford Cottage Hospital for therapy. While nurses attempted to move plaintiff from the toilet to her wheelchair, plaintiff sustained a laceration to the front of her right lower leg. This laceration was slow to heal, but plaintiff was discharged. Plaintiff was later readmitted for treatment of ulcerations on her right leg. Ultimately, the right leg was amputated. Plaintiff alleged that defendant's negligence in causing the laceration resulted in the loss of her right leg and rendered her a double amputee.

II. Directed Verdict/Judgment Notwithstanding the Verdict

Defendant first argues that the trial court erred in denying its motions for directed verdict and for judgment notwithstanding the verdict (JNOV). We disagree.

A. Standard of Review and Generally Applicable Law

This Court reviews de novo a trial court's grant or denial of a directed verdict. Derbabian v. S & C Snowplowing, Inc., 249 Mich.App. 695, 701, 644 N.W.2d 779 (2002). In doing so, we view the evidence in the light most favorable to the nonmoving party. Id. at 701-702, 644 N.W.2d 779. Further, this Court recognizes the unique opportunity of the jury and the trial judge to observe witnesses and the fact-finder's responsibility to determine the credibility and weight of the testimony. Zeeland Farm Services, Inc. v. JBL Enterprises, Inc., 219 Mich.App. 190, 195, 555 N.W.2d 733 (1996). If reasonable jurors could honestly have reached different conclusions, this Court may not substitute its judgment for that of the jury. Hunt v. Freeman, 217 Mich.App. 92, 99, 550 N.W.2d 817 (1996).

This Court reviews de novo the trial court's decision on a motion for JNOV. Attard v. Citizens Ins. Co. of America, 237 Mich.App. 311, 321, 602 N.W.2d 633 (1999). We review the evidence and all legitimate inferences in the light most favorable to the nonmoving party. Attard, supra. The motion should be granted only if the evidence fails to establish a claim as a matter of law. Orzel v. Scott Drug Co., 449 Mich. 550, 557-558, 537 N.W.2d 208 (1995).

In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal. Wischmeyer v. Schanz, 449 Mich. 469, 484, 536 N.W.2d 760 (1995).

B. Standard of Care

Defendant argues that the trial court erred in denying its motions for directed verdict and JNOV because plaintiff failed to establish the standard of care with expert testimony. We disagree.

The common-law standard of care applies to malpractice actions against nurses. Cox v. Flint Bd. of Hosp. Managers, 467 Mich. 1, 20, 651 N.W.2d 356 (2002). Therefore, the applicable standard of care is the skill and care ordinarily possessed and exercised by practitioners of the profession in the same or similar localities. Id. at 22, 651 N.W.2d 356. Expert testimony is necessary to establish the standard of care because the ordinary layperson is not equipped by common knowledge and experience to judge the skill and competence of the service and determine whether it meets the standard of practice in the community. Locke v. Pachtman, 446 Mich. 216, 223, 521 N.W.2d 786 (1994).

Defendant argues that plaintiff's only nursing expert, Donna Rice, R.N., did not establish the standard of care because she testified only about what she would have done. Defendant correctly points out that the standard of care is not based on how a particular health care professional would act. Carbonell v. Bluhm, 114 Mich.App. 216, 224, 318 N.W.2d 659 (1982), citing Rytkonen v. Lojacono, 269 Mich. 270, 257 N.W. 703 (1934). The use of the pronoun "I" in discussing the standard of care is improper. Id. After a thorough review of Rice's testimony, it is clear that Rice testified that the standard of care requires the nurse to assess himself, the patient, the equipment, and the surroundings. Rice did not testify that this is only something she does, but rather, that this should be done in general. When Rice used the word "I" it was, by way of example, an explanation of how in assessing herself she would not lift a patient above a certain weight. Therefore, this testimony was not improper and it served to establish part of the standard of care, namely, that a nurse must assess the totality of the circumstances in deciding how to transfer a patient. Additionally, Thomas Biecker, R.N., although not called as plaintiff's expert witness, provided expert testimony as a registered nurse employed by defendant. A plaintiff may establish the standard of care through defense witnesses. Porter v. Henry Ford Hosp., 181 Mich.App. 706, 710, 450 N.W.2d 37 (1989), citing M.C.L. § 600.2161.

On the basis of Rice and Biecker's testimony, plaintiff established that the standard of care in transferring a patient, such as plaintiff, includes several factors: that the nurse assess his ability and the ability of the patient, as well as the surrounding circumstances, that two nurses perform the transfer, use of a gait belt, preventive care of lower limbs, patient education, and waiting until the patient is ready to move. In its more specific aspects, the standard of care requires that "the patient be at a direct angle to the nurse, that is, in front of the patient so that you have the knees positioned correctly, putting the patient straight up, making sure the position is correct and making the pivot, watching the feet and bringing them down and into the wheelchair."

C. Breach of the Standard of Care

Defendant also argues that the trial court erred in denying its motions for directed verdict and JNOV because that plaintiff failed to present sufficient expert testimony to prove a breach of the standard of care. We disagree. Expert testimony is required in medical malpractice cases to establish the applicable standard of care and to demonstrate that the defendant somehow breached that standard. Wischmeyer, supra at 484, 536 N.W.2d 760; Birmingham v. Vance, 204 Mich.App. 418, 421, 516 N.W.2d 95 (1994); Moy v. Detroit Receiving Hosp., 169 Mich.App. 600, 605, 426 N.W.2d 722 (1988).

In this case, there was sufficient expert testimony to establish that it was more likely than not that defendant breached the standard of care. Although Rice testified that an injury could occur in the absence of negligence, she did not agree that this was the case here. Rice testified: "I believe the nurses did not follow the proper procedure to transfer the patient." Rice further testified:

Q. And your opinion is the nursing care was proper or improper?

A. Improper.

* * *

Q. Was there a violation of the standard of practice of nursing care as it relates to the transfer of Olga Wiley?

A. I believe there was.

* * *

Q. Do you believe that the laceration of 3-29 was caused by the negligence of the nurses in this case?

A. Yes.

This testimony, along with Rice and Biecker's testimony about the standard of care, was sufficient to show that defendant did not comply with the standard of care. Although Rice's other testimony may appear to contradict these statements, her credibility remains a question for the trier of fact. Zeeland Farm Services, supra at 195, 555 N.W.2d 733.

Additionally, the evidence presented at trial provides factual support for the experts' opinions. "This Court has held that an expert's opinion is objectionable where it is based on assumptions that are not in accord with the established facts." Badalamenti v. William Beaumont Hosp-Troy, 237 Mich.App. 278, 286, 602 N.W.2d 854 (1999). MRE 703 also provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. The court may require that underlying facts or data essential to an opinion or inference be in evidence.

In this case, Shelly Ostrowsky testified that she did not assist Karen Nunn in moving plaintiff. Thus, the evidence showed that only one nurse transferred plaintiff. When asked if there was protective padding on plaintiff's wheelchair, Ostrowsky testified that she could not recall. Ostrowsky also testified that a gait belt was not used in the transfer. Therefore, the underlying facts essential to the experts' opinions were in evidence.

D. Causation

Defendant also argues that the trial court erred in denying its motions for directed verdict and JNOV because plaintiff failed to prove that the laceration ultimately caused the amputation of plaintiff's right leg. We disagree.

Proof of causation requires both cause in fact and proximate cause. Haliw v. Sterling Hts., 464 Mich. 297, 310, 627 N.W.2d 581 (2001). Cause in fact requires that the harmful result would not have...