Woodard v. Custer

• Decision Date: 12 July 2005
• Docket Number: Docket No. 124994,Docket No. 124995.
• Citation: 702 N.W.2d 522,473 Mich. 1
• Parties: Johanna WOODARD, Individually and as Next Friend of Austin D. Woodard, a Minor, and Steven Woodard, Plaintiffs-Appellees, and Cross-Appellants, v. Joseph R. CUSTER, M.D., Defendant-Appellant, and Cross-Appellee, and Michael K. Lipscomb, M.D., Michelle M. Nypaver, M.D., and Mona M. Riskalla, M.D., Defendants. Johanna Woodard, Individually and as Next Friend of Austin D. Woodard, a Minor, and Steven Woodard, Plaintiffs-Appellees and Cross-Appellants, v. University of Michigan Medical Center, Defendant-Appellant and Cross-Appellee.
• Court: Michigan Supreme Court

702 N.W.2d 522

473 Mich. 1

Johanna WOODARD, Individually and as Next Friend of Austin D. Woodard, a Minor, and Steven Woodard, Plaintiffs-Appellees, and Cross-Appellants, v. Joseph R. CUSTER, M.D., Defendant-Appellant, and Cross-Appellee, and Michael K. Lipscomb, M.D., Michelle M. Nypaver, M.D., and Mona M. Riskalla, M.D., Defendants.

Johanna Woodard, Individually and as Next Friend of Austin D. Woodard, a Minor, and Steven Woodard, Plaintiffs-Appellees and Cross-Appellants, v. University of Michigan Medical Center, Defendant-Appellant and Cross-Appellee.

Docket Nos. 124994, 124995.

Supreme Court of Michigan.

July 12, 2005.

Nemier, Tolari, Landry, Mazzeo & Johnson, P.C. (by Craig L. Nemier, Michelle E. Mathieu, and Nancy Dembinski), Farmington Hills, MI, for the plaintiffs.

Hebert, Eller, Chandler & Reynolds, P.L.L.C. (by Kevin P. Hanbury), Bingham Farms, MI, for the defendants.

MARKMAN, J.

The question presented to this Court is whether expert testimony is necessary in the circumstances of this case. We conclude that it is.

I. FACTS AND PROCEDURAL HISTORY

Plaintiffs' fifteen-day-old son was admitted to the Pediatric Intensive Care Unit (PICU) at the University of Michigan Hospital, where he was treated for a respiratory problem. During his stay in the PICU, he was under the care of Dr. Joseph R. Custer, the Director of Pediatric Critical Care Medicine. When the infant was moved to the general hospital ward, physicians in that ward discovered that both of the infant's legs were fractured. Plaintiffs sued Dr. Custer and the hospital, alleging that the fractures were the result of negligent medical procedures, namely, the improper placement of an arterial line in the femoral vein of the infant's right leg and the improper placement of a venous catheter in the infant's left leg.

Defendant physician is board-certified in pediatrics and has certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine. Plaintiffs' proposed expert witness, who signed plaintiffs' affidavit of merit, is board-certified in pediatrics, but does not have any certificates of special qualifications.

Before discovery, the trial court denied defendants' motion for summary disposition, concluding that plaintiffs' attorney had a "reasonable belief" under MCL 600.2912d(1) that plaintiffs' proposed expert witness was qualified under MCL 600.2169 to testify against the defendant physician, and, thus, that plaintiffs' affidavit of merit was sufficient. After discovery, the trial court granted defendants' motion to strike plaintiffs' expert witness on the basis that he was not actually qualified under MCL 600.2169 to testify against the defendant physician. The trial court dismissed plaintiffs' claim with prejudice, concluding that plaintiffs could not reach a jury without expert testimony.

The Court of Appeals affirmed the trial court's ruling that plaintiffs' proposed expert witness was not qualified under MCL 600.2169 to testify against the defendant physician (Judge Borrello dissented on this issue), but reversed the trial court's dismissal on the basis that expert testimony was unnecessary under the doctrine of res ipsa loquitur, i.e., an inference of negligence may be drawn from the fact that the infant was admitted to the PICU with healthy legs and discharged from the PICU with fractured legs (Judge Talbot dissented on this issue). Unpublished opinion per curiam, 2003 WL 22399520, issued October 21, 2003 (Docket Nos. 239868-239869). The case was remanded for trial.

Defendants sought leave to appeal the Court of Appeals decision that res ipsa loquitur applies and that expert testimony was not necessary. Plaintiffs sought leave to cross-appeal the Court of Appeals decision that their proposed expert witness was not qualified under MCL 600.2169 to testify against the defendant physician. We heard oral argument on whether to grant the applications or take other peremptory action permitted by MCR 7.302(G)(1). 471 Mich. 890, 687 N.W.2d 298 (2004). We have granted plaintiffs' application for leave to appeal as cross-appellants.¹ In this opinion, we address only defendants' application for leave to appeal.

II. STANDARD OF REVIEW

This Court reviews de novo decisions on summary disposition motions. Grossman v. Brown, 470 Mich. 593, 598, 685 N.W.2d 198 (2004).

III. ANALYSIS

Plaintiffs argue that expert testimony is unnecessary in this case because of the doctrine of res ipsa loquitur. In a medical malpractice case, the plaintiff must establish:

(1) the applicable standard of care, (2) breach of that standard of care by the defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. [Locke v. Pachtman, 446 Mich. 216, 222, 521 N.W.2d 786 (1994).]

See MCL 600.2912a. Generally, expert testimony is required in medical malpractice cases. Locke, supra at 230, 521 N.W.2d 786.

This Court has long recognized the importance of expert testimony in establishing a medical malpractice claim, and the need to educate the jury and the court regarding matters not within their common purview.... While we have recognized exceptions to this requirement, the benefit of expert testimony, particularly in demonstrating the applicable standard of care, cannot be overstated. [Id. at 223-224, 521 N.W.2d 786.]

However, if a medical malpractice case satisfies the requirements of the doctrine of res ipsa loquitur, then such case may proceed to the jury without expert testimony. Id. at 230, 521 N.W.2d 786. Res ipsa loquitur is a Latin term meaning, "[t]he thing speaks for itself." Black's Law Dictionary (6th ed.).²

[R]es ipsa loquitur ... entitles a plaintiff to a permissible inference of negligence from circumstantial evidence.

The major purpose of the doctrine of res ipsa loquitur is to create at least an inference of negligence when the plaintiff is unable to prove the actual occurrence of a negligent act....

In a proper res ipsa loquitur medical case, a jury is permitted to infer negligence from a result which they conclude would not have been reached unless someone was negligent. [Jones v. Porretta, 428 Mich. 132, 150, 155-156, 405 N.W.2d 863 (1987).]

In order to avail themselves of the doctrine of res ipsa loquitur, plaintiffs must meet the following conditions:

"(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence;

(2) it must be caused by an agency or instrumentality within the exclusive control of the defendant;

(3) it must not have been due to any voluntary action or contribution on the part of the plaintiff"; and

(4) "[e]vidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff." [Id. at 150-151, 405 N.W.2d 863 (citations omitted).]

With regard to the first condition, this Court has held that "the fact that the injury complained of does not ordinarily occur in the absence of negligence must either be supported by expert testimony or must be within the common understanding of the jury." Locke, supra at 231, 521 N.W.2d 786. In this case, whether a leg may be fractured in the absence of negligence when placing an arterial line or a venous catheter in a newborn's leg is not within the common understanding of the jury, and, thus, expert testimony is required. That is, plaintiffs needed to produce expert testimony to support their theory that the infant's injuries were not the unfortunate complication of a reasonably performed medical procedure. As this Court explained in Jones, supra at 154, 405 N.W.2d 863:

[I]n a normal professional negligence case, a bad result, of itself, is not evidence of negligence sufficient to raise an issue for the jury.... Something more is required, be it the common knowledge that the injury does not ordinarily occur without negligence or expert testimony to that effect.

In a case where there is no expert evidence that "but for" negligence this result does not ordinarily occur, and in which the judge finds that such a determination could not be made by the jury as a matter of common understanding, a prima facie case has not been made, and a directed verdict is appropriate.

Whether, "but for" negligence, the newborn's legs would not have been fractured is not a determination that can be made by the jury as a matter of common understanding. As the trial court explained:

Whether the fractures could have occurred in the absence of someone's negligence is an allegation that must be supported by expert testimony; the procedures [the infant] underwent are not within the common knowledge of a reasonably prudent jury. Furthermore, whether fractures of the kinds suffered by [the infant] are possible complications arising from the types of procedures performed during [his] stay at the Pediatric ICU is knowledge that is exclusively within the expertise of the medical profession.

And, as Judge Talbot in dissent in the Court of Appeals explained, "[a]ssuming that the fractures may have been caused by the placement of the lines in the infant's legs, the risks associated with the placement of arterial lines or venous catheters in a newborn infant, and whether fractures ordinarily do not occur in the absence of negligence, are not within common knowledge of a reasonably prudent fact finder." Op. at ___. Because we do not know whether the injury complained of does not ordinarily occur in the absence of negligence, we cannot properly apply the doctrine of res ipsa loquitur.

Plaintiffs argue that, even if res ipsa loquitur does not apply, expert testimony is not required because the alleged negligence was within the common understanding of the jury. For the same reason that we conclude that res ipsa loquitur does not apply here-whether a leg may be fractured in the absence of negligence when placing an arterial line or a venous catheter in a newborn's leg is not within the common understanding of the jury-we conclude that this latter exception to the...