Ykimoff v. Foote Mem. Hosp., Docket No. 279472.

Citation776 N.W.2d 114,285 Mich. App. 80
Decision Date16 July 2009
Docket NumberDocket No. 279472.
CourtCourt of Appeal of Michigan (US)

Fieger, Fieger, Kenney, Johnson & Giroux, P.C. (by Geoffrey N. Fieger, Robert M. Giroux, Jr., and Heather A. Jefferson), Southfield, for James Ykimoff.

Foley, Baron & Metzger, PLLC (by Judith A. Sherman and Clyde M. Metzger), Livonia, for W.A. Foote Memorial Hospital.



W.A. Foote Memorial Hospital ("defendant" or "the hospital") appeals as of right a judgment in favor of plaintiff, James Ykimoff, following the trial court's denial of its motion for a new trial or for judgment notwithstanding the verdict (JNOV) in this medical malpractice action. Plaintiff cross-appeals the trial court's order granting partial summary disposition, which resulted in the dismissal of plaintiff's malpractice claims against his surgeon, Dr. David Eggert. We affirm in part, vacate the judgment in part, and remand.


On November 7, 2001, because of circulation problems in his left hip resulting in claudication and pain, plaintiff underwent an aortofemoral bypass graft. Dr. Eggert performed the surgery at the hospital. Reportedly, the duration of the surgery was prolonged because of the severity of the blockages in plaintiff's aorta below the renal arteries, which were described as being "rock-hard." During the procedure, Dr. Eggert was required to completely clamp off blood flow to plaintiffs legs. Surgery was initiated at 2:10 p.m., and plaintiff was not received in the post-anesthesia care unit (PACU) for monitoring until 6:26 p.m. Initially, when Nurse Melinda Piatt received plaintiff in the PACU, Doppler examination could detect posttibial pulses, and plaintiff demonstrated an ability to move his lower extremities.1 However, shortly thereafter, plaintiff began to report consistent and severe pain, the loss of sensation in his legs, and pressure in his pelvis and lower extremities. Plaintiffs blood pressure was low when he was transferred to the PACU and dropped while in that unit. Plaintiff's legs were also observed to be pallid and cool while in the unit. At approximately 8:40 p.m., when the skin of plaintiffs right leg began to demonstrate mottling, the nursing staff contacted Dr. Eggert. Dr. Eggert returned to the hospital and was examining plaintiff by 9:12 p.m., at which time he determined that plaintiff needed to return to the operating room. At 9:45 p.m., Dr. Eggert commenced exploratory surgery to evaluate blood flow and found a clot in the graft site. A thrombectomy of the right limb of the aortofemoral graft was performed, removing a blockage to the blood supply to plaintiff's lower extremities.

Following the second surgery, plaintiff experienced bilateral lower extremity weakness and numbness. He remained a patient at the hospital until November 13, 2001, when he was transferred to the University of Michigan Hospital (U of M) for further care and treatment. While at U of M, plaintiff was diagnosed with bilateral lumbar plexopathy due to ischemia or lack of blood flow. Although plaintiffs condition improved over time and with rehabilitation, he continues to report residual effects involving "tremendous deficits relative to the use of his legs."

On March 12, 2004, plaintiff filed this action, alleging medical malpractice against the hospital and Drs. Eggert and David Prough. While Dr. Prough was dismissed because of his lack of involvement in plaintiffs care, plaintiff alleged negligent treatment by both Dr. Eggert and the nursing staff of the hospital. With his complaint, plaintiff filed an affidavit of merit by Dr. Daniel Preston Flanigan to support his assertions of negligence and breach of the applicable standard of care. Specifically, Dr. Flanigan opined that defendants, while caring for plaintiff after the initial surgery, permitted "the vascular occlusion to exist for an extended period of time such that the lack of blood flow caused ischemia and the prolonged ischemia caused cell death and permanent damage to the muscles and nerves." The hospital and Dr. Eggert successfully obtained partial summary disposition regarding the claims against Eggert on the basis of deposition testimony by Dr. Flanigan that Dr. Eggert had not breached any applicable standards of care during his treatment of plaintiff.

A jury trial proceeded on the remainder of plaintiffs claims against the hospital, which alleged negligence of the PACU nurses, Piatt and Desmarais, in monitoring plaintiffs condition and failing to report his status and symptoms to Dr. Eggert in a timely manner. The jury found in favor of plaintiff, and an order for judgment on the jury's verdict in the amount of $1,402,601.44 was entered on March 26, 2007, following application of the medical malpractice noneconomic damages cap. The trial court subsequently denied defendant's motion for JNOV or a new trial, and this appeal ensued.


The claims of malpractice raised by plaintiff are premised on the care received in the hospital's PACU by the assigned nursing staff, Melinda Piatt and Marlene Desmarais, and their failure to contact Dr. Eggert regarding signs of a vascular emergency, which delayed surgical intervention for a blood clot. Plaintiff's expert witness contended that the blood clot began to form immediately following the first surgery and that the symptoms displayed by plaintiff in the PACU should have alerted the nursing staff to the condition and the need to contact the treating physician. Plaintiff's expert contended that earlier contact and resultant intervention would have either avoided any residual impairment now experienced by plaintiff or substantially reduced its severity.

In contrast, relying on testimony by Dr. Eggert, defendant asserts that the blood clot formed only minutes before plaintiff's skin demonstrated mottling and that any residual impairment is neurological in nature and derived from the necessity of prolonged clamping off of blood flow during the surgery because of the severity of the blockages. Defendant further contends that liability against the hospital is precluded by the inability to establish proximate causation, given Dr. Eggert's assertion that the symptoms demonstrated by plaintiff in the PACU did not indicate a vascular emergency and that even if he had been contacted and informed of these symptoms earlier by the nursing staff, he would not have taken any action or intervened surgically.


This Court reviews de novo both a lower court's decision on a motion for summary disposition, Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999), and the grant or denial of a motion for JNOV, in the latter situation viewing "the evidence and all legitimate inferences in the light most favorable to the nonmoving party," Craig v. Oakwood Hosp., 471 Mich. 67, 77, 684 N.W.2d 296 (2004) (quotation marks and citations omitted). JNOV is properly granted only if the evidence fails to establish a claim as a matter of law. Id. Because issues of statutory interpretation involve questions of law, they are also subject to de novo review. Eggleston v. Bio-Med. Applications of Detroit, Inc., 468 Mich. 29, 32, 658 N.W.2d 139 (2003).

A trial court's denial of a request for a curative instruction is reviewed for an abuse of discretion. Schutte v. Celotex Corp., 196 Mich.App. 135, 142, 492 N.W.2d 773 (1992). Similarly, preserved evidentiary issues are reviewed for an abuse of discretion, Woodard v. Custer, 476 Mich. 545, 557, 719 N.W.2d 842 (2006), while unpreserved evidentiary issues are reviewed for plain error affecting the party's substantial rights, Hilgendorf v. St. John Hosp. & Med. Ctr. Corp., 245 Mich.App. 670, 700, 630 N.W.2d 356 (2001); MRE 103(a)(1).


The primary contention regarding whether plaintiff can establish his claim of malpractice centers on the issue of proximate cause. Our Legislature has defined the applicable causation standard for medical malpractice cases in MCL 600.2912a(2), which provides in relevant part: "In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants." The general principles pertaining to causation in an action for medical malpractice were recently reviewed by this Court in Robins v. Garg (On Remand), 276 Mich.App. 351, 362, 741 N.W.2d 49 (2007):

"Proximate cause" is a term of art that encompasses both cause in fact and legal cause. Craig v. Oakwood Hosp., 471 Mich. 67, 86, 684 N.W.2d 296 (2004). "Generally, an act or omission is a cause in fact of an injury only if the injury could not have occurred without (or `but for') that act or omission." Id. at 87 . Cause in fact may be established by circumstantial evidence, but the circumstantial evidence must not be speculative and must support a reasonable inference of causation. Wiley v. Henry Ford Cottage Hosp., 257 Mich. App. 488, 496, 668 N.W.2d 402 (2003). "`All that is necessary is that the proof amount to a reasonable likelihood of probability rather than a possibility. The evidence need not negate all other possible causes, but such evidence must exclude other reasonable hypotheses with a fair amount of certainty.'" Skinner v. Square D Co., 445 Mich. 153, 166, 516 N.W.2d 475 (1994), quoting 57A Am. Jur. 2d, Negligence, § 461, p. 442. Summary disposition is not appropriate when the plaintiff offers evidence that shows "that it is more likely than not that, but for defendant's conduct, a different result would have been obtained." Dykes v. William Beaumont Hosp., 246 Mich.App. 471, 479 n. 7, 633 N.W.2d 440 (2001).

If circumstantial evidence is relied on to establish proximate cause, the...

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