Zdrojewski v. Murphy, Docket No. 224274

• Decision Date: 21 February 2003
• Docket Number: Docket No. 226399.,Docket No. 224274
• Citation: 657 N.W.2d 721,254 Mich. App. 50
• Parties: Irene ZDROJEWSKI, Plaintiff-Appellee/Cross-Appellant, v. John W. MURPHY, M.D., and William Beaumont Hospital, Defendants-Appellants/Cross-Appellees.
• Court: Court of Appeal of Michigan — District of US

657 N.W.2d 721

254 Mich. App. 50

Irene ZDROJEWSKI, Plaintiff-Appellee/Cross-Appellant, v. John W. MURPHY, M.D., and William Beaumont Hospital, Defendants-Appellants/Cross-Appellees.

Docket Nos. 224274, 226399.

Court of Appeals of Michigan.

Submitted September 5, 2002, at Detroit.

Decided November 15, 2002, at 9:00 a.m.

Released for Publication February 21, 2003.

Granzotto & Nicita, P.C. (by Mark Granzotto), Detroit and Weiner and Cox, P.L.C. (by Melissa B. Gross), Southfield, for the plaintiff.

O'Connor, DeGrazia & Tamm, P.C. (by Julie McCann O'Connor), Bloomfield Hills, for the defendants.

Before: FITZGERALD, P.J., and BANDSTRA and GAGE, JJ.

BANDSTRA, J.

Defendants appeal as of right from a judgment for plaintiff in this medical malpractice case. Plaintiff cross appeals the trial court's decision to reduce the damages awarded by the jury pursuant to M.C.L. § 600.1483. We affirm.

I. Basic Facts and Proceedings Below

In April 1995, Dr. Donald Meyer referred plaintiff to defendant John M. Murphy, M.D., for treatment of a cancerous thyroid tumor. Dr. Murphy, who was the chief of surgery at defendant William Beaumont Hospital, performed the surgery at a Beaumont facility on June 12, 1995. Another physician, Dr. Bruce Macintosh, and a physician's assistant, Frank Mercandonte, assisted Dr. Murphy in performing the surgery. According to Dr. Murphy, plaintiff's thyroid was "cementlike" and adherent to other structures because of past radioactive iodine treatment, which made the surgery more difficult. In addition, Dr. Murphy concluded that plaintiff's recurrent laryngeal nerve needed to be removed because it was encased by the tumor.

The day after the surgery, Dr. Murphy noted that plaintiff had an elevated temperature and drainage from the incision, and he ordered an esophagoscopy, which revealed a perforation in plaintiff's esophagus. Plaintiff was taken directly to surgery and a thoracic surgeon, Dr. Robert Welsch, repaired the perforation. Plaintiff recovered from this second surgery and was released from Beaumont on June 20, 1995.

Following the surgery at Beaumont, plaintiff had difficulty breathing, swallowing, and eating. In July 1995, plaintiff was admitted to another hospital because she was suffering from aspiration pneumonia. According to plaintiff, no one informed her or her family that her recurrent laryngeal nerve was removed during the operation. Dr. Murphy completed a handwritten operative note following the surgery, but did not dictate his operative report until June 21, 1995, the day after plaintiff was discharged from Beaumont. The operative report stated that the recurrent laryngeal nerve was removed; however, the handwritten note contained no reference to the nerve removal, and the pathology report showed no indication that the nerve was involved in the tumor. In her complaint filed in March 1997, plaintiff alleged that Dr. Murphy and Beaumont or its "agents, servants and/or employees, either real or ostensible" were negligent.

In May 1998, Beaumont moved for partial summary disposition, arguing that it could not be liable for any alleged negligence of Dr. Murphy because he was not an agent of Beaumont. Beaumont claimed that plaintiff's treating physician referred her to Dr. Murphy, there was a preexisting relationship between Dr. Murphy and plaintiff before the June 1995 surgery, and it did not take any action that would lead plaintiff to reasonably believe that Dr. Murphy was acting on its behalf. The trial court noted that plaintiff asserted that she relied on Beaumont for treatment because of the recommendation of her brother. The court further noted that plaintiff's injuries might have occurred because of the negligence of Dr. McIntosh, who plaintiff did not seek out for treatment. The trial court denied Beaumont's motion, stating that it could not find as a matter of law that there was no ostensible agency relationship between Beaumont and Dr. Murphy or that Dr. Murphy's actions were the sole cause of plaintiff's injuries.

Before trial began in this case, plaintiff submitted proposed jury instructions that included a request for SJI2d 30.05, which is the standard jury instruction regarding res ipsa loquitur, to which defendants objected.¹

At trial, plaintiff presented three theories of negligence: that defendants allowed plaintiff's esophagus to be perforated during surgery, that defendants failed to preserve plaintiff's recurrent laryngeal nerve, and that Dr. Murphy failed to timely dictate his operative report. Plaintiff's and defendants' experts agreed that an esophageal perforation is a rare complication in a thyroidectomy. Plaintiff's expert, Dr. Levey, testified that an esophageal perforation does not happen in the absence of negligence, and defendants did not object to this testimony. Dr. Levey further opined that the perforation was caused either by Dr. Murphy or by one of the other members of the surgical team. Defendants' expert testified that the perforation likely occurred because plaintiff's thyroid and esophagus were scarred and weakened by previous radioactive iodine treatment, and traction during the surgery pulled on this weakened tissue, causing it to tear.

Plaintiff produced evidence demonstrating that Dr. Murphy's claim that the nerve was encased by cancer was noted on the operative report, but was not included on the handwritten operative note, on the pathology report, or on the discharge summary. Regarding the delay in dictation of the operative report, Dr. Levey testified that the delay violated the standard of care because the "Joint Commission of Hospitals Association"² requires operative reports to be completed within twenty-four hours after surgery. Dr. Levey further opined that an operative report dictated nine days after surgery is not likely to be accurate, and suggests "lackadaisicalness" and "sloppiness." When asked whether the delay in compiling the report resulted in any harm to plaintiff, Dr. Levey admitted that plaintiff was not directly harmed by the delay.

At the conclusion of her proofs, plaintiff moved to amend the pleadings to add a claim of res ipsa loquitur. Plaintiff argued that, under MCR 2.118(C)(1), issues tried by express or implied consent of the parties are treated as if they had been raised by the pleadings and amendment should be allowed to conform to the evidence. Plaintiff noted Dr. Levey's testimony that an esophageal perforation does not ordinarily occur in the absence of negligence. Defendants denied that they consented to litigating res ipsa loquitur, claiming that it came up for the first time during Dr. Levey's testimony and that defense counsel objected to it.³ Plaintiff contended that the theory was raised during discovery, and that the broad language in the complaint put defendants on notice of the possibility of this theory. The trial court agreed with plaintiff's reasoning and granted her request to amend.

Defendants moved for a directed verdict on plaintiff's theory of negligence regarding the delayed dictation of the operative report, arguing that the delay did not violate the standard of practice and did not harm plaintiff. Plaintiff argued, and the court agreed, that defendants failed to object to Dr. Levey's testimony or move to have it stricken. The court also noted that defense counsel did not question Dr. Levey regarding his foundation for testifying that a delay in dictating a report was a violation of the standard of care. Defendants argued that, as a matter of law, failure to timely dictate a report is a charting issue and does not constitute malpractice. Defendants further argued that even if it were a violation of the standard of practice, plaintiff failed to show how she was harmed by the delay. Plaintiff countered that the delay indirectly harmed her "by the fact that it's information that's being utilized really to her detriment in terms of these proceedings," that the delay in dictation "implies as to how the conduct was during the surgery," and that the information in the report was not accurate regarding what transpired on the day of surgery.

The court denied defendants' motion, stating:

[I]t may not be a fair focus on the standard of care, which encompasses everything that went into this, not just an operative report, but everything. Frankly, the—the Court would maybe entertain a motion to strike that testimony if ... you show me a case that says that what a doctor does or does not do within the operative report ... is not included in the standard of care. But so far the testimony is in, you were allowed cross-examination on it, there's been no motion to object—or to strike the testimony.... But if you provide me with a case that says that that is not a part of the standard of care, that is ... the completing of an operative report, I'll be happy to entertain out of—out of fairness,... anything further [in that regard]. But at this juncture, I'm denying your request for directed verdict on that basis.

After both parties rested and gave their closing arguments, the court gave jury instructions that included the following:

For the purpose of this case, ladies and gentlemen, Dr. Murphy, Dr. McIntosh, Frank Mercandonte, are to all be considered as agents of William Beaumont Hospital. As such, if you find that Dr. Murphy or Dr. McIntosh or Frank Mercandonte were professionally negligent, then William Beaumont Hospital shall be held liable for their negligence.

There is no indication in the record that defendants objected to this or any other instruction. It appears that the parties also agreed to a very basic and general jury verdict form that required the jury to determine (1) whether the defendants were negligent, (2) whether plaintiff sustained damages, (3) whether plaintiff's damages were proximately caused by defendants' negligence, and (4) the amount of plaintiff's damages.

Following deliberations, the jury returned a verdict for plaintiff, finding that defendants were negligent...