STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF DANIEL D. JILEK, by JOY A.
JILEK, personal representative,
July 29, 2010
CARLIN C. STOCKSON, M.D., and EPMG OF
Washtenaw Circuit Court
LC No. 05-000268-NH
MAPLE URGENT CARE, d/b/a MAPLE HEALTH
BUILDING, TRINITY HEALTH-MICHIGAN,
CATHERINE MCAULEY HEALTH CENTER,
IRWIN M. LUTWIN, CARPENTER HEALTH
CARE, d/b/a CARPENTER HEALTH CENTER,
and ROBERT E. ANDERSON,
Before: BANDSTRA, P.J., and BORRELLO and SHAPIRO, JJ.
BANDSTRA, P.J. (dissenting)
I adamantly disagree with my colleagues’ conclusion that a jury verdict in favor of
defendants, rendered after a lengthy trial during which the jurors were presented with
comprehensive testimony regarding the applicable standard of care and whether defendants
violated it, should be thrown out. I disagree with the majority’s conclusion that the trial court
erred in its determination of the issues about which plaintiff complains on appeal and, further, to
the extent there were any errors, I do not think that they warrant reversal.
The majority initially agrees with plaintiff’s argument that the trial court erred in
concluding that the applicable standard of care here was family medicine, under MCL 600.2169.
That statute specifically states that “if the party against whom or on whose behalf testimony is
offered is a specialist who is board certified, the expert witness must be a specialist who is board
certified in that specialty.” Dr. Stockson is a specialist board certified in family medicine, not
emergency medicine. Thus, defendants were properly allowed to present expert testimony in
defense of the claims against Dr. Stockson by board certified family medicine specialists.
Similarly, the trial court did not err in instructing the jury that the applicable standard of care was
that of “a physician specializing in family practice . . .”1
Further, the trial court went on to specify for the jury that the applicable standard of care
was that of a family practice physician who was “working in an urgent care center.” The jury
had heard testimony from experts presented by both sides regarding the differences between an
urgent care facility and an emergency room, as well as the standards Dr. Stockson should have
complied with as a family medicine physician working in an urgent care setting. To the extent
that Dr. Stockson was thus held to a higher standard of care because of the place in which she
practiced her family medicine and to the extent that plaintiff was allowed to present testimony
from emergency room experts against Stockson, plaintiff’s case was strengthened, not weakened.
In any event, the bottom line here is that the jurors were presented with comprehensive
arguments and jury instructions that fairly presented the standard of care question for their
resolution. They properly determined, after brief deliberations, that Stockson had not been
negligent in her care of her patient.
The trial court also concluded that all of plaintiff’s nine proposed documentary exhibits
relating to guidelines and policies for care of persons allegedly like the deceased were to be
excluded from consideration by the jury. The majority finds fault with the trial court as to only
two of those documents, and it does so only after concluding that it is either “not bound to
follow” the only Michigan precedent directly on point, Gallagher v St. John Hosp & Med Ctr,
275 Mich App 290; 739 NW2d 392 (2007), or that the holding of Gallagher should be ignored
while dictum within that precedent should be followed. I disagree with the majority that two
precedents that are binding upon us and which applied or reiterated the Gallagher holding rather
than its dictum can be distinguished away. See Buczkowkski v McKay, 491 Mich 96; 490 NW2d
330 (1992) and Zedrojewski v Murphy, 254 Mich App 50; 657 NW2d 721 (2002). But, apart
from all of that, even if I were to conclude that the two documents plaintiff complains about were
improperly excluded, I would not conclude that it would have made any difference in the
outcome of the trial.
I disagree with the majority in its conclusion that “Dr. Stockson’s . . . board certification as a
family practitioner is not relevant to standard of care” because it is directly contrary to the clear
statutory directive that board certification is of paramount concern. Reeves v Carson City Hosp
(On Remand), 274 Mich App 622, 630; 736 NW2d 284 (2007), upon which the majority relies,
did not consider the statute in this regard. Instead Reeves merely assumed, without any
discussion whatsoever, that a board certified family medicine specialist working in the
emergency room of a hospital could be held to an emergency medicine standard of care.
Moreover, common sense suggests there are large differences between an urgent care (or, as
some call it, “doc in a box”) facility such as that at issue here and a hospital emergency room
such as in Reeves. See, e.g., Lutz v Mercy Mt. Clemens Corp, unpublished opinion per curiam of
the Court of Appeals, issued December 20, 2000 (Docket No. 261465) slip opinion at 3 (“clearly
it is unreasonable to equate urgent care with emergency medicine.”).
And that brings me back to my chief concern. Perhaps not surprisingly, the majority
makes no mention of the standard of review we must apply on this appeal from a jury verdict:
An error in the admission or the exclusion of evidence, an error in a ruling or
order, or an error or defect in anything done or omitted by the court or by the
parties is not ground for granting a new trial, [or] for setting aside a verdict . . .
unless refusal to take this action appears to the court inconsistent with substantial
justice. [MCR 2.613(A).]
The majority makes no attempt to explain how the errors it discerns from this record resulted in a
jury verdict that was “inconsistent with substantial justice.”
A fair reading of the lengthy record in this case demonstrates the exact opposite. The
decedent presented to Dr. Stockson complaining only of the kind of respiratory problems that are
commonplace during Michigan winters, for which he had received partially successful treatment
from other caregivers over the preceding months. His chief complaint was not chest pain. In
response, Dr. Stockson took some action, but she failed to take other actions that plaintiff’s
experts later contended should have been taken. The jurors heard lengthy testimony and
argument from both sides about whether Dr. Stockson acted appropriately, as a family medicine
specialist practicing in an urgent care setting. The jury determined, in response to the first
question presented on the verdict form, that Dr. Stockson was simply not negligent, and it
rendered a verdict in favor of defendants accordingly.
The rule governing our review recognizes that no trial is perfect and allows us to disturb
such a jury verdict only if it is “inconsistent with substantial justice.” This is far from that kind
of a case, and we should affirm.
/s/ Richard A. Bandstra