JOSEPH W FLUARY V ST JOHN HOSPITAL & MEDICAL
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STATE OF MICHIGAN
COURT OF APPEALS
JOSEPH FLUARY, as Personal Representative of the
Estate of GERVASE FLUARY,
UNPUBLISHED
May 8, 1998
Plaintiff-Appellant,
v
ST. JOHN HOSPITAL & MEDICAL CENTER,
LARRY LLOYD, M.D., and LUIS CAMERO, M.D.,
No. 195029
Wayne Circuit Court
LC No. 94-409927 NH
Defendants-Appellees.
Before: Saad, P.J., and Wahls and Gage, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right from an order granting a directed
verdict in favor of defendants. We affirm.
A grant or denial of a directed verdict is reviewed de novo on appeal. Meagher v Wayne
State University, 222 Mich App 700, 708; 565 NW2d 401 (1997). On appeal, we consider the
evidence in the light most favorable to the nonmoving party and make all reasonable inferences in favor
of the nonmoving party. Id. A directed verdict is only appropriate when no factual question exists upon
which reasonable minds may differ. Id.
To establish a medical malpractice claim, a plaintiff must establish: (1) the applicable standard of
care, (2) breach of the standard of care, (3) injury, and (4) proximate causation between the alleged
breach and the injury. MCL 600.2912a; MSA 27A.2912(1); Locke v Pachtman, 446 Mich 216,
222; 521 NW2d 786 (1994). To survive a motion for a directed verdict, the plaintiff must make a
prima facie showing regarding each of these elements. Locke, supra, 446 Mich 222.
Here, plaintiff’s malpractice claim is premised upon six specific allegations of negligence; we
address them individually. In so doing, we address plaintiff’s first and third arguments and note that our
disposition of them obviates the need to consider plaintiff’s second argument regarding the qualifications
of plaintiff’s expert.
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I
Plaintiff first contends that the trial court erred in finding that plaintiff failed to establish that Dr.
Camero breached the applicable standard of care by removing the nasogastric (NG) tube on October
8, 1991. However, plaintiff’s expert (Dr. Bussey) specifically testified that removing the NG tube did
not violate the applicable standard of care. Plaintiff presented no other evidence indicating that the
removal of the NG tube on October 8, 1991, violated the standard of care.1 Therefore, the trial court
did not err in directing a verdict in favor of Dr. Camero as to plaintiff’s claim relating to the NG tube.
II
Plaintiff next argues that the trial court erred in granting a directed verdict on his claim that Dr.
Camero’s order that the patient (Fluary) was to receive six small meals per day when he transferred out
of the intensive care unit (“ICU”) constituted medical malpractice. Dr. Bussey testified that such an
order was inappropriate because Fluary was not taking anything by mouth and because Fluary had
aspirated gastrographen just prior to the order being given. However, as noted by the trial court, there
was no evidence that Fluary ever received any of the meals ordered by Dr. Camero. The mere
ordering of the meals was not proximately related to Fluary’s damages. Therefore, because plaintiff
failed to establish a prima facie case of medical malpractice based on the ordering of the meals, the trial
court properly granted a directed verdict on this claim in favor of Dr. Camero.
III
Plaintiff next complains that the trial court erred in granting a directed verdict on his claim that
Dr. Camero breached the applicable standard of care by discontinuing Fluary’s antibiotics on October
8, 1991. Dr. Bussey testified that the antibiotics given to Fluary after the surgery were not specific to
(and therefore would not have prevented) the type of pneumonia Fluary developed and from which he
later died. Because plaintiff failed to establish that the discontinuance of the antibiotics was causally
linked to Fluary’s death, Dr. Camero was entitled to a directed verdict.
IV
Plaintiff next asserts that the trial court erred in granting a directed verdict on his claim that Dr.
Camero negligently failed to prevent Fluary’s aspiration of vomit. Plaintiff theorized that Fluary’s
aspiration of vomit led to development of pneumonia. However, there was no testimony that Fluary
ever aspirated vomit, or that Fluary’s vomiting incident was caused by the malpractice of Dr. Camero.
In fact, Dr. Bussey testified that vomiting and aspiration is a common problem with post-esophageal
gastrectomy patients and does not necessarily indicate that the patient’s physician has done anything
wrong. Furthermore, a bronchoscopy performed on October 9, 1991, revealed no stomach content in
Fluary’s lungs. Therefore, we find no error in the trial court’s grant of a directed verdict on this claim of
negligence.
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V
Plaintiff next argues that the trial court erred in directing a verdict in favor of Dr. Camero and
Dr. Lloyd with respect to plaintiff’s claim that Fluary was prematurely transferred out of ICU to a
regular surgical floor. Dr. Bussey testified that, considering the fact that Fluary vomited at
approximately 5:15 p.m. on October 8, 1991, moving him out of ICU at 6:00 p.m. on October 8,
1991, to a floor with less supervision, breached the applicable standard of care. However, plaintiff
failed to establish that this transfer out of ICU was causally related to Fluary’s development of
pneumonia or his subsequent death from pneumonia. There was no evidence that Fluary aspirated or
vomited after he was transferred to the surgical floor. Therefore, because plaintiff failed to establish a
prima facie case of malpractice based on the transfer of Fluary out of ICU, the trial court’s grant of a
directed verdict on this claim was proper.
VI
Finally, plaintiff contends that the trial court erred in granting a directed verdict in favor of Dr.
Lloyd and St. John Hospital on plaintiff’s claim that they were negligent in allowing Fluary to develop
decubitus ulcers (bedsores). Although Dr. Bussey testified that, generally the development of bedsores
indicates negligence, he also testified that here, he could not form an opinion as to whether Fluary’s
bedsores were the result of defendants’ negligence. Plaintiff thus failed to present expert testimony that
defendants breached the applicable standard of care. However, plaintiff contends that this omission is
not fatal because the jury could determine for itself whether defendants’ conduct met the standard of
care. We disagree. This is not one of those rare cases in which “the lack of professional care is so
manifest as to be within the common knowledge and experience of laymen.” Paul, supra, 455 Mich at
211. This is not a case in which a foreign object was left within a patient, or some similarly patent
negligent action. Indeed the fact that the plaintiff’s physician expert himself was unable to form an
opinion on this issue, supports this conclusion. Accordingly, because plaintiff failed to present expert
testimony establishing a breach of the standard of care, the trial court properly directed a verdict in
favor of Dr. Lloyd and St. John Hospital. 2
Because plaintiff’s failure of proofs required the circuit court to direct a verdict in favor of all
defendants, we affirm in all respects.
Affirmed.
/s/ Henry William Saad
/s/ Myron H. Wahls
/s/ Hilda R. Gage
1
Plaintiff’s third argument on appeal is essentially that it was not necessary for plaintiff to have his
expert testify that defendants breached the relevant standard of care. We note the recent case of Paul
v Lee, 455 Mich 204, 211; 568 NW2d 510 (1997), in which the Court stated:
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In professional malpractice cases, a plaintiff’s assertion that a physician or surgeon
breached the applicable standard of care must generally be supported by expert
testimony. An exception exists where the lack of professional care is so manifest as to
be within the common knowledge and experience of laymen [such as a “foreign object
left in the body of a patient”].
While we do not find the exception to be applicable here, even if it were, plaintiff overlooks the fact that
he nonetheless bears the burden of establishing what the relevant standard of care is, and that this
standard has been breached. Locke, supra, 446 Mich at 222. Plaintiff has wholly failed to present
such evidence here.
2
We also note a tenuous causal connection between negligent conduct which might have caused
bedsores and Fluary’s death.
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