RACHEL SHAFFER V ST JOSEPH'S MERCY HOSPITALS OF MACOMB
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STATE OF MICHIGAN
COURT OF APPEALS
RACHEL SHAFFER,
UNPUBLISHED
December 27, 2007
Plaintiff-Appellee,
v
ST. JOSEPH’S MERCY HOSPITALS OF
MACOMB, ST. JOSEPH’S MERCY OF
MACOMB a/k/a MERCY MOUNT CLEMENS
CORPORATION, and ST. JOSEPH MERCY
HEALTH SYSTEM a/k/a TRINITY HEALTHMICHIGAN,
No. 275299
Macomb Circuit Court
LC No. 04-002993-NH
Defendants-Appellants,
and
PAUL MOCZARSKI, D.O. and MACOMB
EMERGENCY CARE PHYSICIANS, P.C.,
Defendants.
Before: Donofrio, P.J., and Sawyer and Cavanagh, JJ.
PER CURIAM.
Defendants appeal by leave granted the trial court’s denial of their motion for summary
disposition premised on the ground that plaintiff failed to present sufficient expert evidence
regarding proximate cause in this medical malpractice action.1 We affirm.
On July 23, 2002, plaintiff went to defendants’ emergency room complaining of fever,
neck stiffness, chills, and weakness in her arms and legs. She was sent home after a few hours,
1
Defendants’ interlocutory application for leave to appeal was initially denied. Shaffer v St
Joseph Mercy Hosp of Macomb, unpublished order of the Court of Appeals, entered October 12,
2006 (Docket No 270884). Defendants then filed an application for leave to appeal with our
Supreme Court. In lieu of granting leave to appeal, the matter was remanded for consideration as
on leave granted. Shaffer v St Joseph Mercy Hosp of Macomb, 477 Mich 976; 725 NW2d 51
(2006).
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and her condition worsened over the course of the next four days. She returned to defendants’
emergency room on July 27, 2002. Defendants transferred her to the University of Michigan
Medical Center. Plaintiff was eventually diagnosed with heart failure and mitral valve
endocarditis. She subsequently underwent mitral valve replacement surgery.
In this medical malpractice action, plaintiff claims that defendants are vicariously liable
for the conduct of their physicians whose failure to properly diagnose and treat her conditions on
July 23, 2002, caused her to require mitral valve replacement surgery.2 Defendants sought
summary dismissal of plaintiff’s case under MCR 2.116(C)(10), on the ground that she could not
establish the requisite proximate cause. The trial court disagreed and, after de novo review of
this decision, considering the evidence in the light most favorable to plaintiff, we agree that
defendants are not entitled to judgment as a matter of law. See Costa v Community Emergency
Medical Servs, Inc, 475 Mich 403, 408; 716 NW2d 236 (2006); Wilson v Alpena Co Rd Comm’n,
474 Mich 161, 166; 713 NW2d 717 (2006).
To prevail on a medical malpractice claim, the plaintiff must establish:
(1) the appropriate standard of care governing the defendant’s conduct at
the time of the purported negligence, (2) that the defendant breached that standard
of care, (3) that the plaintiff was injured, and (4) that the plaintiff’s injuries were
the proximate result of the defendant’s breach of the applicable standard of care.
[Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).]
With regard to the proximate cause element, MCL 600.2912a(2) provides:
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. In an action
alleging medical malpractice, the plaintiff cannot recover for loss of an
opportunity to survive or an opportunity to achieve a better result unless the
opportunity was greater than 50%.
Defendants argue that plaintiff failed to present sufficient evidence to satisfy her burden
of demonstrating (1) that she suffered an injury that more probably than not was proximately
caused by defendants’ negligence or (2) that defendants’ negligence resulted in the loss of an
opportunity to avoid the heart surgery that was greater than fifty percent. Plaintiff relies on the
testimony of Dr. Stanton G. Axline to establish proximate cause. It is his deposition testimony
that defendants assert is deficient. During his deposition, Dr. Axline was asked what opinions he
held relative to the issue of causation and he answered: “I think the fundamental concern is that
[plaintiff] suffered an infection due to a staphylococcus that involved her heart and resulted in
generalized sepsis necessitating valve replacement and vigorous and appropriate antibiotic
therapy.” In Dr. Axline’s opinion, plaintiff “had evidence of sepsis when she visited the
emergency room on July 23 of 2002 and probably had been septic for several days . . . .” He
2
The claims against Paul Moczarski, D.O., Macomb Emergency Care Physicians, P.C., and St.
Joseph Mercy Health System, an assumed name for Trinity Health-Michigan, were previously
dismissed.
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believed that plaintiff became bacteremic and developed endocarditis on or before July 23, 2002,
and that the conditions continued to exist “at least until the time of surgery in which she had her
mitral valve replaced.”
The following exchange occurred between defense counsel and Dr. Axline:
Q. It’s impossible to state that antibiotic treatment beginning on July 23, 2002, or
July 24, 2002, would have avoided the need for valve replacement surgery; is
that correct?
***
A. Well, what I would say is that with endocarditis, the greatest opportunity for
preventing damage is to start—is to make the diagnosis as early as you can
and to treat vigorously and appropriately with antibiotics. That decreases the
risk of subsequent complications.
***
Q. . . . My question is whether antibiotic treatment, appropriate antibiotic
treatment begun on July 23, 2002, would have avoided the need for valve
replacement surgery.
***
A. Yeah, the chances of avoiding—the opportunity to avoid the valve surgery is
achieved by starting therapy as soon as possible. So the starting on July 23
certainly would have been an opportunity to decrease the risk of having to
subsequently replace the valve.
Q. By what degree would the risk have been improved or reduced, whichever
way you want to look at it?
A. It’s difficult to quantitate, but we know that it’s a progressive infection with
progressive deterioration. What you can’t quantitate is the magnitude of
deterioration of the valve or surrounding structures as a function of time.
Q. . . . What you’re telling me, Dr. Axline, is that the risk of incurring the need
for valve replacement surgery is diminished in some degree by treatment
beginning at an earlier point in time; is that correct?
A. That is correct.
Q. How much that risk is diminished, as you said, you can’t quantitate.
A. Right, with precision.
Q. With precision. Why can’t it be quantitated with precision?
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A. That’s a good question, and I wish I could give you the answer.
Q. Even though it is your opinion that earlier treatment with appropriate
antibiotics would decrease the risk of developing valve disease which would
in turn require valve replacement surgery, you can’t testify that treatment
given on July 23, 2002, or begun on July 23, 2002, would have avoided valve
injury and the need for valve replacement; correct?
***
A. . . . [I]t’s not a precise science and—but we do know that the earlier you treat
with appropriate therapy, the greater the chance of avoiding complications,
including the need for a valve replacement surgery decreases, and I wish I
could tell you precisely what the magnitude of that decreased risk is and as a
function of time, but we’ve not one number that would apply to all patients.
***
Q. . . . And what you’re telling me is that it’s not an issue that’s capable of
precision in looking at one patient at a time.
A. Correct.
***
Q. . . . Dr. Axline, we know that when treatment began on July 27, 2002, it was
not successful at avoiding valve damage and the need for valve replacement
surgery and all the consequences of that treatment; correct?
A. Yes, and all the consequences of the underlying disease, yeah.
Q. . . . What is unable to be stated with precision, however, is whether the
treatment that was begun on July 27, 2002, if it had been initiated at some
specific earlier point in time, that [plaintiff] would have avoided valve damage
and the need for valve replacement surgery.
***
A. I think the odds of a favorable outcome are improved by earlier therapy.
***
Q. . . . [I]t’s not possible to quantitate the improvement of those odds; is that
correct?
A. There’s not one number that will accurately describe that.
Defendants claim, as they did in their motion for summary disposition, that Dr. Axline’s
testimony neither establishes (1) that more likely than not plaintiff’s injury was caused by the
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alleged negligence nor (2) that the loss of opportunity to achieve a better result was greater than
fifty percent as required by MCL 600.2912a(2).
In response to defendants’ motion for summary disposition, plaintiff submitted an
affidavit prepared by Dr. Axline. In that affidavit Dr. Axline stated:
1. . . . [D]uring my deposition, I was never asked the precise question of
whether the negligence of Defendant in failing to diagnose and immediately treat
[plaintiff] more likely than not caused her need for mitral valve replacement
surgery.
2. . . . [H]ad I been asked what the likelihood was for [plaintiff] to avoid
subsequent surgery and heart valve replacement, I would have said greater than
50%.
At the hearing on defendants’ motion for summary disposition, the trial court considered
Dr. Axline’s deposition testimony that had antibiotic therapy been started on July 23, 2002, the
risk of heart valve replacement would have been decreased. The court noted that at his
deposition, Dr. Axline could not quantitate precisely the degree to which the risk would have
been improved or reduced. But, the court also considered Dr. Axline’s affidavit, finding that it
was not directly contrary to his deposition testimony. In his affidavit, Dr. Axline stated that the
opportunity to achieve a better result would have been greater than fifty percent. The trial court
determined that, at a minimum, plaintiff presented a genuine issue of material fact as to the issue
of proximate cause; accordingly, the motion for summary disposition was denied. We agree with
the trial court’s analysis and conclusion.
“Proximate cause” requires proof of both cause in fact and legal, or proximate, cause.
Craig, supra at 86. To establish cause in fact, the plaintiff must show that “but for” the
defendant’s conduct, she would not have suffered an injury. Id. at 86-87, quoting Skinner v
Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). If the plaintiff establishes cause
in fact, a determination of whether the conduct is a legal or proximate cause of the injuries
follows. Id. at 87. Legal or proximate cause involves examining forseeability and whether the
defendant should be held legally responsible for the consequences of his conduct. Id. at 86-87,
quoting Skinner, supra. A defendant is not entitled to summary disposition if the plaintiff
presents evidence showing “that it is more likely than not that but for [the] defendant’s conduct,
a different result would have obtained.” Dykes v William Beaumont Hosp, 246 Mich App 471,
479 n 7; 633 NW2d 440 (2001).
We conclude that Dr. Axline’s testimony was sufficient to establish a genuine issue of
material fact regarding the issues (1) whether plaintiff’s mitral valve replacement surgery more
probably than not was proximately caused by defendants’ failure to make an early diagnosis and
properly treat her conditions on July 23, 2002, and (2) whether such negligence resulted in the
loss of an opportunity to avoid the heart surgery that was greater than fifty percent. See MCL
600.2912a(2).
Dr. Axline testified that, while he could not precisely quantify the possible reduction in
risk of future surgery resulting from untreated sepsis, bacteremia, and endocarditis, the earlier
that the conditions are treated, the more likely it is that the valve replacement surgery will not be
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needed. While this evidence alone does not adequately satisfy plaintiff’s burden under MCL
600.2912a(2), the opinions expressed in Dr. Axline’s affidavit bolster plaintiff’s case. Dr.
Axline stated in his affidavit that had defendants diagnosed and immediately treated plaintiff, the
likelihood that she would have avoided subsequent surgery and heart valve replacement would
have been more than fifty percent. Considering Dr. Axline’s deposition testimony and the
opinion stated in his affidavit in a light most favorable to plaintiff, we conclude that this
evidence is sufficient to create a question of material fact as to the issue of proximate cause. See
MCL 600.2912a(2).
Defendants assert that Dr. Axline’s affidavit cannot be used to contradict his deposition
testimony. This assertion is correct. A party may not create an issue of fact by asserting
contrary facts after giving damaging testimony in a deposition. Dykes, supra at 480. The Court
explained: “‘If a party who has been examined at length on deposition could raise an issue of fact
simply by submitting an affidavit contradicting his own prior testimony, this would greatly
diminish the utility of summary judgment as a procedure for screening out sham issues of fact.’”
Id. at 481, quoting Perma Research & Development Co v Singer Co, 410 F2d 572, 578 (CA 2,
1969).
However, Dr. Axline’s affidavit does not contradict his deposition testimony. Contrary
to defendants’ argument, Dr. Axline did not “repeatedly refuse[] to quantify his theory.” At Dr.
Axline’s deposition, defense counsel asked him “by what degree would the risk [of avoiding
valve surgery] have been improved or reduced,” and Dr. Axline responded that it was difficult to
quantitate with precision. That is, he could not put a precise number or one number on the
degree to which the risk of surgery would have been reduced by earlier treatment. Dr. Axline
was not asked at his deposition whether the risk of avoiding the surgery was greater or less than
fifty percent. And, in his affidavit, Dr. Axline did not attempt to precisely quantify the reduction
in risk. He simply explained that the likelihood of avoiding the surgery would have been greater
than fifty percent. We conclude that Dr. Axline’s affidavit was properly considered by the trial
court and that the opinion expressed in that affidavit, read together with his deposition testimony,
provides sufficient evidence to support plaintiff’s claim and survive summary disposition.
Therefore, the trial court properly denied defendants’ motion for summary disposition on this
basis.
Affirmed.
/s/ Pat M. Donofrio
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
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