JOSEPHINE WILSON V HENRY FORD HEALTH SYSTEM
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
JOSEPHINE WILSON, as Personal Representative
of the ESTATE OF RONALD WILSON,
Deceased,
UNPUBLISHED
July 24, 2008
Plaintiff-Appellee,
No. 275997
Wayne Circuit Court
LC No. 03-330454-NH
v
MARY KEIM, CRNA,
Defendant-Appellant,
and
HENRY FORD HEALTH SYSTEM and S.
GOVINDASWAMY, M.D.,
Defendants.
JOSEPHINE WILSON, as Personal Representative
of the ESTATE OF RONALD WILSON,
Deceased,
Plaintiff-Appellant,
No. 276022
Wayne Circuit Court
LC No. 03-330454-NH
v
MARY KEIM, CRNA,
Defendant-Appellee,
and
HENRY FORD HEALTH SYSTEM, HENRY
FORD HOSPITAL, and S. GOVINDASWAMY,
M.D.,
Defendants.
-1-
JOSEPHINE WILSON, as Personal Representative
of the ESTATE OF RONALD WILSON,
Deceased,
Plaintiff-Appellee,
v
No. 276446
Wayne Circuit Court
LC No. 03-330454-NH
MARY KEIM, CRNA,
Defendant-Appellant,
and
HENRY FORD HEALTH SYSTEM, d/b/a
HENRY FORD HOSPITAL, and S.
GOVINDASWAMY, M.D.,
Defendants.
Before: Meter, P.J., Talbot and Servitto, JJ.
PER CURIAM.
Defendant Mary Keim (defendant), a certified registered nurse anesthetist (CRNA),
appeals as of right from a jury verdict in favor of plaintiff. She raises multiple allegations of
error. Plaintiff also appeals, arguing that the trial court erred in (1) applying the lower
noneconomic damages cap under MCL 600.1483 and (2) reducing the jury’s award of past
economic damages. We affirm the finding of liability but vacate certain portions of the award of
costs. We also remand this case for a new determination regarding attorney fees and regarding
whether the higher noneconomic damages cap applies, and we slightly modify the trial court’s
ruling concerning the past economic damages.
Plaintiff’s decedent, Ronald Wilson, had eye surgery at Henry Ford Hospital on May 29,
2001. He suffered a cardiac arrest during the reversal of his anesthesia, and he died on July 13,
2001, as a result of complications from that cardiac arrest. Plaintiff sued defendant, as well as
Henry Ford Health System and Dr. Sunitha Govindaswamy, M.D., the anesthesiologist. These
appeals deal solely with the case against defendant.
The jury found for plaintiff and awarded $500,000 in past economic damages and
$2,000,000 in past noneconomic damages. It concluded that defendant was twenty percent at
-2-
fault for Wilson’s death and that Henry Ford and Dr. Govindaswamy were eighty percent at
fault.1
I
Defendant argues that the trial court should have granted her motion for summary
disposition, brought under MCR 2.116(C)(10), because plaintiff failed to bring forth sufficient
causation evidence. Specifically, defendant contends that plaintiff’s standard-of-care experts
offered conflicting reasons for the cause of death.
We review de novo a trial court’s grant or denial of summary disposition. Pinckney
Community Schools v Continental Casualty Co, 213 Mich App 521, 525; 540 NW2d 748 (1995).
“A motion for summary disposition may be granted pursuant to MCR 2.116(C)(10) when, except
with regard to the amount of damages, there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.” Pinckney Community Schools, supra at 525.
The moving party has the initial burden of supporting its position that there is no genuine issue
of material fact by pointing to affidavits, depositions, admissions, or other documentary evidence
in the record. Neubacher v Globe Furniture Rentals, 205 Mich App 418, 420; 522 NW2d 335
(1994). The burden then shifts to the nonmoving party to show that a genuine issue of material
fact does exist. Id.
At his deposition, Charles M. Bauman, CRNA, one of plaintiff’s expert witnesses, opined
that Wilson had a cardiac arrest because of the effects of neostigmine, an anesthesia reversal
agent. He stated that “neostigmine can cause a profound and irreversible bradycardia.”2 He
further stated that, based on his review of the record, Wilson did not get “an adequate amount of
. . . Robinul, to counteract the neostigmine.” He indicated that Wilson had been given 4
milligrams (mgs) of neostigmine and .8 mgs of Robinul and that he would have given different
amounts. Bauman clarified, however, that he did not view it as a breach of the standard of care
for defendant to administer 4 mgs of neostigmine and .8 mgs of Robinul. What he did view as a
breach was defendant’s failure, after Wilson began experiencing bradycardia, to administer a
single shot of 1 mg of atropine. Instead, defendant administered two shots of .4 mg of atropine.
He stated that “administering fragmented doses of atropine in small amounts can cause a
paradoxical reaction to the atropine and [the patient] can have . . . more . . . bradycardia.”
Bauman testified that he was not critical of defendant for administering morphine.
When asked to describe in what ways defendant breached the standard of care, Bauman
stated:
1
The record reveals that a “percentage of fault” question was submitted to the jury, despite the
fact that joint-and-several liability applied in this medical-malpractice case, because of concerns
surrounding the eventual payment of insurance benefits by the different defendants’ various
insurance carriers.
2
Bradycardia, alternately known as brachycardia, refers to a low heart rate.
-3-
First breach in my opinion is that she failed to manage the anesthetic
properly during the . . . surgery. In failing to manage that properly, she didn’t
keep the patient deep enough, and so that allowed the patient to buck during the
anesthetic. That is against the standard of care, especially during an intraocular
procedure. I feel . . . in my professional opinion she failed to manage the reversal
of the anesthetic, and more specifically reversal of the neuromuscular blocker,
which [resulted in] profound bradycardia and subsequent cardiac arrest.
She failed to use the appropriate anesthetic and paralytic agents during the
ocular procedure, and failed to use the appropriate reversal agent . . . atropine in
the correct amounts to combat the profound bradycardia. And it is my opinion
that she quite likely failed to ventilate the patient for a period of time, which may
have compounded the bradycardia. I believe that’s it.
As far as causation of injury, Bauman stated, “I think the failure to monitor properly the patient’s
heart rate after she gave the neostigmine was the critical point.” He later elaborated by stating:
I believe what happened, and I base this opinion on what I can see from
the chart and the numeric values here on the chart, I believe she reversed the
neuromuscular blocker [Nimbex] with neostigmine and Robinul and for some
reason failed to pick up – immediately pick up on a rapid[ly] decreasing heart
rate.
The following exchange also occurred:
Q. Are you able to give a percentage that more likely than not had 1 milligram
been given to this patient at the time that [defendant] administered the .4
atropine followed by the 3.4 that the outcome would be different?
A. No.
Q. And why is that?
A. Because I don’t know what the percentage would be, if there is a percentage.
I don’t know if there had ever been any studies done on that. All I know is
that low doses of atropine cause a paradoxic reaction.
Dr. James Futrell, Jr., M.D., another of plaintiff’s experts, offered primarily to establish
the negligence of Dr. Govindaswamy and Henry Ford, testified at his deposition that he was
critical of the fact that Wilson had been given morphine. He opined that Wilson suffered “a
cardiac arrest caused by a preliminary respiratory arrest because he was not ventilated.” He
stated that morphine itself was not necessarily contraindicated, but
the administration of morphine at that particular time created an . . . additional
duty upon the nurse anesthetist and her superior, Dr. Govindaswamy, to monitor
and to support this patient’s respiration because of the potential for additive
respiratory depression.
-4-
He stated that Wilson should have been monitored more closely and given breathing support.
When asked whether the administration of any drugs, besides morphine, contributed to
Wilson’s problems, he answered:
The drugs that could have interacted along [the] way . . . included . . . the
neostigmine [that was] given. Certainly [n]eostigmine is known and, in fact, a
very dangerous drug even though we use it commonly for reversal. If you’re not
aware of the . . . muscarinic effect . . . of [n]eostigmine which is to stimulate the .
. . vagus nerve and could cause brachycardia and cardiac arrest.
That’s the reason why Robinul . . . is given, to reverse the complicated
side effect of [n]eostigmine. So those drugs were all part and were given along in
that period creating some interesting chemistry in a patient who is cold,
overventilated, given narcotics and then reversed and then not ventilated.
When asked about the administration of atropine, Dr. Futrell testified:
The [a]tropine in the dose that it was given in – for a patient that’s 255
pounds when you have a – a pulse rate of 20 was low. .4 of [a]tropine is probably
the lowest initial dosage to be giving any adult patient. In fact, the literature
supports evidence that the lower doses of [a]tropine can, in fact, cause paradoxical
effects. And, you know, the more appropriate[] dose for this patient in this
particular setting might be one milligram to two milligrams of [a]tropine to
reverse what they thought would be the effects of neostigmine.
Dr. Futrell stated that he was critical of the fact that Wilson was given a first dose of only .4 mgs
of [a]tropine.
After defendant moved for summary disposition, arguing that plaintiff did not prove
causation because Bauman and Dr. Futrell provided conflicting testimony regarding the cause of
death, the court denied the motion, stating:
It was defendant Mary Kiem, a certified registered nurse anesthetist or
CRNA that [sic] moved for summary disposition. This is a claim that alleges the
negligent administration of anesthesia that lead [sic] to the death of the deceased.
Plaintiff of course must prove that the defendant breached the standard of
care and that the defendant’s negligent conduct caused damage.
Plaintiff must also prove that the opportunity to survive or achieve a better
result was reduced by greater than 50 percent because of the malpractice.
Expert testimony in malpractice cases is usually required to prove the
breach of the standard of care and causation.
Here, the plaintiff[’s] standard of practice expert Bauman . . . indicated
that the deceased suffered cardiac arrest, that the defendant failed to note a
-5-
decreased heart rate soon enough and administered too low a [dose] of [a]trophine
[sic] in an attempt to resuscitate the plaintiff [sic].
Plaintiff’s causation expert, Futrell, . . . indicated that the deceased
suffered respiratory arrest which was due to the defendant’s negligent
administration of morphine to an underventilated patient.
The deposition testimony of Bauman [and] Futrell, Bauman at page 50
lines 1 through 7 and Futrell page 103 lines 20 through 25, indicate that the failure
to ventilate the patient contributed to the death. Importantly, causation expert
Futrell indicated that that particular failure breached the standard of care.
It is in this respect that the testimony of the 2 experts can and should be
harmonized. There are certainly instances wherein their testimony appears
contradictory, such will be for a jury to sort out.
Additionally, plaintiff has met her burden that the deceased lost greater
than a 50 percent chance of survival as a result of defendant’s negligence.
Each of the experts testified that if the appropriate care had been rendered,
the patient would not have arrested, suffered brain damage and death. Proper
monitoring and ventilation would likely have not resulted in cardiac arrest and/or
respiratory failure and thus death.
Accordingly the motion for summary disposition is denied.
The trial court did not err in denying the motion for summary disposition. The two
experts’ testimony was not clearly inconsistent. Bauman mentioned a lack of ventilation of
Wilson, and Dr. Futrell was critical regarding the dose of atropine. While, as the trial court
noted, there were inconsistencies in their deposition testimony, the testimony nonetheless left
open a genuine question of material fact.
Defendant also takes issue with Bauman’s inability to quantify, with specificity, the
chance of a different outcome if Wilson had been given 1 mg of atropine. However, despite
Bauman’s reluctance to provide a specific percentage, he testified that the failure to give 1 mg of
atropine in a single shot “[a]bsolutely” made a “difference.” We view this deposition testimony
as sufficient to establish the requisite causation. See MCL 600.2912a(2). Reversal is
unwarranted.
-6-
II
Defendant additionally contends that the trial court should have granted her motion for a
directed verdict based on a lack of causation evidence at trial.3 As noted in Smith v Jones, 246
Mich App 270, 273; 632 NW2d 509 (2001):
Motions for a directed verdict are reviewed de novo. In reviewing a
denied motion for a directed verdict, this Court must determine whether the party
opposing the motion offered evidence on which reasonable minds could differ.
The test is whether, viewing the evidence in the light most favorable to the
adverse party, reasonable persons could reach a different conclusion. If so, the
case is properly left to the jury to decide. [Citations omitted.]
Plaintiff contends that there was no admissible causation evidence concerning plaintiff’s
“atropine” theory of liability because (1) plaintiff’s attorney admitted that Bauman was not
qualified to testify about the effects of atropine and (2) the trial court sustained defendant’s
objections to Dr. Futrell’s offering testimony concerning the possible change in outcome if the
deceased had been given a different dose of atropine.
Defendant misinterprets the record. Plaintiff’s attorney did not admit that Bauman was
not qualified to testify about the effects of atropine. Instead, he admitted that Bauman was not
qualified to testify about the difference it would have made if defendant had called a Code Blue4
sooner.5 Moreover, Dr. Futrell testified, without objection, that had Wilson been administered
the appropriate dose of atropine at the appropriate time, it was more likely than not that “the
cardiac arrest could have been eliminated.” Dr. Futrell gave this testimony in response to
plaintiff’s attorney’s question regarding whether a different administration of atropine “would
have made a difference in my client’s outcome.” It was only when plaintiff’s attorney asked the
following question that defendant’s foundational objection was sustained: “And had likewise
that been done in the matter [sic] you just described, do you have an opinion as to whether my
client would likely have survived and lived what was a normal life for him?” In light of this
record, we reject defendant’s assertion that the trial court precluded Dr. Futrell from offering any
testimony concerning the possible change in outcome if Wilson had been given a different dose
of atropine. Defendant’s appellate argument concerning the atropine claim is without merit.
Defendant additionally contends that plaintiff’s “delay” claim, concerning the calling of
the Code Blue, was untenable because there was insufficient evidence that defendant delayed in
3
The trial court denied defendant’s directed verdict motion without providing specific reasoning.
4
A liability theory advanced by plaintiff at trial was that defendant failed to call a Code Blue in a
timely manner after Wilson suffered a cardiac arrest. It was explained at trial that a Code Blue is
“called” when a patient is in imminent danger of dying. Pushing the Code Blue button alerts
appropriate personnel who have been trained to respond to such a crisis.
5
Plaintiff’s attorney indicated that Dr. Futrell could “fill[] in” the proximate cause gaps in
Bauman’s testimony.
-7-
calling the Code Blue. She contends that the trial court should have granted a directed verdict
with regard to this theory.
Defendant’s notes in the anesthesia record indicate that Wilson’s heart rate dropped
precipitously at around 2:50 p.m.; however, defendant testified that she mistakenly recorded the
heart-rate drop in the wrong time-frame box. She indicated that the drop actually occurred at
3:00 p.m., which is when the Code Blue was called. Tanya6 Livingston, an assisting nurse,
testified, based on her notes, that Wilson’s heart rate dropped at 2:53 p.m. She testified that she
then called for Dr. Govindaswamy and then pressed the Code Blue button. She stated that she
was not sure if she looked at a clock when recording the 2:53 p.m. time in her notes.
Defendant argues that the times recorded in defendant’s and Livingston’s notes were
mistakes or inaccurate estimates that occurred because of the cardiac emergency and that no
reasonable juror could conclude that a delay occurred. We disagree. The charts were evidence
that Wilson’s heart rate dropped precipitously at around 2:53 p.m., and additional evidence
established that the Code Blue was called at 3:00 p.m. Accordingly, there was sufficient
evidence in the record of a delay, and defendant’s appellate argument is unavailing.
III
Defendant claims that the trial court committed errors requiring reversal in failing to
enforce three of its own orders. This issue could be viewed as involving questions of law. We
review questions of law de novo. Shinkle v Shinkle, 255 Mich App 221, 224; 663 NW2d 481
(2003). Given that the issue also involves the admission of evidence and the denial of mistrial
motions, it may also be appropriate to review this issue using the abuse-of-discretion standard.
Persichini v William Beaumont Hosp, 238 Mich App 626, 635; 607 NW2d 100 (1999);
Hottmann v Hottmann, 226 Mich App 171, 177; 572 NW2d 259 (1997). At any rate, under
either standard of review, we find no basis for reversal.
First, we note that we are critical of defendant’s failure to include specific page
references to the transcripts as part of her appellate argument. Instead, defendant refers back, in
general, to her statement of facts. This is inappropriate. As noted in MCR 7.212(C)(7), the
argument portion of an appellant’s brief is to contain specific page references to the appropriate
portion of the record. Nevertheless, we will review the issue, although it is not entirely clear to
us to which of the trial court’s actions defendant specifically objects.
Defendant first claims that the trial court failed to enforce its order that Dr. Futrell could
not offer standard-of-care testimony against defendant. In response to a motion filed by
defendant, the court issued an order stating that “Dr. Futrell shall not testify concerning standards
of practice applicable to Defendant Mary Keim, CRNA, nor alleged violations of those
standards.” At trial, Dr. Futrell criticized defendant’s recordkeeping. He also indicated that a 1
mg dose of atropine should have been administered. Defendant moved for a mistrial, stating that
6
This name is also, at times, spelled “Tayna” in the record.
-8-
Dr. Futrell had improperly offered standard-of-care testimony against defendant. The court
denied the motion, stating, in part:
First, I do not believe that Dr. Futrell has testified with regard to any
breach of the standard of care by Nurse Keim.
He can permissibly testify to what he believes occurred, how it occurred,
what occurred, why it occurred. And that’s what he has testified to.
We find no error requiring reversal. Dr. Futrell’s testimony was not specifically directed toward
establishing that defendant violated the standard of care for CRNAs. Instead, he gave an
overview of what he believed happened in the case. This was appropriate and was necessary to
place his testimony against Dr. Govindaswamy in context.
Defendant next claims that the trial court failed to enforce its order that plaintiff could not
argue or infer negligence based on the lack of complications from a November 2000 surgery that
Wilson had undergone. Before trial, the court had ruled that “no negligence can be drawn” from
the fact that Wilson did not suffer complications during a prior surgery. However, it also ruled
that the prior surgery was admissible as it related to “causation and . . . damages.” At trial, Dr.
Futrell indicated that the prior surgery was significant because it showed that “the patient would
be able to undergo a similar procedure under similar circumstances with appropriate monitoring,
etcetera, without any particular expected complication.” He later testified that the prior surgery
“demonstrates that with appropriate management, there’s a reasonable expectation . . . that you
will be able to manage the patient without any unusual expected complications again.”
Defendant moved for a mistrial, and the trial court denied the motion, stating:
I’m satisfied all the testimony goes to the assessment of risk. And that’s
what is I think is the thrust of the questioning. And it does not go to the issue that
was addressed, and that is because if there was [sic] – how can I put it – it is not
evidence of malpractice now that there was no bad result before.
The trial court did not err in its ruling. Evidence of the prior surgery was relevant, as the
trial court stated, because it helped to demonstrate that Wilson was not subject to any increased
risk of harm from anesthesia. Moreover, the trial court instructed the jurors as follows:
I also charge you that in considering any breach of the standard of care by
Henry Ford Health System or Mary Keim, you are not to draw any inference of
whether or not there was negligent care on May 29th 2001, from the lack of
complications following the November 2 thousand [sic] eye surgery.
Under the circumstances, reversal is unwarranted.
Defendant next claims that the trial court failed to enforce its order that there could be no
allegations of malpractice based on defendant’s alleged failure to chart appropriately. Before
trial, the court ruled, in response to a motion filed by defendant, as follows: “With regard to
charting, . . . the charting is clearly admissible. It’s not – it cannot be malpractice in and of itself.
But it certainly can be evidence that tends in that direction or the other direction. To relevant
evidence [sic], it can be introduced.” The court also stated, “what a professional puts in the chart
-9-
or doesn’t put in the chart, is certainly admissible.” It added, “[The defense attorneys] can’t
argue that the failure to chart or the chart is incorrect, the chart is malpractice itself. They cannot
argue that.”
Defendant has pointed to no instance in which plaintiff violated the trial court’s order
regarding charting. The testimony by certain witnesses about improper charting was allowable;
plaintiff was merely precluded from arguing that the improper charting itself constituted
malpractice. Defendant has not demonstrated that this occurred, and reversal is unwarranted.
IV
Defendant argues that the trial court should have granted her motion for a directed verdict
or her motion for a judgment notwithstanding the verdict (JNOV) because plaintiff failed to
comply with MCL 600.2912b.7 The standard of review applicable to a motion for a directed
verdict is set forth in section II of this opinion. The standard of review applicable to a motion for
a JNOV is the same. Smith, supra at 273-274.
Defendant claims that the notice of intent (NOI) required by MCL 600.2912b was not at
all directed toward defendant, the standard of care provided was nonspecific, there was no
appropriate statement regarding the manner in which the standard of care was breached, the list
of actions required to comply with the standard of care was inadequate, and it was not
sufficiently alleged that a breach of the standard of care was a proximate cause of the death.
We conclude that the trial court correctly determined the NOI to be compliant with the
statutory requirements and correctly denied the motions for a directed verdict and a JNOV.
MCL 600.2912b(4) mandates that a NOI contain the following information:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of
practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance
with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice
or care was the proximate cause of the injury claimed in the notice.
7
In denying defendant’s motion for a directed verdict and her motion for a JNOV, the trial court
rejected this argument without elaboration.
-10-
The purpose of the NOI is to notify “potential malpractice defendants of the basis of the
claims against them.” Roberts v Mecosta Co Gen Hosp (Aft Rem), 470 Mich 679, 696 n 14; 684
NW2d 711 (2004). “The expected level of specificity must be considered in light of the fact that
discovery would not yet have begun.” Boodt v Borgess Med Ctr (Boodt I), 272 Mich App 621,
626; 728 NW2d 471 (2006), reversed on other grounds Boodt v Borgess Med Ctr (Boodt II), ___
Mich ___; ___ NW2d ___; 2008 WL 2601350 (2008).8 There must be enough details to “allow
the potential defendants to understand the claimed basis of the impending malpractice action . . .
.” Roberts, supra at 691-692 n 7. Additionally, the NOI only need have the required
information present in an accessible, discernable form. Boodt I, supra at 628. “The important
principle is that [when reading a NOI] a defendant must not be forced ‘to guess upon what
grounds plaintiff believes recovery is justified,’ but at the same time plaintiffs should not be
subject to the ‘straightjacket’ of ‘[e]xtreme formalism . . . .’” Id. at 627, quoting Dacon v
Transue, 441 Mich 315, 329; 490 NW2d 369 (1992). Therefore, a NOI is reviewed as a whole.
Boodt I, supra at 630.
The NOI was sufficient according to the statutory requirements and the above case law.
Paragraph 1 provided a lengthy statement of facts establishing the factual basis for the claim.
See MCL 600.2912b(4)(a). Defendant’s claim that the NOI was not directed towards her is
unfounded because defendant was mentioned in paragraph 1 as the attending CRNA, and further
sections of the NOI set forth the standard of care, breach, actions that should have been taken to
avoid the breach, and proximate cause of the injury with regard to the CRNA. The lack of
specific negligent acts or omissions directly attributed to defendant in the NOI was by no means
fatal; discovery had not yet taken place, so a high level of specificity was not required. See
Boodt I, supra at 626. It was clear that this document was directed towards defendant, among
others, and it gave appropriate notice regarding the basis of the suit against her.
The standard of care was also properly stated in paragraph 2. This paragraph stated, in
part, that the CRNA and others were required to:
a. Properly manage the administration of anesthesia during an ocular
procedure;
b. Properly monitor a patient under anesthesia during an ocular procedure,
so as to avoid causing the patient to “buck” during the procedure;
8
Although in Boodt II, 2008 WL 2601350, 1, the Supreme Court declared the NOI involved in
the case to be invalid for not properly stating the manner in which the breach of the standard of
care was the proximate cause of the injury, it did not overrule the general principles from Boodt I
that are cited in this opinion. In fact, it appears that the Supreme Court found the statement of
proximate cause insufficient in spite of its consideration of the general principles from Boodt I;
the Court ruled, “[e]ven when the notice is read in its entirety, it does not describe the manner in
which the breach was the proximate cause of the injury.” Id. (emphasis added). The Supreme
Court also noted that a NOI is provided early in the proceedings and that it need not be perfect.
Id.
-11-
c. Properly manage the reversal of anesthesia following an ocular
procedure;
***
e. Use the appropriate anesthetic and paralytic agents during an ocular
procedure;
f. Use the appropriate reversal agents following the administration of
anesthesia;
g. Appreciate a patient’s medical history when determining the appropriate
anesthesia agents and procedures . . . .
These statements were sufficient to provide clear notice about the basis of the malpractice action.
The fact that this standard of care was attributed to not just defendant but to several others was
not fatal because the same standard of care could apply to personnel in other positions.
Additionally, the allegations of the manner that the standard of care was breached
(paragraph 3) and the statement of which actions should have been taken to comply with the
standard of care (paragraph 4) were proper. Although both sections repeat what was alleged in
the “standard of care” paragraph, that does not cripple the NOI because both sections fulfill the
statutory purpose, and, again, there need not have been a high level of specificity, considering
that discovery had not yet taken place. Id. Further, the NOI suitably stated that the breach was
the proximate cause of death in paragraph 5 by referring back to the standard of care in
paragraph 2 and to the way that standard was breached in paragraph 3. Paragraph 5 also
indicated that Wilson suffered a cardiac arrest as a result of the breach and that this led to his
death.
The Supreme Court recently declared a statement of proximate cause in a NOI
insufficient because it did not set forth the manner in which it was alleged that the breach was the
proximate cause of the injury. Boodt II, 2008 WL 2601350, 1. We conclude that this holding
does not affect our opinion in the present case because the NOI in the present case did contain
the required information – as noted, it alleged that defendant’s breach induced a cardiac arrest
that ultimately led to death.
When the NOI is viewed as a whole, we find no basis for reversal.
V
Defendant contends that the trial court should have granted her motion for a directed
verdict or her motion for a JNOV because Bauman was not familiar with the applicable standard
of care.
Defendant takes issue with the following exchange that occurred during Bauman’s
testimony:
-12-
Q. And didn’t you testify that you’re not familiar with how other CRNA’s
provide care? You only know what you do and what you were taught?
A. Yes.
Q. And you would expect that you were taught the best practice, not the average
level of practice, right?
A. I absolutely believe that. Yes.
Defendant contends that Bauman was only qualified to testify about his own practices and not
about the average level of practice. Defendant made a similar argument in her motion for a
directed verdict. The trial court rejected the argument without any specific reasoning.
Defendant also made a similar argument in her motion for a JNOV, and the trial court again
rejected the argument without elaboration.
We find no basis for reversal. Bauman testified that a reasonably prudent CRNA would
not start a case without having a 1 mg syringe of atropine drawn up and ready to go. He also
testified that a reasonably prudent CRNA would immediately call a Code Blue when a patient
goes into cardiac arrest. There were other instances, too, in which Bauman testified about what a
reasonably prudent CRNA would do. Despite his belief that he was given a superior education,
and despite his acknowledgment that he was not familiar with precisely how other CRNAs
provide care, the record ultimately reflects that Bauman was indeed familiar with the standard of
care applicable in this case.
Defendant also suggests that Bauman was not familiar “with the local standard of
practice for CRNA’s in Detroit in 2001, because his only testimony was that he had not worked
in the Detroit [sic] since the early 1990’s.” This argument is without merit. There is simply no
indication that the standard of practice in Detroit in 2001 was somehow different from the
standard of care with which Bauman was familiar. Bauman testified regarding what a
reasonably prudent CRNA would do, and there is no reason to believe that these actions should
somehow have been different in the Detroit area.
VI
Defendant argues that the trial court should have granted her motion for a directed verdict
or her motion for a JNOV because plaintiff failed to file an affidavit of merit that complied with
MCL 600.2912d.9 Specifically, defendant claims that the affidavit contained no standard of care
for a CRNA, contained no statement of actions that should have been taken to comply with the
standard of care, and did not state the manner in which defendant’s negligent acts were a
proximate cause of the plaintiff’s death. Also, defendant argues that there was no statement that
9
In denying defendant’s motion for a directed verdict and her motion for a JNOV, the trial court
rejected this argument without elaboration.
-13-
the standard of care was breached by the health professional receiving the notice, because the
affidavit only stated that “[d]efendants” deviated from the standard of care.
MCL 600.2912d(1) requires that an affidavit of merit set forth the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of
practice or care was breached by the health professional or health facility
receiving the notice.
(c) The actions that should have been taken or omitted by the health
professional or health facility in order to have complied with the applicable
standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was
the proximate cause of the injury alleged in the notice.
We conclude that Bauman’s affidavit of merit was acceptable. The affidavit in question
did not have the mandatory information enumerated in separate paragraphs, but the information
was discernable within the entire document. The requirements of a standard of care, breach, and
actions that should have been taken to comply with the standard of care could be found in
paragraph 4. This paragraph stated, in part, that defendants should have:
a. Properly managed the administration of anesthesia during an ocular
procedure;
b. Properly monitored a patient under anesthesia during an ocular
procedure, so as to avoid causing the patient to ‘buck’ during the procedure;
c. Properly managed the reversal of anesthesia following an ocular
procedure;
***
e. Used the appropriate anesthetic and paralytic agents during an ocular
procedure;
f. Used the appropriate reversal agents following the administration of
anesthesia;
g. Appreciated a patient’s medical history when determining the
appropriate anesthesia agents and procedures . . . .
There is no reason to believe that a reader would be forced to guess what the standard of
care was or guess the manner in which the standard was breached. Moreover, the statement of
proximate cause in paragraph 5 was appropriate because it referred back to paragraph 4; a reader
-14-
could properly understand that, but for the negligent acts or omissions in paragraph 4, the patient
would not have died. Paragraph 5 stated: “As a proximate result of negligent acts and/or
omissions of [d]efendants as set forth above, [p]laintiff [sic] suffered unnecessary pain and
ultimately died.” While Boodt II, 2008 WL 2601350, 1, indicated that a general statement of
proximate cause such as this is insufficient, we do not view Boodt II as binding with respect to
this issue because Boodt II dealt with a NOI and not an affidavit of merit.10 The affidavit’s
information was sufficiently specific, considering that discovery had not yet taken place. The
affidavit fulfilled its purpose of ensuring trustworthy medical testimony and discouraging
frivolous lawsuits. Nippa v Botsford Gen Hosp, 257 Mich App 387, 394; 668 NW2d 628 (2003).
Additionally, it was of no import that the affidavit was directed only towards the
“defendants,” because Bauman is clearly a CRNA, as stated in paragraph 2, and could only
certify claims against another CRNA. Defendant was identified as a CRNA in the caption, and
the affidavit properly set forth her alleged negligence.
The trial court correctly found Bauman’s affidavit of merit to be sufficient and
appropriately denied defendant’s motions for a directed verdict and for a JNOV.11
VII
Defendant argues that the court erred in failing to find that the jury’s award for medical
expenses should have been lower. Defendant asserts that the jury’s award included $124,168 for
past medical expenses. Defendant contends that Health Alliance Plan (HAP) essentially agreed
to reduce the charges of $124,168 because it paid $4,271 and asserted a lien for $4,271;
defendant argues that this amount, therefore, represented the actual medical expenses.
Defendant contends that the trial court should have reduced the jury’s award by $119,897
($124,168 minus $4,271).
The parties frame this issue as one involving a “collateral source.” See MCL 600.6303.
Defendant states that $119,897 was “subject to collateral source reduction.” MCL 600.6303(2)
states that “[t]he court shall determine the amount of the plaintiff's expense or loss which has
been paid or is payable by a collateral source,” and MCL 600.6303(1) indicates that a judgment
must be reduced by the collateral-source amount. Evidently, defendant believes that the
$119,897 should be viewed as “paid or . . . payable by a collateral source” because HAP
essentially agreed to absorb that amount of money and instead settle for $4,271.
10
As explained in section IV of this opinion, the NOI in this case contained a sufficient
statement of proximate cause.
11
Defendant makes the additional argument that plaintiff’s attorney admitted at the directedverdict motion hearing that Bauman was not qualified to offer opinions concerning proximate
cause. Defendant argues that this provides additional support for her argument that the affidavit
of merit was inadequate. This argument actually goes towards the sufficiency of the evidence at
trial, not the sufficiency of the affidavit of merit. See, e.g., Sturgis Bank & Trust Co v Hillsdale
Comm Health, 268 Mich App 484, 494-495; 708 NW2d 453 (2005).
-15-
We find no abuse of discretion.12 The trial court did not err in refusing to order a new
trial, remittitur, or relief from judgment.
We initially note that the amount of the lien as set forth in the documentation and as
argued at the post-trial motion hearing was $4,241.54, not $4,271. The September 2006 letter
from HAP stated, in part:
Per my correspondence, I indicated I need to confirm the total amount
paid by the Plan relating to this claim. The Plan has confirmed payment in excess
of $100,000, however, most of those claims are “capitulated” and therefore will
not be asserted for reimbursement. The total amount of paid claims for which the
Plan seeks reimbursement is $4,241.54.
This will confirm that the Plan has agreed to resolve this matter for the
sum of $4,241.54 as full and final payment.
At the motion hearing, plaintiff’s attorney argued:
They [HAP] said the bill has been some term that means like recycled or
recapitulated so they weren’t asking us to reimburse that.
But the fact of the matter is under the wrongful death statute we are
entitled to the medical expenses. We put in the medical expenses which were a
hundred and 24 thousand.
The attorney also argued that
the jury may not even have given us that hundred and 24 thousand dollars. Those
past economic damages could have been for wages and services around the house
and all the other economic damages that we asked for. And it would be
inappropriate to reduce that without some showing. I mean, the defendants have
the burden of proof on this issue [and] they haven’t come forward [with]
anything.
After the defense attorneys made their arguments for a reduction in the damages award,
the court stated:
12
Defendant frames this issue in the context of the trial court’s refusal to order a new trial,
remittitur, or relief from judgment. The abuse-of-discretion standard of review is applicable.
Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001) (new trial); Coble v
Green, 271 Mich App 382, 392; 722 NW2d 898 (2006) (remittitur); Blue Water Fabricators, Inc
v New Apex Co, Inc, 205 Mich App 295, 300; 517 NW2d 319 (1994) (relief from judgment).
-16-
But see, here you’re addressing what is a fundamental process and that is
trying to determine what the jury meant when they came back with a specific
dollar amount.
I mean at the heart of the jury system is the discretion we give these folks
in effect to do what they want to do.
One of the defense attorneys responded that the only basis in the record for economic loss were
the three figures recited by plaintiff’s attorney: $169,000 for lost wages, $21,403 for lost
household services, and $124,168 for medical bills, for a total of $314,571. The defense attorney
stated:
So, since the jury verdict exceeded that amount,[13] and there is no other
basis to support it, they must have included the medical bill and therefore you
don’t need a specific breakdown, because there is no other possible way to
explain the magnitude then of the economic award because the only three things
they argued add up to less than [sic].
Plaintiff’s attorney responded that her client had a bill for $124,168 at the time of trial in July
2006 and that the jury properly considered it.
The trial court concluded that there should be no reduction in the damages amount based
on the medical bill. As far as reasoning, it stated only that “given the posture of this case there
should be no reduction.”14 We find no abuse of discretion in the court’s ruling.15 The trial court
did not err in refusing to order a new trial, remittitur, or relief from judgment.
13
The jury awarded $500,000 for “medical expenses, loss of financial support, loss of service
and/or loss of gifts or valuable gratuities.”
14
A couple of months later, in December 2006, after defendant argued that the evidence
supported no amount of past economic damages beyond the $314,571 recited by plaintiff’s
attorney, the court ruled:
I am satisfied the record does not support recovery of more than 3 hundred
14 thousand 5 hundred and 71 dollars for past economic loss in this case. It’s
quantifiable to the penny under the circumstances of this case. So the judgment is
reduced from 5 hundred thousand to 3 hundred 14 thousand 5 hundred 71 with
regard to past economic damages.
15
Defendant frames this issue in the context of the trial court’s refusal to order a new trial,
remittitur, or relief from judgment. The abuse-of-discretion standard of review is applicable.
Kelly v Builders Square, Inc, 465 Mich 29, 34; 632 NW2d 912 (2001) (new trial); Coble v
Green, 271 Mich App 382, 392; 722 NW2d 898 (2006) (remittitur); Blue Water Fabricators, Inc
v New Apex Co, Inc, 205 Mich App 295, 300; 517 NW2d 319 (1994) (relief from judgment).
-17-
The pertinent case is Zdrojewski v Murphy, 254 Mich App 50; 657 NW2d 721 (2002). In
that case, the defendants made a similar argument to that made by defendant here. This Court
stated:
In this case, plaintiff's health care insurers, Blue Cross Blue Shield of
Michigan (BCBSM) and Medicare[,] made payments for plaintiff's medical care.
Under MCL 600.6303(4), these payments would meet the initial definition of a
collateral source benefit. However, BCBSM and Medicare also exercised their
right to liens against plaintiff's verdict. According to documents filed in the lower
court record, as of April 1999, Medicare was seeking approximately $20,000 in
benefits paid and BCBSM was seeking approximately $1,700. MCL 600.6303(4)
further states that “benefits paid or payable by a . . . corporation, or other legal
entity entitled by contract to a lien against the proceeds of a recovery by a
plaintiff in a civil action for damages, if the contractual lien has been exercised
pursuant to subsection (3)” are not a collateral source. Here, as of April 1999,
BCBSM and Medicare properly exercised their liens under the statute. The
record is not clear whether they have further exercised their lien rights since then
or whether they may do so in the future. Regardless of those considerations, the
statute does not make any provision for a situation where a lien has been
exercised, but for an amount less than the lienholder would be legally entitled to
recover. Because the statute clearly states that benefits subject to an exercised
lien do not qualify as a collateral source, and BCBSM and Medicare exercised
their liens, health insurance benefits provided by BCBSM and Medicare to
plaintiff do not constitute a collateral source under MCL 600.6303(4).
[Zdrojewski, supra at 70 (emphasis added).]
Here, defendant admits that HAP exercised a lien. This lien was arguably for a lesser
amount than it was entitled to recover. Zdrojewski instructs that in this situation, the health
insurance benefits do not constitute a collateral source under the law. Accordingly, defendant’s
argument on appeal is without merit.
VIII
Defendant claims that the trial court erred in allowing plaintiff to argue to the jury that
defendant (1) failed to review Wilson’s medical records from the previous procedure, (2) failed
to respond to Wilson’s cardiac arrest, (3) failed to hand-bag16 Wilson, (4) failed to administer an
appropriate initial dose of atropine, and (5) failed to call a Code Blue sooner. Defendant claims
that plaintiff was not entitled to argue these theories because they were not sufficiently set forth
in the NOI or Bauman’s affidavit of merit and were also not sufficiently apparent from the
discovery process. This argument is simply a rehash of the arguments set forth in sections IV
and VI of this opinion and need not be decided anew. The pre-suit notice was sufficient; plaintiff
simply refined her theories as the case progressed.
16
This term refers to manual, artificial ventilation.
-18-
Defendant also claims that plaintiff was not entitled to argue some of these theories
before the jury because the trial court had earlier ruled that the only viable theories related to the
administration of atropine and the alleged delay in calling the Code Blue. We decline to address
this issue because it was not listed as part of the statement of questions presented for appeal.
City of Lansing v Hartsuff, 213 Mich App 338, 351; 539 NW2d 781 (1995).
IX
Defendant next argues that there was no admissible causation evidence concerning the
atropine claim because (1) plaintiff admitted that Bauman was not qualified to testify regarding
the cardiac effects of atropine and (2) the trial court sustained defendant’s objection to having
Dr. Futrell offer that testimony. Defendant argues that the court should have granted her a
directed verdict on the atropine claim. Defendant’s argument is without merit. It is merely a
reiteration of part of defendant’s argument set forth in section II of this opinion, and we again
reject it.
Defendant additionally contends that the trial court failed to inquire into the scientific
bases of Bauman’s and Futrell’s testimony. See MCL 600.2955.
The day before trial, defendant’s attorney mentioned that he might have objections to
certain expert testimony, “depending on their testimony” at trial. Then, after the second day of
trial and after Dr. Futrell had offered some testimony, defendant argued that Dr. Futrell was
obligated to produce literature to support some of his medical testimony. Defendant’s attorney
stated:
And I think Your Honor has a gate keeping role with regard to keeping
evidence in or out that does not have a scientific basis.
And this witness had not done any personal research on these drugs, so he
has to look somewhere else. And we don’t have any idea where he’s looking for
the information.
Plaintiff responded that defendant had waited too long to raise such a challenge. The trial court
stated, “in the Final Pre-Trial Order and the discussions we had Thursday, there was never a
specific objection to specific portions of any expert’s testimony or the basis thereof.” The court
also stated: “The witness testified in this particular area, which []is now apparently being
challenged, that this is common knowledge within the profession. That this is well-known and
accepted.” The court stated that it had a responsibility to move the case along and that defendant
had waited too long to challenge the scientific basis for the testimony.
We find no abuse of discretion in the trial court’s ruling. See Hottman, supra at 177
(admission of evidence is reviewed for an abuse of discretion). Dr. Futrell had given a pretrial
deposition, and defendant could have raised an objection to the scientific foundation of his
testimony before the second day of trial. Dr. Futrell testified that he had been practicing for
twenty-six years, that he specialized in anesthesiology, that he had taught anesthesiology
residents. He also testified that he was a member of a committee that dealt with “safety” and the
“reduction of complications” in anesthesiology. Later, after giving some specific medical
testimony and being asked how he learned the information, he stated that it was “part and parcel”
-19-
of his training. We conclude that the trial court properly considered the lateness of the request
and the nature of Dr. Futrell’s testimony and properly exercised its discretion in declining to hold
an evidentiary hearing.
As for Bauman, the portions of the record to which defendant refers contain no request
for a hearing regarding the scientific basis of Bauman’s testimony. They reveal that defendant
simply made a brief objection with regard to “foundation,” which the trial court overruled.
Accordingly, defendant’s appellate argument that the trial court should have held a hearing is
unavailing.
X
Defendant argues that the trial court erred in granting plaintiff’s motion for costs.17 We
review this issue using the abuse-of-discretion standard. Blue Cross & Blue Shield of Michigan v
Eaton Rapids Comm Hosp, 221 Mich App 301, 308; 561 NW2d 488 (1997).
Defendant makes the bald statement that “[p]laintiff’s request for expert witness fees as
costs did not include a breakdown of charges, the hourly rate, or the tasks that went into
generating the fees.” However, defendant cites no authority indicating that these items were
necessary before costs could be awarded. As noted in Wilson v Taylor, 457 Mich 232, 243; 577
NW2d 100 (1998), quoting Mitcham v Detroit, 355 Mich 182, 203; 94 NW2d 388 (1959),
[i]t is not sufficient for a party “simply to announce a position or assert an error
and then leave it up to this Court to discover and rationalize the basis for his
claims, or unravel and elaborate for him his arguments, and then search for
authority either to sustain or reject his position.”
Defendant also states that there was no basis for awarding fees to three of the experts because
they did not testify at trial. However, MCL 600.2164, the statute dealing with expert witness
fees, does not require that an expert testify in order to receive compensation. Defendant then
states that “[p]laintiff’s remaining experts did not provide documentation to support their
exorbitant fees.” We conclude that this general, nonspecific statement is simply insufficient to
raise an issue before this Court. See Blazer Foods, Inc v Restaurant Properties, Inc, 259 Mich
App 241, 253; 673 NW2d 805 (2003) (dealing with inadequate briefing). Defendant also
contends that a hearing should have been held with regard to various expert witness fees. Once
again, defendant fails to support her argument and has therefore waived it. Wilson, supra at 243.
Defendant mentions that plaintiff was awarded $6,311.95 for photocopying and shipping
records to experts. She contends that there was no statutory authority to award costs for these
activities because “[t]here is no provision within the court rules or statute[s] permitting
recoupment of costs for photocopying and mailing records.” However, MCR 2.625(A)(1) states
that “[c]osts will be allowed to the prevailing party in an action, unless prohibited by statute or
by these rules or unless the court directs otherwise, for reasons stated in writing and filed in the
17
The court granted $97,718.23 in costs.
-20-
action.” There is no statute or court rule prohibiting “costs” from including the expenses
associated with photocopying and shipping records to experts. These expenses were, in fact,
costs incurred; as the trial court noted, “[t]hey [were] actual real costs.” At first blush, then, it
appears that the $6,311.95 was allowable. However, in JC Building Corp II v Parkhurst Homes,
Inc, 217 Mich App 421, 429; 552 NW2d 466 (1996), a party had obtained reimbursement for the
expenses associated with “certified copies of [a] criminal conviction, [a] mediation fee, and [an]
exhibit enlargement . . . .” This Court reversed, stating that “there [was] no statutory authority”
to award those particular costs. Id. The Court essentially indicated that costs are allowable only
if a statute or court rule provides for the particular type of costs at issue. Id. JC Building Corp II
is binding on us under MCR 7.215(J)(1). Therefore, we must reverse the award of $6,311.95 in
costs. Further support for this conclusion is found in Beach v State Farm Mut Auto Ins Co, 216
Mich App 612, 622; 550 NW2d 580 (1996).
Defendant next mentions that the trial court awarded reimbursement for the costs of
depositions, for a total of $9,644.55.18 Defendant contends that plaintiff failed to provide any
documentation to verify that the transcripts were filed with the clerk’s office, as required by
Rickwalt v Richfield Lakes Corp, 246 Mich App 450, 465; 633 NW2d 418 (2001). We agree.
MCL 600.2549 states:
Reasonable and actual fees paid for depositions of witnesses filed in any
clerk's office and for the certified copies of documents or papers recorded or filed
in any public office shall be allowed in the taxation of costs only if, at the trial or
when damages were assessed, the depositions were read in evidence, except for
impeachment purposes, or the documents or papers were necessarily used.
Under this plain statutory language and in accordance with Rickwalt, supra at 465, the deposition
expenses here were not recoverable as costs because there was no evidence that the deposition
transcripts were filed in a clerk’s office or read into evidence. We must reverse the award of
$9,644.55 in costs.
Defendant next argues that the trial court erred in awarding $2,249.18 for
“subpoena/service fees” and $415 for motion fees.19 Defendant contends that there was no
statutory authority for awarding the “subpoena/service fees.” We agree. Plaintiff cites no
provision allowing for these types of costs, and therefore we must reverse the award. See,
generally, JC Building Corp II, supra at 429. With regard to the $415, defendant argues that
plaintiff failed to provide documentation regarding that amount of money. We disagree.
Plaintiff attached to its bill of costs photocopies of various records supporting its request for the
$415. Defendant also argues that there is no statutory authority for recovering case-evaluation
fees as costs. The documentation indicates that the $415 included $150 for those fees. Plaintiff
18
As with the $6,311.95, the trial court allowed the $9,644.55 because it was an “actual real
cost[].”
19
The court awarded these fees because they were actual costs incurred by plaintiff.
-21-
cites no provision for allowing these case-evaluation fees as costs, and therefore we must reverse
the $150 award of costs associated with case-evaluation fees.
Defendant next argues that the trial court erred in failing to allocate costs between
defendant and Henry Ford. To support her argument, defendant cites a case that interprets the
case-evaluation court rule, MCR 2.430. As set forth in section XI of this opinion, the trial court
did not err in its interpretation of the case-evaluation court rule. Defendant was responsible for
reimbursing all allowable costs in this case involving joint-and-several liability.
XI
Defendant next asserts that the trial court erred in awarding plaintiff case-evaluation
sanctions. The case-evaluation panel had awarded plaintiff $585,000 against defendant and
$65,000 against Henry Ford. Defendant rejected the case-evaluation award. The verdict, after
the trial court’s adjustments, amounted to $812,295.20 Defendant contends that this verdict, for
purposes of deciding whether case-evaluation sanctions apply, should be apportioned according
to the percentage of fault found by the jury.21
This issue involves a question of statutory and court-rule interpretation and is thus
reviewed de novo. Marketos v American Employers Ins Co, 465 Mich 407, 412; 633 NW2d 371
(2001).
MCR 2.403(O) governs the awarding of case-evaluation sanctions. Sanctions were
appropriate here if the verdict against defendant was “more than 10 percent below the evaluation
. . . .” MCR 2.403(O)(3). In addition, “[e]xcept as provided by subrule (O)(10), in a personal
injury action . . . the verdict against a particular defendant shall not be adjusted by applying that
defendant’s proportion of fault . . . .” MCR 2.403(O)(4)(c). Given this rule, the trial court
correctly weighed the verdict against the case-evaluation award without making an adjustment
based on defendant’s relative fault.
However, defendant contends that the verdict should have been apportioned according to
MCR 2.403(O)(10), which states that in actions filed on or after March 28, 1996, “a verdict
awarding damages for personal injury . . . or wrongful death shall be adjusted for relative fault as
provided by MCL 600.6304.” We reject defendant’s argument. Indeed, MCL 600.6304(6)(a)
states that liability based on a medical malpractice claim is joint and several if the plaintiff is
found to be without fault. There were no allegations here of fault on the part of plaintiff.
Accordingly, the liability here was joint and several, and payment according to the percentage of
fault was not mandated. See MCL 600.6304(6). Under these circumstances, an apportionment
20
The judgment will be slightly higher based on our instant opinion and may be higher still after
the proceedings on remand.
21
The trial court merely ruled that “plaintiff is clearly entitled to attorney fees under the case
evaluation sanction rule.”
-22-
for purposes of applying the case-evaluation rule is inappropriate. The court did not err in
determining that plaintiff was entitled to case-evaluation sanctions from defendant.22
Defendant next argues that the amount of attorney fees awarded to plaintiff as sanctions
was excessive. The trial court, without a full evidentiary hearing, awarded attorney fees of
$231,710, based on an hourly rate of $600 and $400 for plaintiff’s two attorneys. Defendant
contends that the approved hourly rate was excessive by being two to three times the size of the
accepted, average rate for a malpractice case in the area and that use of an hourly rate to
calculate attorney fees was not the correct measure because the case was taken on a contingency
fee basis.
We review this issue for an abuse of discretion. Stallworth v Stallworth, 275 Mich App
282, 288; 738 NW2d 264 (2007). Certain criteria that a court should use for determining the
reasonableness of attorney fees are set forth in Crawley v Schick, 48 Mich App 728, 737; 211
NW2d 217 (1973):
(1) the professional standing and experience of the attorney; (2) the skill, time and
labor involved; (3) the amount in question and the results achieved;[23] (4) the
difficulty of the case; (5) the expenses incurred; and (6) the nature and length of
the professional relationship with the client.
The Crawley court acknowledged that there is no “precise formula for computing the
reasonableness of an attorney’s fee” and that the facts that should be considered are not limited
to the items mentioned above. Id. The Supreme Court agreed when it adopted the Crawley
guidelines. Wood v DAIIE, 413 Mich 573, 588; 321 NW2d 653 (1982).
In Smith v Khouri, ___ Mich ___; ___ NW2d ___; 2008 WL 2601346, 5 (2008), the
Supreme Court elaborated on the method for calculating attorney fees as case-evaluation
sanctions, stating:
We conclude that our current multi-factor approach needs some fine
tuning. We hold that a trial court should begin its analysis by determining the fee
customarily charged in the locality for similar legal services, i.e., factor 3 under
MRPC 1.5(a). In determining this number the court should use reliable surveys or
other credible evidence of the legal market. This number should be multiplied by
the reasonable number of hours expended in the case (factor 1 under MRPC 1.5[a]
and factor 2 under Wood). The number produced by this calculation should serve
as the starting point for calculating a reasonable attorney fee. We believe that
22
In response to certain arguments raised by defendant, we note that unpublished opinions are
not precedentially binding in this Court. MCR 7.215(C)(1).
23
The lead opinion in Smith v Khouri, ___ Mich ___; ___ NW2d ___; 2008 WL 2601346, 6 n 20
(2008), indicated that factor 3 is not an appropriate consideration “in determining a reasonable
attorney fee for case-evaluation sanctions.” However, this conclusion was not adopted by a
majority of the justices.
-23-
having the trial court consider these two factors first will lead to greater
consistency in awards. Thereafter, the court should consider the remaining
Wood/MRPC factors to determine whether an up or down adjustment is
appropriate. And, in order to aid appellate review, a trial court should briefly
discuss its view of the remaining factors.
The Smith Court also stated:
If a factual dispute exists over the reasonableness of the hours billed or
hourly rate claimed by the fee applicant, the party opposing the fee request is
entitled to an evidentiary hearing to challenge the applicant’s evidence and to
present any countervailing evidence. [Smith, 2008 WL 2601346, 5.]
Here, defendant requested an evidentiary hearing, but the court declined to grant “a full blown
hearing.” In light of Smith, we remand for a hearing regarding attorney fees and for a
recalculation of those fees.24
XII
Defendant next argues that the trial court erred in denying two mistrial motions.
Defendant’s argument, however, is merely a rehash of a portion of her argument set forth in
section III of this opinion. We need not revisit it here.
XIII
Defendant argues that plaintiff’s attorney and plaintiff’s witnesses unfairly prejudiced her
to such an extent that reversal is required. As noted in Reetz v Kinsman Marine Transit Co, 416
Mich 97, 102-103; 330 NW2d 638 (1982):
When reviewing an appeal asserting improper conduct of an attorney, the
appellate court should first determine whether or not the claimed error was in fact
error and, if so, whether it was harmless. If the claimed error was not harmless,
the court must then ask if the error was properly preserved by objection and
request for instruction or motion for mistrial. If the error is so preserved, then
there is a right to appellate review; if not, the court must still make one further
24
We note that the application of Smith to this case is appropriate in accordance with the factors
set forth in Adams v Department of Transportation, 253 Mich App 431, 435-440; 655 NW2d 625
(2002) (discussing prospective versus retroactive application of court opinions). We further note
that defendant’s argument that the court’s award of attorney fees was wrongly calculated because
the case was taken on a contingent-fee basis is without merit. MCR 2.403(O)(6) provides that,
when assessing sanctions, the trial judge is to calculate “a reasonable attorney fee based on a
reasonable hourly or daily rate . . . .” See also Temple v Kelel Distributing Co, 183 Mich App
326, 331-332; 454 NW2d 610 (1990).
-24-
inquiry. It must decide whether a new trial should nevertheless be ordered
because what occurred may have caused the result or played too large a part and
may have denied a party a fair trial. If the court cannot say that the result was not
affected, then a new trial may be granted.
Additionally,
an attorney's comments during trial warrant reversal where they indicate a
deliberate course of conduct aimed at preventing a fair and impartial trial or
where counsel's remarks were such as to deflect the jury's attention from the
issues involved and had a controlling influence on the verdict. [Wiley v Henry
Ford Cottage Hosp, 257 Mich App 488; 668 NW2d 402 (2003) (internal citation
and quotation marks omitted).]
The first part of defendant’s argument is merely a rehash of her argument set forth in
section III of this opinion. We again reject it. Defendant next argues that plaintiff’s attorney
improperly questioned defendant about, and Bauman improperly testified about, defendant’s
response to Wilson’s history of atrial fibrillation, “even though [p]laintiff was not claiming . . . a
breach” with regard to it. Any error in this regard was harmless; indeed, defendant concedes that
“no causation argument was ever made relative to that alleged breach.” Therefore, the jury
would not have based a finding of liability on it.
Defendant also argues that plaintiff’s attorney improperly inquired about the “bucking”
incident that occurred when Wilson was anesthetized, even though the “bucking” was not a
theory of liability. However, defendant’s citation to the record reveals that (1) one reference to
“bucking” was made by a witness without prompting by plaintiff’s attorney and (2) when the
attorney did ask about “bucking,” it was in reference to whether defendant had properly charted
the incident. As noted in section III of this opinion, and contrary to defendant’s implication on
appeal, the trial court had ruled that evidence about charting was in fact admissible; plaintiff
merely was not allowed to argue that improper charting was malpractice in itself. No improper
course of conduct is apparent with regard to the questions and testimony defendant cites
concerning charting.25
Next, defendant argues that Bauman prejudiced her by handing a juror some notes that
had fallen out of the jury box. This argument is patently without merit. Bauman stated as
follows: “The gentleman that was sitting in the back row knocked his stuff off the ledge. I
merely went over, picked it up, and set it on there; never said a word to the guy; never even
looked at him.” This simple act of picking up something that had fallen was not an improper,
prejudicial act.
25
In the context of this issue, defendant refers again to her belief that plaintiff’s attorney
admitted that Bauman was not qualified to offer any causation testimony. This is an inaccurate
representation of the record, as set forth in section II of this opinion.
-25-
Defendant next argues that plaintiff’s attorney admitted that the only two theories against
defendant related to the administration of atropine and the delay in calling the Code Blue.
Defendant contends that plaintiff’s attorney improperly argued in closing that the failure to handbag Wilson and the “bucking” incident were also evidence of negligence. Earlier, during the
motion for a directed verdict, plaintiff’s attorney mentioned that defendant breached the standard
of care by failing to call a Code Blue soon enough and by giving an inappropriate dose of
atropine. The following exchange occurred:
THE COURT: So it is really a two-pronged argument with regard to
defendant Keim[-] one[, a]tropine; two, delay in response.
MR. JOHNSON [plaintiff’s counsel]: Absolutely.
The parties and the court then continued discussing the directed-verdict motion, and the court
stated:
There is no – there can be no claimed breach here for any pre-operative
evaluation or breach of contract, and there is clearly insufficient proof that Nurse
Keim was an agent, actual or ostensible. Therefore, there can be no vicarious
liability on the part of Henry Ford Hospital based upon ostensible agency.
So the case will go to the jury on those issues as indicated by Mr. Johnson
and no more. . . .
With regard to defendant’s argument concerning hand-bagging, in counsel’s initial
reference to hand-bagging, he was simply pointing out that, under his view of the evidence,
defendant’s indication during opening arguments that the evidence would show that handbagging had taken place had never actually materialized. That was not improper. With regard to
the additional references to hand-bagging, we simply cannot conclude that counsel’s argument
resulted in undue prejudice, because counsel did not directly argue that the lack of hand-bagging
was the cause of Wilson’s death. Counsel instead argued that his client “paid” for defendant’s
failure to call a prompt Code Blue.
With regard to the “bucking” incident, counsel stated, “And to be clear we’re not
claiming that because the patient bucked, it had any [e]ffect on the outcome of his health . . . .”
Accordingly, the jury was properly informed that this was not a basis for liability, and no
prejudice is apparent.
Defendant next argues that plaintiff’s attorney improperly insinuated that defendant’s
departure from employment with Henry Ford was related to her negligence. Defendant states:
Plaintiff also asked the jury to speculate and infer negligence based upon the fact
that Keim has not worked at Henry [F]ord Hospital since the date of the incident,
even though the only testimony at trial was that Keim was scheduled to start a
new assignment at a differen[t] hospital the following week.
Plaintiff’s counsel stated the following during closing arguments:
-26-
She’s gone. Last day of work at Henry Ford, ladies and gentlemen. She was
there from March of 1999 until May 29, 2001 and she’s going to sit in that
witness stand and she’s going to look you in the face under oath and ask you to
believe that it is just a coincidence that she never set foot in that hospital ever
again. Just a coincidence. She’s gone, never to go back.
Defendant had testified that it was just a coincidence that she ceased work at Henry Ford on the
same date as the incident with Wilson; she stated that her agency had scheduled her, in advance,
for a job at a different hospital. It is clear that plaintiff’s attorney was attempting to discredit
defendant’s testimony. Defendant has set forth no reasoned argument and has cited no authority
for why that was improper. Accordingly, she has abandoned this argument for purposes of
appeal. Wilson, supra at 243. At any rate, the trial court instructed the jury as follows:
“Arguments, statements and remarks of attorneys are not evidence. And you should disregard
anything said by an attorney which is not supported by evidence, or by your own general
knowledge and experience.” We find no basis on which to reverse.
Defendant also argues that plaintiff’s attorney improperly referred to the number of
witnesses that appeared for each side and improperly referred to the fact that plaintiff’s future
damages would be reduced by a third. Once again, however, defendant cites no authority in
support of his arguments and has thus abandoned them. Id. Moreover, we note that the court
sustained defendant’s objection to the reduction-in-future-damages arguments.
Under the circumstances, we find no basis for reversal. We reject defendant’s allegation
of a pattern of blatant, prejudicial conduct on the plaintiff’s attorney.
XIV
Plaintiff argues that the trial court erred in applying the lower noneconomic damages cap
set forth in MCL 600.1483. This statute states, in part:
(1) In an action for damages alleging medical malpractice by or against a
person or party, the total amount of damages for noneconomic loss recoverable by
all plaintiffs, resulting from the negligence of all defendants, shall not exceed
$280,000.00 unless, as the result of the negligence of 1 or more of the defendants,
1 or more of the following exceptions apply as determined by the court pursuant
to section 6304, in which case damages for noneconomic loss shall not exceed
$500,000.00:
***
(b) The plaintiff has permanently impaired cognitive capacity rendering
him or her incapable of making independent, responsible life decisions and
permanently incapable of independently performing the activities of normal, daily
living.
The trial court, in applying the lower cap, stated that the injured person “must have the
impairment at issue here at the time of the filing of the lawsuit.” Plaintiff disagrees, arguing that
-27-
because Wilson had a qualifying injury before his death, the higher cap applies. We agree. This
issue involves statutory interpretation, which is reviewed de novo. Marketos, supra at 412.
The Supreme Court considered a similar issue in Shinholster v Annapolis Hosp, 471 Mich
540; 685 NW2d 275 (2004). Justices Markman and Weaver agreed with plaintiff’s interpretation
in the instant case, id. at 562, 572, while Justices Cavanagh and Kelly concurred with the result
only, id. at 572. The reasoning of Justices Markman and Weaver was adopted by this Court in
Young v Nandi, 276 Mich App 67, 75-76; 740 NW2d 508 (2007). This Court rejected an
argument parallel to that set forth by defendant in the present case, ruling that as long as it can be
shown that the deceased suffered one of the qualifying injuries before death, than the higher cap
applies in a wrongful-death case. Id. Accordingly, if Wilson did experience a qualifying injury
before death as a result of defendant’s negligence, the higher cap applies.26
The jury answered “yes” when asked the following question:
After May 29, 2001, but before his death, did Ronald Wilson have
permanently impaired cognitive capacity rendering him incapable of making
independent, responsible life decisions and permanently incapable of
independently performing the activities of normal daily living?
However, despite this finding by the jury, MCL 600.1483(1) states that the court shall make the
pertinent findings. See also Shinholster, supra at 591 (Corrigan, J.). Here, the court did not
make a decision on the issue because it concluded that Wilson’s death mandated the application
of the lower cap. Therefore, we must remand this case for further proceedings. The trial court
must determine whether Wilson suffered a qualifying injury such that the higher cap applies.
XV
Plaintiff next argues that the trial court erred in granting defendant’s motion for
remittitur. We review the trial court’s decision for an abuse of discretion. Coble v Green, 271
Mich App 382, 392; 722 NW2d 898 (2006). As mentioned earlier in this opinion, defendant
argued that the evidence supported no amount of past economic damages beyond the $314,571
recited by plaintiff’s attorney. The court ruled:
I am satisfied the record does not support recovery of more than 3 hundred
14 thousand 5 hundred and 71 dollars for past economic loss in this case. It’s
quantifiable to the penny under the circumstances of this case. So the judgment is
reduced from 5 hundred thousand to 3 hundred 14 thousand 5 hundred 71 with
regard to past economic damages.
Plaintiff argues that there was no evidence that the jury was influenced by passion or prejudice
and that the $500,000 award for past economic loss should be reinstated.
26
We reject defendant’s argument that the lower cap must apply because the “plaintiff” in this
case was the estate. See Young, supra at 72-73.
-28-
“In [evaluating] a motion for remittitur, the trial court must decide whether the jury
award was supported by the evidence.” Henry v Detroit, 234 Mich App 405, 415; 594 NW2d
107 (1999). “The trial court's inquiry is limited to objective considerations regarding the
evidence adduced and the conduct of the trial.” Weiss v Hodge, 223 Mich App 620, 637; 567
NW2d 468 (1997). As stated in Palenkas v Beaumont Hosp, 432 Mich 527, 531; 443 NW2d 354
(1989):
The trial court, having witnessed all the testimony and evidence as well as
having had the unique opportunity to evaluate the jury's reaction to the proofs and
to the individual witnesses, is in the best position to make an informed decision
regarding the excessiveness of the verdict. Accordingly, an appellate court must
accord due deference to the trial court's decision . . . .
In his closing argument, plaintiff’s attorney set forth the following as past economic
damages: $169,000 for lost wages, $21,403 for lost household services, and $124,168 for
medical bills, for a total of $314,571. Plaintiff does not argue that the evidence supported a
greater award for medical expenses or lost household services. Plaintiff focuses on the award for
lost wages, arguing that the evidence supported an amount greater than $169,000.
A vocational rehabilitation counselor testified that Wilson’s earning capacity was
$25,000 to $30,000 a year and that he did not use the upper-end figures for janitors ($50,000 to
$60,000 a year) because those figures were for the automobile industry and the witness “had no
information that [Wilson] ever applied for a job in the auto industry.” The witness also testified
that fringe benefits amount to twenty percent or twenty-five percent of a person’s salary.
Another of plaintiff’s witnesses testified that Wilson’s past job-related loss, using an annual
salary in the mid-$30,000-range, amounted to $169,000, which is the figure plaintiff’s attorney
argued to the jury. However, the witness indicated that the $169,000 represented the loss until
the date of his report and that there would be “let’s say another roughly . . . 20 thousand dollars
in past loss” by August 1, 2006.27
It is true that if the jury chose to use the upper-end salary for janitors, calculated the value
of fringe benefits, and then considered the medical expenses and the value of the lost household
services, the $500,000 award was tenable. The problem, however, is that there was simply no
evidence that Wilson would have been making the upper-end salary in the five years between his
incapacitation and the time of trial. In light of this fact, and in light of the fact that we must give
considerable deference to the trial court’s decision, Palenkas, supra 531, we cannot conclude
that the trial court erred in granting the motion for remittitur. However, we do conclude that
$20,000 should be added back to the verdict amount, based on the evidence that the $169,000
figure did not include $20,000 in additional past wage loss that would have occurred by the time
of trial.28
27
The jury rendered its verdict on July 27, 2006.
28
We do not consider defendant’s argument that remittitur should have been granted in a greater
amount because defendant did not raise the argument by way of a cross-appeal. In re Herbach
(continued…)
-29-
Affirmed in part, reversed in part, and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
/s/ Patrick M. Meter
/s/ Michael J. Talbot
/s/ Deborah A. Servitto
(…continued)
Estate, 230 Mich App 276, 284; 583 NW2d 541 (1998). Also, we reject plaintiff’s brief
argument relating to “gifts/gratuities” provided by Wilson to her; it is unclear to us how these
items mentioned by plaintiff would fall under the category of past economic losses; presumably
these items would have been purchased by Wilson using lost wages, which were already
included in the past economic losses.
-30-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
