ESTATE OF BURR NEEDHAM V MERCY MEMORIAL NURSING CENTER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
ALAN A. MAY, Personal Representative of the
ESTATE of BURR NEEDHAM,
UNPUBLISHED
January 20, 2009
Plaintiff-Appellant,
v
MERCY MEMORIAL NURSING CENTER, a/k/a
MONROE COMMUNITY HEALTH SERVICES,
ARUN GUPTA, M.D., WILLINE BELOW, LPN,
RETA OBLINGER, LPN, S. SCOTT, LPN, TINA
DALE, LPN, and JULIE CEBINA, LPN,
No. 280174
Monroe Circuit Court
LC No. 05-019213-NH
Defendants-Appellees.
Before: Murphy, P.J., and Sawyer and Whitbeck, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s orders granting summary disposition in favor
of defendants in this action arising out of the death of nursing home patient Burr Needham.
Plaintiff Alan May, personal representative of Mr. Needham's estate, alleged that the decedent
died from acute morphine intoxication. Various causes of action were pursued and all
summarily dismissed by the trial court, which ruled, in part, that plaintiff failed to establish a
genuine issue of material fact regarding whether morphine intoxication was the cause of death.
We affirm in part, reverse in part, and remand for further proceedings.
Decedent fractured his hip on April 24, 2002. He received non-surgical treatment from
the University of Michigan Hospital and was transferred on April 26, 2002, to defendant Mercy
Memorial Nursing Center (Mercy Memorial) for rehabilitation. Decedent had not been a
candidate for surgical treatment due to existing health problems, which included, in part,
diabetes, coronary artery disease, Parkinson’s disease, and orthostatic hypotension. Although
decedent was alert and oriented upon admission to Mercy Memorial, his health began to decline
fairly rapidly, and he died on May 2, 2002.
When decedent was admitted to Mercy Memorial, he was considered “full code,”
meaning that the nursing home should take all possible steps to revive him in an emergency
situation. He did not, however, sign the paperwork indicating his resuscitation preferences;
rather, “full code” was a default status. Decedent was treated with narcotic medications to ease
his pain upon admission to Mercy Memorial and throughout his entire stay. As decedent’s health
-1-
began to decline, defendant Dr. Arun Gupta1 recommended that decedent be transferred to a
hospital for testing and diagnosis. At around this time, decedent’s wife, Betty Needham, began
making healthcare decisions for decedent under a durable power of attorney (DPOA). Mrs.
Needham refused to have decedent transferred to a hospital setting for testing, stating that as a
Jehovah’s Witness, decedent would not want additional medical procedures to be undertaken.
Mrs. Needham, while refusing to consent to the decedent's transfer to a hospital, did
permit the nursing home to continue administering pain relief medications to her husband. Mrs.
Needham claimed that she was never fully informed about the seriousness of her husband’s
condition. Decedent’s condition kept deteriorating, he continued to receive pain medications in
the nursing home, and when his health worsened further on May 1, 2002, Dr. Gupta again
recommended transfer to a hospital. The doctor stated that decedent would be transferred unless
Mrs. Needham produced the DPOA paperwork. Mrs. Needham then brought in the DPOA and
continued to refuse to allow for decedent’s transfer. Dr. Gupta prescribed additional pain
medications for decedent. Burr Needham died on May 2, 2002, while at Mercy Memorial.
Plaintiff filed the instant lawsuit under Michigan’s Wrongful Death Act (WDA), MCL
600.2922, alleging that decedent "died on May 2, 2002, at 2:45 p.m. of acute morphine
intoxication." The complaint named Mercy Memorial, Dr. Gupta, and five licensed practical
nurses (LPNs) who provided care for decedent as defendants. Count I of the complaint alleged
that Mercy Memorial was liable under a theory of direct institutional liability pursuant to, in part,
42 USC 1395 et seq., 42 CFR 483.1 et seq., MCL 333.21701 et seq., and 2007 AC, R 325.20101
et seq., which are state and federal statutes and regulations governing the operation of nursing
homes. Count II of the complaint alleged that Mercy Memorial was vicariously liable for the
negligent acts of its nursing staff. Count III of the complaint alleged negligence by Dr. Gupta.
Count IV sought to hold Mercy Memorial vicariously liable for Dr. Gupta's alleged negligence.
Count V alleged negligence on the part of the individual nurses. Count VI alleged battery, with
plaintiff asserting that one or more of the defendant nurses injected the decedent with morphine
in an amount and at a time not ordered by decedent's doctor, that morphine was not requested by
decedent or Mrs. Needham, and that the administration of morphine was an intentional, harmful,
and offensive touching of Mr. Needham.
Defendants moved for partial summary disposition with respect to the battery claim,
arguing that there was no evidence of an “injection of morphine;” rather, oral morphine was used
to relief the decedent’s pain. Defendants also filed a motion to strike plaintiff’s claim for
economic damages in regard to lost business and trust income and lost household services, which
issue arose when plaintiff’s economic expert calculated damages for such losses.2 Additionally,
defendants moved for partial summary disposition on plaintiff’s claim against Mercy Memorial
1
Dr. Gupta was decedent’s attending physician and the medical director at Mercy Memorial.
2
Defendants later filed a supplemental brief in which they argued that “loss of services” is not an
item of damages permitted under the WDA, that “loss of services” is already compensated for as
part of any recovery for loss of society and companionship, and that the “loss of services” claim
should be dismissed because there was no supporting evidence.
-2-
alleging direct institutional liability. Defendants argued that the institutional liability count was
simply a straightforward claim of medical malpractice unsupported by expert testimony.
Defendants later filed an additional motion for summary disposition, arguing that plaintiffs failed
to create a factual dispute on the issue of causation, where the documentary evidence failed to
show that the decedent died of a morphine overdose. This motion also made a request to strike
the testimony of plaintiff’s expert, Dr. Werner Spitz, on the issue of causation because it was
speculative.
At the hearing on the multiple motions filed by defendants, the parties first stipulated to
withdrawal of the claim regarding lost trust income, the trial court ruled that a claim for lost
business income could be pursued, and the court found that the claim for loss of household
services must be struck because the WDA made no provision for such damages. Further, the
trial court ruled that the direct institutional liability claim failed because plaintiff did not submit
any expert documentary evidence necessary to create a genuine issue of fact on the claim. With
respect to the battery claim, defense counsel contended that there was absolutely no evidence of
an intentional overdose of morphine. Plaintiff’s counsel responded by first indicating that,
through discovery, information was obtained that supported a reformulation of the battery claim,
and counsel sought permission from the court to amend the complaint with regard to the battery
count.3 The trial court stated that the case did not present an “angel-of-death scenario, where a
healthcare provider seeing someone suffering decides to take the powers into their own hands
and suggests that someone might be better off dead . . . and [then] administers some lethal dose
of some type of drug[.]” The court thus found that the battery claim as alleged failed. The trial
court also found plaintiff’s new battery theory to be novel but dismissal was still appropriate
because there was no proof of an intentional administration of morphine that would constitute a
battery, because Mrs. Needham had the authority to make necessary healthcare decisions, and
because defendants rightfully abided by those wishes. The trial court concluded that there would
be no point in allowing amendment of the complaint, given that the new battery theory would
fail as a matter of law. Finally, the parties argued the motion concerning causation and the
striking of Dr. Spitz’s deposition testimony on proximate cause. The court took those matters
under advisement.
3
In responding to defendants’ motion for summary disposition as to the battery claim, plaintiff
challenged the validity of Mrs. Needham’s DPOA, argued that the claim was not one of medical
malpractice, and asserted as follows:
Based on the legally insufficient, and otherwise factually ill informed
wishes of Betty Needham, Dr. Gupta put Burr Needham on Roxanol (an oral form
of morphine) to end his pain – forever. Burr Needham himself did not consent to
this end of life decision, and he certainly did not consent to being given
“Roxanol” to end his pain – forever. Such unrequested and otherwise illegal
treatment constitutes an assault and battery by operation of law.
-3-
In a subsequent written opinion, the trial court ruled that plaintiff's expert failed "to
establish but-for causation because he testified that therapeutic levels of the drug 'probably
would not have killed decedent,' that he had 'no way to know' what the morphine levels were at
the time of decedent's death and that he could not say more likely than not, the decedent
possessed a higher than normal therapeutic morphine blood level at the time of his death." The
court further commented that plaintiff's expert "clearly acknowledges that he cannot testify that
it's more likely than not that morphine killed decedent because there is no way to know how
much morphine was in decedent's blood stream," and therefore, plaintiff was unable to satisfy the
requisite standard for proximate cause.
Orders on all of the court’s rulings were entered, and one of the orders indicated that the
court also granted the motion to preclude speculative proximate cause testimony by Dr. Spitz.
On appeal, plaintiff argues that the orders granting summary disposition violated
plaintiff’s due process rights, that, given the evidence, the court erred in concluding that plaintiff
was unable to establish “but for” causation, that the court erred in dismissing the battery claim
where the decedent did not consent to the administration of morphine to end his pain forever,
that the court erred in dismissing the direct institutional liability claim where there was
supporting expert testimony of state and federal violations of nursing home laws, and that the
court erred in striking a damage claim for loss of services where such a claim is permitted by the
WDA.
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Constitutional issues are also
reviewed de novo on appeal. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765
(2004).4
4
MCR 2.116(C)(10) is implicated in this case. MCR 2.116(C)(10) provides for summary
disposition where there is no genuine issue regarding any material fact, and the moving party is
entitled to judgment or partial judgment as a matter of law. A trial court may grant a motion for
summary disposition under MCR 2.116(C)(10) if the pleadings, affidavits, and other
documentary evidence, when viewed in a light most favorable to the nonmovant, show that there
is no genuine issue with respect to any material fact. Quinto v Cross & Peters Co, 451 Mich
358, 362; 547 NW2d 314 (1996), citing MCR 2.116(G)(5). Initially, the moving party has the
burden of supporting its position with documentary evidence, and, if so supported, the burden
then shifts to the opposing party to establish the existence of a genuine issue of disputed fact.
Quinto, supra at 362; see also MCR 2.116(G)(3) and (4). "Where the burden of proof at trial on
a dispositive issue rests on a nonmoving party, the nonmoving party may not rely on mere
allegations or denials in [the] pleadings, but must go beyond the pleadings to set forth specific
facts showing that a genuine issue of material fact exists." Quinto, supra at 362. Where the
opposing party fails to present documentary evidence establishing the existence of a material
factual dispute, the motion is properly granted. Id. at 363. "A genuine issue of material fact
exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open
an issue upon which reasonable minds might differ." West v Gen Motors Corp, 469 Mich 177,
183; 665 NW2d 468 (2003). Circumstantial evidence may present a factual issue. Bergen v
Baker, 264 Mich App 376, 387; 691 NW2d 770 (2004). Speculation and conjecture are
(continued…)
-4-
We first address the issue concerning causation. The Legislature has dictated the
causation standard to be applied in medical malpractice cases. MCL 600.2912a(2) provides that
“[i]n 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 Robins v Garg (On Remand), 276 Mich App 351, 362; 741 NW2d
49 (2007), this Court, after quoting MCL 600.2912a(2), discussed the general principles
regarding causation in the context of a medical malpractice action:
“Proximate cause” is a term of art that encompasses both cause in fact and
legal cause. Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).
“Generally, an act or omission is a cause in fact of an injury only if the injury
could not have occurred without (or ‘but for’) that act or omission.” Id. at 87.
Cause in fact may be established by circumstantial evidence, but the
circumstantial evidence must not be speculative and must support a reasonable
inference of causation. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488,
496; 668 NW2d 402 (2003). “‘All that is necessary is that the proof amount to a
reasonable likelihood of probability rather than a possibility. The evidence need
not negate all other possible causes, but such evidence must exclude other
reasonable hypotheses with a fair amount of certainty.’” Skinner v Square D Co,
445 Mich 153, 166; 516 NW2d 475 (1994) . . . . Summary disposition is not
appropriate when the plaintiff offers evidence that shows “that it is more likely
than not that, but for 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).
If there is reliance on circumstantial evidence, it must facilitate a reasonable inference of
causation, not mere speculation, and the causation theory must have some basis in established
fact. Skinner, supra at 164. Quoting Kaminski v Grand Trunk W R Co, 347 Mich 417, 422; 79
NW2d 899 (1956), the Skinner Court stated:
“As a theory of causation, a conjecture is simply an explanation consistent
with known facts or conditions, but not deducible from them as a reasonable
inference. There may be 2 or more plausible explanations as to how an event
happened or what produced it; yet, if the evidence is without selective application
to any 1 of them, they remain conjectures only. On the other hand, if there is
evidence which points to any 1 theory of causation, indicating a logical sequence
of cause and effect, then there is a juridical basis for such a determination,
notwithstanding the existence of other plausible theories with or without support
in the evidence.” [Skinner, supra at 164.]
(…continued)
insufficient, but an opposing party need not rebut every possible theory that the evidence could
support. Ghaffari v Turner Construction Co (On Remand), 268 Mich App 460, 464; 708 NW2d
448 (2005). A court may not make factual findings or weigh credibility. Skinner v Square D Co,
445 Mich 153, 161; 516 NW2d 475 (1994). A court may only consider substantively admissible
evidence actually proffered relative to a motion for summary disposition under MCR
2.116(C)(10). Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999).
-5-
The circumstantial evidence must afford a reliable basis from which reasonable minds
could infer that, more probably than not, but for the [wrong] no injury would have occurred. Id.
at 171.
At the heart of the trial court’s ruling on causation and defendants’ position below and on
appeal is the deposition testimony of plaintiff’s expert Dr. Werner Spitz that he could not
determine the decedent’s blood morphine level at the time of death on the basis of two blood
draws and the toxicology report. Therefore, according to the court and defendants, any assertion
that the decedent died of acute morphine intoxication is mere speculation, entitling defendants to
summary disposition.
Dr. Spitz testified that the decedent died of acute morphine intoxication and that he had a
level of morphine in his system that went beyond normal therapeutic levels. However, Spitz did
state that there was no way for him to calculate from the blood draws what decedent's blood
morphine level was at the time of death. Dr. Spitz explained that because of redistribution and
pooling, morphine levels can vary on the basis of where blood is drawn from the body, and he
"d[i]dn't know where this blood was taken from." Two blood samples had been taken from the
body five days after death and revealed a blood morphine level "five times higher than normal."
At a point in the deposition, Dr. Spitz stated that he could not say that it was more likely than not
that the decedent's morphine level was higher than a normal therapeutic level at the time of
death. However, Spitz's entire testimony must be examined and evaluated, and the apparent
concession is taken out of context because it was part of the discussion regarding the blood
draws and their revelations.
Dr. Spitz’s deposition covered two days; the two days were separated by nearly three
months. During the interim, Dr. Spitz had the opportunity to examine seven microscopic slides
of autopsy tissues, coming from the heart (2), the lungs (3), the liver (1), and the kidneys (1).
With respect to the heart tissues, Dr. Spitz testified that there was no evidence of an acute
myocardial infarction. In regard to the lung tissues, Spitz indicated that the slides revealed mild
emphysema, a small bit of pneumonia, and, significantly, a severe or advanced pulmonary
edema. Dr. Spitz further testified that the liver looked good and that the kidneys showed some
arteriosclerosis. With respect to chronic diseases identifiable from the microscopic slides, Spitz
pointed to the emphysema and arteriosclerosis. The autopsy results also revealed coronary artery
disease, which Spitz preferred to call “stenosis of a coronary artery,” and which stenosis was 70
percent. Dr. Spitz stated that it was his original opinion, and it remained his opinion, that the
death certificate, which listed acute morphine intoxication as the cause of death, was accurate.
Spitz then proceeded to testify:
If morphine [here Roxanol] is withdrawn as the cause of death, then I have
some difficulty to explain why this individual died. Because he does not have any
other condition that would acutely – would explain the acute mode or the acute
way in which he died.
He did not die of the pneumonia. People don’t die of that degree of
pneumonia. Some people would go to work with that, and that includes me, with
that degree of pneumonia. But he did die of respiratory problems, or with
-6-
respiratory problems occasioned by filling up the air sacs with proteinaceous
fluid.
And sure, the alveoli have to be filled with air and not with protein. So
that is called edema. And it is my opinion that that edema was brought on, not by
any congestive heart failure, but by morphine intoxication.
***
The conditions that he had, lumping them together as arteriosclerosis and
hypertension, both involving the cardiovascular system, may have rendered his
body more susceptible to other cause of death.
But if you take a situation of morphine intoxication as well into the mix,
then people die of morphine intoxication . . . .
***
I mean, it [morphine] pushed him over the cliff. . . . Pushing somebody
over the cliff by causing this degree of lung edema, with no other real good cause
– That’s exactly what I said today, really, if you think of it – with arteriosclerosis,
hypertension in an individual, predisposing him to die from a morphine overdose.
Normally he may need – he may need a – maybe a somewhat larger dose
to cause him to die. But he died of morphine intoxication. There’s no question in
my mind.
***
[In response to a question asking what other causes, aside from morphine
or narcotics, could result in an acute pulmonary edema] Congestive heart failure
will cause pulmonary edema. It is rare that congestive heart failure will cause
pulmonary edema to the extent of 1,000 grams each lung. While morphine is
commonly known to cause that.
I can tell you that I’ve done hundreds, maybe several thousands of
autopsies on heroin victims. . . . And these people invariably had lungs just like
that.
***
[The morphine levels determined at the postmortem examination] are
consistent with a level that would cause the manifestation that they did and
sudden death. You see, there are – there’s more to it than just a level, too. There
is the rapidity of death. There is what led up to the death with the developing
edema. There is the fact that there is no other cause that would bring this
combination of facts about.
-7-
So all this has to be considered. You cannot just base an opinion only on a
level. Unless that level is some astronomical level, you are stuck with
interpreting a situation where you need to take everything into account. And
everything – taking everything into account, you have to consider the clinical
manifestations and the level. The level is consistent. But in view of the clinical
manifestations and the findings at the autopsy, as a whole, not just the toxicology,
I think you have to concede that there is really no other way this man could have
died.
When questioned whether pulmonary edema could have been the cause of death instead
of morphine intoxication, Dr. Spitz explained that an edema is a result and not a cause; it must be
brought on by something or some event, such as morphine intoxication. Spitz further explained
that there is no such thing as a normal level of morphine, that there is a therapeutic level, that the
decedent had beyond a therapeutic level of morphine, that a therapeutic level probably would not
have killed the decedent, and that it was impossible to tell what the decedent’s actual morphine
level was at the time of death. Dr. Spitz stated that he had to presume that the blood morphine
level was beyond a therapeutic level; however, he then clarified, “But in view of everything I
know of this case, that’s the only legitimate conclusion I can come to.” At this point in his
testimony, Dr. Spitz explained why he could not determine the decedent’s actual morphine level
at the time of death, stating:
Literature will tell you that there is [a] possibility of redistribution, and
that the morphine level would have been lower at one time in certain places, and
may be augmented in some places, and other places it went down. I don’t know
where this blood was taken from, so I cannot really tell you. Although they did
take it from two places, and in both places it’s close to each other. As I’ve stated
many times, you need – it needs to be – this case, as any case, needs to be
considered together with the clinical manifestations, the autopsy findings, the
microscopic slides and the toxicology; not any one of these individually. And
when you do that, I think that’s the only conclusion you can come to.
This testimony related directly to the blood draws and toxicology report and the
impossibility, according to Spitz, to derive an accurate blood morphine level at the time of death
from those sources, but this did not preclude Spitz from opining that the decedent died of acute
morphine intoxication. At that juncture in his testimony, Dr. Spitz indicated that he could not
say that it was more likely than not that the decedent’s morphine level was higher than a normal
therapeutic level at the time of death. But the doctor was clearly speaking only in terms of the
blood draws and toxicology report. Defendants are thus taking the testimony entirely out of
context and simply ignoring the other testimony provided by Dr. Spitz.
By analogy, one could accurately conclude that a person is intoxicated through the intake
of liquor, even absent a blood or breathalyzer test, if there is evidence of slurred speech, the
heavy smell of alcohol on the person’s breath, walking difficulties, an inability to follow simple
directions, loss of balance, a concession that the person had been drinking alcohol, and the
-8-
presence of nearby empty liquor containers; no other conclusion would be reasonable under a
totality of the circumstances. Dr. Spitz could not place reliance on the blood draws and
toxicology report; however, he could conclude, from a totality of the circumstances, that the
decedent died from acute morphine intoxication.5
Additionally, another expert, Dr. Karl Steinberg, explained that the basis of his
conclusion that the decedent was given too much narcotic pain medication was, in part, the
decedent's level of alertness and his cognitive or mental status.6 And the medical records
certainly established that the decedent was receiving substantial amounts of pain medications.
Moreover, the assistant medical examiner listed "(pending) acute morphine intoxication"
as the cause of death. The postmortem report prepared by the chief medical examiner concluded
that the decedent "died of acute morphine intoxication," and that "[t]he blood morphine level at
the time of death was about five times larger than the average therapeutic level."7 A narrative
summary of the postmortem examination did not suggest any other possible cause of death.
We conclude that an issue of fact exists regarding whether it is more probable than not
that the decedent died of acute morphine intoxication. The fact that Dr. Spitz could not state that
blood samples taken from the body five days after death established a higher than therapeutic
level of morphine does not mean that plaintiff lacked the ability to prove death by morphine
intoxication. Other indices of morphine intoxication, as testified to by Dr. Spitz, facilitated a
reasonable inference of causation, not mere speculation, and they created, minimally, a factual
dispute on causation. Spitz testified that there was only one plausible physiological explanation
as to why the death occurred, and the circumstantial evidence afforded a reliable basis from
which reasonable minds could infer that, more probable than not, death was caused by morphine
intoxication. And the postmortem report, which indicated a blood morphine level five times
above a normal therapeutic level at the time of death, cannot be ignored and discounted for
purposes of a motion under MCR 2.116(C)(10), and the report reflected direct evidence of
morphine intoxication. Accordingly, the trial court erred with respect to its ruling on causation,
and it was error to strike Dr. Spitz's proximate cause testimony.
5
Although plaintiff’s counsel suggested at oral argument that providing any amount of morphine
to the decedent caused the death, this position is not supported by the record. Dr. Spitz and Dr.
Jack Kaufman did indicate that administering any morphine to the decedent was improper and
negligent given the decedent’s physical condition and the fact that he was already receiving the
powerful pain medication Fentanyl via a three-day Duragesic patch. However, we are concerned
with causation and the documentary evidence did not show a causal link between the morphine
and decedent’s death until the amount of morphine reached a higher than therapeutic level for
Mr. Needham.
6
We also note that there were inaccuracies in the records regarding the total amount of morphine
that was dispensed.
7
Although defendants asserted at oral argument that the medical examiner had recanted with
regard to some of his original findings at the time of the autopsy for purposes of other
proceedings examining the nursing home death, supporting documentary evidence was not
presented in this litigation.
-9-
In regard to the battery claim, plaintiff proceeds with his argument as if the trial court
allowed him to amend the battery count such that the claim is now predicated on the delivery of
oral doses of morphine at lethal levels without valid consent. Amendment was not allowed when
plaintiff's counsel orally moved to amend the battery claim at the hearing on the motions for
summary disposition. The only battery claim properly before us for consideration is the claim as
alleged in the first amended complaint, and there is no evidence of an injection of morphine as
alleged therein, nor is plaintiff still claiming that the nurses administered the morphine in an
amount and at a time not ordered by Dr. Gupta. Plaintiff's appellate brief presents an argument
that summary disposition was improper because the new battery theory is viable under the law
and is supported by the evidence. But that argument cannot be considered unless plaintiff is
permitted to amend the complaint so that it conforms to the argument with respect to battery.
However, plaintiff makes no argument in his main brief on appeal that the trial court erred in
denying his effort to amend the complaint and no analysis is provided regarding the legal
concepts applicable to amendment of pleadings. Therefore, reversal is unwarranted.
Moreover, the reformulated battery claim is not sustainable. Medical treatment
administered without a patient's consent can constitute a tortious battery. In re Rosebush, 195
Mich App 675, 680-681; 491 NW2d 633 (1992). A battery is the willful and harmful or
offensive touching of another person resulting from an act intended to cause contact, VanVorous
v Burmeister, 262 Mich App 467, 483; 687 NW2d 132 (2004), but there is no battery if the
recipient consented to the contact, People v Starks, 473 Mich 227, 234; 701 NW2d 136 (2005).
The evidence reflects that both the decedent and Mrs. Needham consented to the administration
of pain medication to comfort the decedent. There was, however, no evidence that consent was
given by either decedent or Mrs. Needham to administer narcotics to the decedent in order to, as
framed by plaintiff, end decedent's pain forever, assuming that consent on such a matter was
even legally recognizable. Plaintiff's claim goes beyond a mere battery allegation and suggests a
homicide, but, as stated by the trial court, there was no evidence whatsoever that anyone
intentionally administered a lethal dose of morphine. And that being the case, all that is left is
possible negligent administration of a lethal dose of morphine, which would constitute a standard
medical malpractice action. Therefore, the battery claim would be subsumed by the medical
malpractice claim. No claim for battery exists in this case.
With respect to plaintiff’s claim of direct institutional liability, some of the alleged
breaches of duty are clearly claims premised on traditional principles of vicarious liability tied to
acts or omissions of the defendant nurses and Dr. Gupta and already encompassed in the other
vicarious liability counts, e.g., “harmfully neglecting Burr Needham through excessive
administration of narcotic drugs . . . .” However, some of the alleged breaches of duty concern
Mercy Memorial’s policies and procedures and supervision of staff, e.g., “failing to train and/or
supervise its nursing staff” and “failing to limit access to controlled substances.” In Cox v Flint
Bd of Hosp Managers, 467 Mich 1, 11; 651 NW2d 356 (2002), our Supreme Court stated:
A hospital may be 1) directly liable for malpractice, through claims of
negligence in supervision of staff physicians as well as selection and retention of
medical staff, or 2) vicariously liable for the negligence of its agents. Here,
plaintiffs have not advanced claims of direct negligence on the part of defendant
hospital. Therefore, defendant's liability must rest on a theory of vicarious
-10-
liability. Vicarious liability is “indirect responsibility imposed by operation of
law.” [Footnote and citations omitted.]8
In support of the above proposition, the Cox Court relied, in part, on Theophelis v
Lansing Gen Hosp, 430 Mich 473, 478 n 3; 424 NW2d 478 (1988) (opinion by GRIFFIN, J.).
Justice Griffin stated in Theophelis, id.:
Our use of the term, “independent negligence,” is intended only for the
purpose of indentifying those claims by plaintiffs which were directed to hospital
policies and procedures as opposed to those claims which rested directly upon the
negligent acts of Nurse Palmer and Dr. Gilmore and are referred to as “vicarious
liability” claims. Obviously, if claims directed to hospital policies and procedures
involved acts of directors, officers or agents of the hospital during the scope of
corporate activity, any liability of the hospital for such acts would also be
“vicarious.” Plaintiffs did not name the particular officers or agents of the hospital
in their complaint.
Thus, under Michigan law, there does exist a recognizable claim for direct institutional
liability or independent negligence that can be pursued against a medical facility. The alleged
breaches of duty contained in plaintiff’s complaint under this count are clearly claims that raise
“questions of medical judgment beyond the realm of common knowledge and experience.”
Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 422; 684 NW2d 864 (2004). And they
certainly pertain to events occurring during the course of a professional relationship. Id.
Accordingly, plaintiff was required to support the direct institutional liability claim with expert
testimony and evidence.
The direct institutional liability count lists 13 alleged breaches of duty, and one of those
allegations is actually broken down into 5 separate and distinct alleged breaches. The expansive
count relies, in part, on alleged violations of state and federal statutes and regulations governing
the operation of nursing homes. In plaintiff’s brief on appeal, he sets forth some of the language
in the statutes and regulations. On the issue of evidentiary support, plaintiff first refers to the
“extensive breaches by Dr. Gupta (and the facility itself)” as testified to by Dr. Jack Kaufman,
and plaintiff then simply cites numerous page numbers relative to Kaufman’s deposition
transcript. Plaintiff fails to point out the relevant testimony from these pages, fails to explain
how the testimony relates to direct institutional liability as opposed to being a basis for
traditional vicarious liability, and fails to explain how the testimony specifically supports one of
the 18 alleged breaches of duty. Plaintiff essentially leaves it up to us to unravel his claims and
to connect all of the proverbial dots. We choose not to entertain the invitation. “‘It is not enough
for an appellant in his brief simply to announce a position or assert an error and then leave it up
8
In Bronson v Sisters of Mercy Health Corp, 175 Mich App 647, 650; 438 NW2d 276 (1989), a
case cited in Cox, this Court noted that “[a] review of plaintiff’s complaint reveals that plaintiff
seeks to impose liability on defendant hospital for independent acts of negligence committed by
the hospital; plaintiff does not seek to hold defendant vicariously liable for [the doctor’s] alleged
malpractice.”
-11-
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.’” Mudge v
Macomb Co, 458 Mich 87, 105; 580 NW2d 845 (1998), quoting Mitcham v Detroit, 355 Mich
182, 203; 94 NW2d 388 (1959).
Plaintiff next refers to Dr. Steinberg’s criticism of “the entire staff for failing to handle
the situation appropriately,” which is then followed by three pages of quoted excerpts from
Steinberg’s deposition. The quoted materials revealed Dr. Steinberg’s opinions that a discussion
resulting in a patient being given a DNR status should be documented, that the whole situation
was handled negligently by staff as to honoring the decedent’s wishes given his status as “full
code,” and that medical personnel breached a standard of care by not taking the time to fully
discuss all of the decedent’s health issues with Mrs. Needham, but instead relied on the DPOA
and Mrs. Needham’s uninformed directive. Steinberg further opined that there were indications
that the decedent desired lifesaving measures to be taken and never refused testing and treatment,
that matters should have been more fully discussed with the decedent, and that it was suspicious
that the paperwork showing the decedent as “full code” had language later added indicating that
he was “full code” because “he refused to sign.” Finally, Steinberg opined that medical
personnel failed to fully disclose the severity of decedent’s illness and his prognosis if left
untreated, that decedent was given too much narcotic medication, and that the nurses were
unfamiliar with narcotics.
Again, plaintiff does not take the time to explain why this testimony relates to direct
institutional liability as opposed to being a basis for traditional vicarious liability, and plaintiff
fails to expressly link the testimony to one of the alleged 18 alleged breaches of duty. The
testimony could have a possible bearing on the allegations that Mercy Memorial failed “to train
and/or supervise its nursing staff so that the nursing standard of practice was complied with in
the care of Burr Needham,” that Mercy Memorial failed to notify Mrs. Needham of the lifethreatening change in decedent’s condition, and on the allegations pertaining to the
administration and handling of narcotics. But to the extent that any of these allegations actually
relate to direct institutional liability, Steinberg’s testimony did not connect the alleged negligent
acts or omissions to Mercy Memorial policies, procedures, training, oversight, commands,
directives, or to the nursing home's administrators. Indeed, when asked whether a nursing home
worker who dealt with decedent was not properly trained, Steinberg responded:
No. I’m not specifically saying that. She did – I just think that – I don’t
know anything about her training. I just think the way this whole situation was
handled – not just by her and the other social-service people, but basically by
everybody – was negligent. . . . [Emphasis added.]
The matter of direct institutional liability is insufficiently briefed with respect to
Steinberg’s testimony, and even if we are accurately unraveling plaintiff’s argument, the
testimony was insufficient to survive summary disposition.
Plaintiff next refers to the deposition testimony of his nursing expert, Laura Conklin, and
her “allegations of misconduct.” But we are then simply directed to 24 pages of deposition
transcript without explanation and reasoning. Therefore, the matter is insufficiently briefed for
the same reasons given above with regard to Dr. Kaufman’s testimony.
-12-
Finally, with respect to the direct institutional liability claim, plaintiff quotes from
Conklin’s affidavit of merit. Assuming that we can even consider an affidavit of merit for
purposes of determining whether an issue of fact exists under MCR 2.116(C)(10), the affidavit
merely provides a laundry list of allegedly negligent acts committed by the nursing staff without
tying them to Mercy Memorial policies, procedures, training, oversight, commands, directives,
or to the nursing home's administrators. Accordingly, we find no error in the summary dismissal
of plaintiff’s claim of direct institutional liability.
We next address plaintiff’s argument that the trial court erred in striking a damage claim
for loss of household services. The trial court found that the WDA does not provide for such
damages. Defendants agree with the trial court, but they then proceed to additionally argue that
damages for loss of society and companionship, which are expressly included in the WDA’s list
of recoverable damages, “necessarily include[] compensation for ‘loss of services’ performed by
family members for each other.” Defendants are apparently of the position that damages for loss
of services are not recoverable, but if they are recoverable, such damages would fall under the
heading of society and companionship, thereby constituting noneconomic damages subject to the
medical malpractice cap in MCL 600.1483.
MCL 600.2922(6) provides:
In every action under this section, the court or jury may award damages as
the court or jury shall consider fair and equitable, under all the circumstances
including reasonable medical, hospital, funeral, and burial expenses for which the
estate is liable; reasonable compensation for the pain and suffering, while
conscious, undergone by the deceased during the period intervening between the
time of the injury and death; and damages for the loss of financial support and the
loss of the society and companionship of the deceased. . . . .
This Court recently answered the questions that we are currently confronting. In Thorn v
Mercy Mem Hosp Corp, __ Mich App __; __ NW2d __ (2008), issued December 11, 2008
(Docket No. 277935), slip op at 13, this Court held:
We find that the statutory language of MCL 600.2922(6) does not
preclude plaintiff’s claim for loss of service damages. Further, we reject
defendants’ assertion that loss of service is merely a component of a claim for the
loss of society and companionship or the equivalent of a claim for loss of
consortium. As a result, plaintiff’s claim for loss of service comprises an
economic damage, which is not subject to the damages cap of MCL 600.1483.
Accordingly, the trial court here erred in ruling that damages for loss of services were not
recoverable under the WDA. Although the documentary evidence suggests that the decedent did
not provide any actual household services, it is not appropriate under MCR 2.116(C) to
summarily dismiss an element or single component of damages given our reversal and remand
-13-
on the underlying cause of action of medical malpractice. Plaintiff is free to submit evidence of
such damages, if they exist, at trial.9
Finally, with respect to plaintiff's due process argument, the argument is merely a
contention that the trial court deprived plaintiff of due process because it ignored facts in
rendering its rulings. We have addressed all the concerns raised in the due process argument in
the context of analyzing the other issues on appeal, and no further discussion is necessary.
Affirmed in part, reversed in part, and remanded in part for further proceedings consistent
with this opinion. No costs are awarded under MCR 7.219, no party having fully prevailed. We
do not retain jurisdiction.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ William C. Whitbeck
9
We do, however, reject plaintiff’s argument suggesting that recovery of damages for loss of
services is appropriate even absent proof that decedent actually provided services. The standard
jury instruction allows a jury to award damages for loss of services and other losses “to the
extent [the jury] find[s] they have been proved by the evidence.” M Civ JI 45.02. Contrary to
plaintiff’s argument, the case of Zolton v Rotter, 321 Mich 1; 32 NW2d 30 (1948), does not in
any manner support his position.
-14-
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.