HEATHER SWANSON V PORT HURON HOSP
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STATE OF MICHIGAN
COURT OF APPEALS
HEATHER SWANSON,
UNPUBLISHED
June 2, 2009
Plaintiff-Appellee,
v
PORT HURON HOSPITAL, a/k/a PORT HURON
HOSPITAL MEDICAL GROUP,
No. 275404
St. Clair Circuit Court
LC No. 04-002438-NH
Defendant,
and
JEANNIE L. ROWE, D.O. and BLUEWATER
OBSTETRICS AND GYNECOLOGY, P.C.,
Defendants-Appellants.
HEATHER SWANSON,
Plaintiff-Appellant,
v
PORT HURON HOSPITAL, a/k/a PORT HURON
HOSPITAL MEDICAL GROUP,
No. 278491
St. Clair Circuit Court
LC No. 04-002438-NH
Defendant,
and
JEANNIE L. ROWE, D.O. and BLUEWATER
OBSTETRICS AND GYNECOLOGY, P.C.,
Defendants-Appellees.
Before: Whitbeck, P.J., and O’Connell and Owens, JJ.
PER CURIAM.
This is a consolidated appeal arising out of a medical malpractice action filed by plaintiff
Heather Swanson against defendants Port Huron Hospital (a/k/a Port Huron Hospital Medical
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Group), Jeannie L. Rowe, D.O., and Bluewater Obstetrics and Gynecology, P.C. (Bluewater).
Swanson alleged, in part, that Dr. Rowe’s negligence during a laparoscopic procedure to remove
an ovarian cyst resulted in a puncture wound to Swanson’s aorta and then a scar around her naval
as a result of a laparotomy performed to repair the aorta. In Docket No. 275404, Dr. Rowe and
Bluewater appeal as of right the jury trial judgment in Swanson’s favor. In Docket No. 278491,
Swanson appeals as of right the trial court’s award of attorney fees and costs. The trial court
dismissed Port Huron Hospital from the proceedings below, thus it is not a party to either appeal.
We reverse.
I. Basic Facts And Procedural History
On April 9, 2002, 16-year-old Swanson went to the Port Huron Hospital emergency
room, complaining of severe lower right quadrant pain. An ultrasound showed a 4-centimeter
ovarian cyst, and the hospital admitted her. The attending physician requested an OB/GYN
consultation with Dr. Rowe. Dr. Rowe then diagnosed Swanson with a right ovarian cyst.
Swanson was discharged from the hospital on April 11, 2002, even though her pain was
allegedly continuous and she was experiencing nausea and vomiting.
On April 12, 2002, Swanson returned to see Dr. Rowe, still complaining of severe lower
right quadrant pain, nausea, and vomiting. A pelvic ultrasound showed that the cyst had grown
to 5.6 centimeters. Dr. Rowe recommended a laparoscopy and drainage of a right ovarian cyst.
According to Dr. Rowe, in discussing the procedure with Swanson and her mother, Dr. Rowe
informed them that risks involved in such treatment included “the risk of possible injury to
bowel, blood vessels or other pelvic organs . . . .” Swanson’s mother admitted that Dr. Rowe
told her that damage to blood vessels could occur, but she claimed that she thought that meant
“little vessels,” not the “main aorta.” Later that same day, the hospital readmitted Swanson and
scheduled her for a laparoscopy with possible right ovarian cystectomy and possible
appendectomy later that same evening. Before the procedure, Swanson’s mother signed an
“Authorization, Release and Waiver” form and an informed consent form.
At 6:30 p.m. on April 12, 2002, Dr. Rowe performed the laparoscopy. The laparoscopy
was initiated by inserting a veress needle through the umbilical fold into the abdomen. More
specifically, the veress needle was inserted in a caudle fashion, at an angle towards the feet,
while Dr. Rowe lifted up on the abdomen with a towel clip. Once the veress needle was inserted
into the abdomen, CO2 gas was passed through the needle into the abdomen to insufflate the
abdomen. According to Dr. Rowe, the veress needle was then withdrawn from the abdomen and
a trocar inserted at an angle towards the feet, through which a camera was used to observe the
ovarian cyst. At that time, Dr. Rowe observed some bright red blood in the peritoneal cavity.
Dr. Rowe was not immediately able to locate the exact source of bleeding, but it appeared to
stop, so she proceeded to drain the cyst.
While Dr. Rowe was exiting the surgical site, she observed a large “pulsating” mass (that
is, a retroperitoneal hematoma). Dr. Rowe consulted a general surgeon, who immediately
recommended a vascular consultation with Dr. Khattab Joseph. With Dr. Rowe’s assistance, Dr.
Joseph then performed an exploratory laparotomy. According to Dr. Rowe, during this second
procedure, an incision was made approximately 2 inches above the umbilicus, extending around
to 3 inches below the umbilicus. Dr. Joseph and Dr. Rowe identified a “very small” puncture,
“like a needle puncture,” at the distal portion of the aorta, at the bifurcation of the aorta. Dr.
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Joseph repaired the puncture with two “very fine sutures.” Dr. Joseph opined that the veress
needle caused the puncture, due to its small size. Dr. Rowe also opined that the puncture was
caused when she inserted the veress needle. Dr. Rowe then closed the incision without further
complication.
On April 18, 2002, the hospital discharged Swanson. Swanson alleged that at the time of
discharge, she had continued lower right quadrant pain, a significant amount of gas pain, and
strain with bowel movements. Dr. Rowe testified that Swanson was discharged with medication
to treat nausea and pain, but she was in stable condition.
In April 2004, Swanson initiated this lawsuit by mailing a notice of intent to defendants.
The notice of intent alleged that the applicable standard of care required defendants to, inter alia,
“appropriately evaluate the aforementioned patient, including but not limited to, assessing the
abdomen and abdominal structures in order to determine the appropriate amount of force needed
to perform a laparoscopy;” “appropriately identify the location of the aorta and other anatomical
structures prior to placing the veress needle . . . [and/or] the trocar . . . ;” and “protect vital
structures, such as the aorta from surgical injury.” With respect to breach, the notice of intent
merely stated, “The applicable Standard of Practice and Care was breached as evidenced by the
failure to do those things set forth in Section II above.” Regarding what actions should have
been taken to comply with the standard of care, the notice of intent simply stated, “The action
that should have been taken to achieve compliance with the Standard of Care should have been
those things set forth in Section II above.” And with respect to proximate cause, the notice of
intent stated:
As a result of the defendants’ gross and blatant negligence, Heather Swanson
sustained injury to the main artery in her body, necessitating a surgical repair that
rendered this teenager permanently scarred and disfigured, along with intermittent
diarrhea and abdominal pain.
Swanson filed her complaint and affidavit of merit in October 2004. And during the
September 2006 jury trial, Swanson’s primary theory of liability was premised on allegations
that Dr. Rowe inserted the veress needle and/or trocar at the wrong angle into the abdomen and
used too much force during the insertion. Following deliberations, the jury returned a verdict in
Swanson’s favor, finding that Swanson sustained an injury, that defendants were negligent, and
that defendants’ negligence was the proximate cause of Swanson’s injury.
Defendants then moved for a judgment notwithstanding the verdict (JNOV), arguing, in
pertinent part, that Swanson’s notice of intent failed to comply with MCL 600.2912b. The trial
court denied defendants’ motion.
II. Notice Of Intent
A. Standard Of Review
Defendants argue that the trial court clearly erred by denying their motion for JNOV
because Swanson’s notice of intent failed to sufficiently specify proximate cause by failing to
detail the manner in which defendants’ alleged breach of the standard of care factually and
foreseeably caused injury to Swanson’s aorta.
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This Court reviews de novo a trial court’s decision on a motion for JNOV.1 Whether a
notice of intent complies with the requirements of MCL 600.2912b is a question of law that this
Court reviews de novo.2
B. Proximate Cause
“Before commencing an action alleging medical malpractice against a health professional
or health facility, a medical-malpractice claimant must provide each health professional and
health facility written notice of intent to file a claim.”3 “The notice must include several
statutorily enumerated statements about the intended suit.”4 And among the statutorily
enumerated statements required to appear in the notice of intent is a statement providing 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.”5 “In order to satisfy this requirement, the notice must
contain specific allegations regarding the conduct of the named defendants.”6 “[I]t is not
sufficient to state that defendants’ negligence caused the alleged harm. Rather, the claimant
must describe the manner in which the actions or lack thereof caused the complained of injury.”7
In Miller v Malik, this Court concluded that the plaintiff’s notice of intent was
insufficient to meet the requirement of MCL 600.2912b(4)(e).8 In the plaintiff’s notice of intent
in that case, after enumerating the various duties to which the various defendants were allegedly
required to have adhered, the plaintiff simply stated that the defendants had thereby breached the
applicable standards of care because “‘[t]here was a failure to do all things listed in paragraph II
above.’”9 Regarding what actions the defendants should have taken to comply with the standard
of care, the plaintiff merely stated, “‘See paragraph II above.’”10 And with respect to proximate
cause, the plaintiff asserted only, “‘Had the standard of care been complied with in a timely and
appropriate manner, [the patient]’s deep vein thrombosis [DVT] would have been avoided and/or
timely diagnosed and treated, thereby avoiding his demise from pulmonary embolism.’”11
Relying on the Michigan Supreme Court’s decisions in Roberts v Mecosta Co Gen Hosp (After
1
Sniecinski v Blue Cross and Blue Shield of Mich, 469 Mich 124, 131; 666 NW2d 186 (2003).
2
Jackson v Detroit Medical Ctr, 278 Mich App 532, 545; 753 NW2d 635 (2008).
3
Bush v Shabahang, 278 Mich App 703, 709; 753 NW2d 271 (2008), citing MCL 600.2912b(1).
4
Id., citing MCL 600.2912b(4).
5
MCL 600.2912b(4)(e); see Bush, supra at 714.
6
Bush, supra at 714.
7
Miller v Malik, 280 Mich App 687, 695-696; 760 NW2d 818 (2008), citing Roberts v Mecosta
Co Gen Hosp (After Remand), 470 Mich 679, 699-700 n 16; 684 NW2d 711 (2004) and Boodt v
Borgess Medical Ctr, 481 Mich 558, 560; 751 NW2d 44 (2008).
8
Id. at 697-699.
9
Id. at 696-697.
10
Id. at 697.
11
Id.
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Remand) and Boodt v Borgess, this Court then noted that “[a]lthough [the] plaintiff stated that
the DVT and [the patient]’s subsequent death would have been avoided if the standard of care
had been followed, nowhere did she state how any defendant failed to prevent, diagnose, or treat
the DVT or pulmonary embolism.”12
The reader is left to wonder whether [the] plaintiff is alleging that the DVT could
have been prevented, a diagnosis of the DVT could have been made in time to
avoid the pulmonary embolism, or the pulmonary embolism could have been
diagnosed or treated in time to avoid [the patient]’s death. [The] [p]laintiff
identified many duties in the standard of care portion of the notice of intent, but
she failed to describe the manner in which any failure on the part of any defendant
to perform any of these duties caused [the patient]’s DVT, pulmonary embolism,
or death.[13]
Accordingly, this Court concluded that the notice of intent was not sufficiently stated to put the
defendants on statutory notice of the nature of the claim.14
Here, the notice of intent alleged that the applicable standard of care required defendants
to, inter alia, “appropriately evaluate [Swanson], including but not limited to, assessing the
abdomen and abdominal structures in order to determine the appropriate amount of force needed
to perform a laparoscopy;” “appropriately identify the location of the aorta and other anatomical
structures prior to placing the veress needle . . . [and/or] the trocar . . . ;” and “protect vital
structures, such as the aorta from surgical injury.” With respect to breach, Swanson’s notice of
intent merely stated, “The applicable Standard of Practice and Care was breached as evidenced
by the failure to do those things set forth in Section II above.” Regarding what actions should
have been taken to comply with the standard of care, the notice of intent simply stated, “The
action that should have been taken to achieve compliance with the Standard of Care should have
been those things set forth in Section II above.” And with respect to proximate cause, the notice
of intent stated:
As a result of the defendants’ gross and blatant negligence, Heather Swanson
sustained injury to the main artery in her body, necessitating a surgical repair that
rendered this teenager permanently scarred and disfigured, along with intermittent
diarrhea and abdominal pain.
Swanson’s notice of intent is very similar in its deficiencies to the notice of intent in
Miller. The notice of intent here was similarly inadequate to meet the requirement of MCL
600.2912b(4)(e). Here, although Swanson stated that “defendants’ gross and blatant negligence”
caused “injury to the main artery in her body,” nowhere did she state how the defendants were
negligent other than by breaching the enumerated standards of care. In other words, there is no
indication in the notice of intent how defendants caused or could have avoided the injury to
12
Id. (emphasis added).
13
Id. (internal citation omitted).
14
Id. at 699.
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Swanson’s artery. Like in Miller, Swanson did identify certain duties in the standard of care
portion of the notice of intent, but she failed to describe the manner in which any failure on the
part of defendants to perform any of these duties caused Swanson’s injury.
For example, although Swanson asserted that defendants had a duty to appropriately
evaluate Swanson, including “assessing the abdomen and abdominal structures in order to
determine the appropriate amount of force needed to perform a laparoscopy,” Swanson never
explained how determining the appropriate amount of force would have prevented injury to the
aorta, nor did she allege that Dr. Rowe actually used anything other than the appropriate amount
of force. Similarly, Swanson did not explain how identifying “the location of the aorta and other
anatomical structures” would have prevented injury to the aorta. Further, Swanson failed to
explain how Dr. Rowe was supposed to “protect vital structures, such as the aorta from surgical
injury.”
Thus, “Although the instant notice of intent may conceivably have apprised [defendants]
of the nature and gravamen of [Swanson’s] allegations, this is not the statutory standard; §
2912b(4)(e) requires something more.”15 The mere correlation between alleged malpractice and
an injury is insufficient to show proximate cause.16 We therefore conclude that the notice of
intent was not sufficiently stated to put the defendants on statutorily sufficient notice of the
nature of the claim.
Accordingly, we conclude that the trial court erred in denying defendants’ motion for
JNOV. Swanson’s notice of intent failed to sufficiently specify proximate cause by not detailing
the manner in which defendants’ alleged breach of the standard of care factually and foreseeably
caused injury to Swanson’s aorta. Because Swanson’s notice of intent was deficient, her claim
was never properly commenced, and she was never authorized to proceed with filing a complaint
and affidavit of merit.17 “‘MCL 600.2912b places the burden of complying with the notice of
intent requirements on the plaintiff and does not place a reciprocal duty on the part of the
defendant to challenge any deficiencies in the notice before the complaint is filed.’”18 Because
this issue is dispositive, we need not address the parties’ remaining arguments.
We reverse on the basis of the defective notice of intent and remand for entry of an order
vacating the verdict and judgment against defendants. We do not retain jurisdiction.
Defendants, being the prevailing party, may tax costs pursuant to MCR 7.219.
/s/ William C. Whitbeck
/s/ Donald S. Owens
15
Boodt, supra at 560-561.
16
Craig v Oakwood Hosp, 471 Mich 67, 86-88; 684 NW2d 296 (2004).
17
Boodt, supra at 562-563.
18
Gulley-Reaves v Baciewicz, 260 Mich App 478, 679 NW2d 98 (2004), quoting Roberts v
Mecosta Co Gen Hosp, 466 Mich 57, 59; 642 NW2d 663 (2002).
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