MARILYN CHIRILUT V WILLIAM BEAUMONT HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
MARILYN CHIRILUT and NICOLAE
CHIRILUT,
UNPUBLISHED
November 23, 2010
Plaintiffs-Appellants/CrossAppellees,
v
No. 293750
Oakland Circuit Court
LC No. 2007-087744-NH
WILLIAM BEAUMONT HOSPITAL,
Defendant-Appellee/CrossAppellant,
and
ERIN KITCHENMASTER and JENNIFER
KNIESTEADT,
Defendants.
Before: SERVITTO, P.J., and ZAHRA and DONOFRIO, JJ.
PER CURIAM.
Plaintiffs appeal as of right the trial court’s order granting summary disposition in
defendants’ favor pursuant to MCR 2.116(C)(10). Because plaintiff failed to provide reliable
expert testimony to support her position, we affirm.
On June 27, 2005, plaintiff, Marilyn Chirilut, was admitted to William Beaumont
Hospital (“Beaumont”) to undergo surgery for the clipping of a brain aneurysm. According to
plaintiff, while being prepped for the surgery, plaintiff’s1 right arm was pulled over her head by a
Beaumont employee in such a manner as to cause her shoulder to be injured. Plaintiff felt an
immediate pain during the positioning of her arm and continued to feel significant pain in her
1
“Plaintiff” shall hereafter refer to Marilyn Chirilut only, as Nicolae Chirilut’s claims are
derivative in nature.
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shoulder after the surgery. Plaintiff was discharged from Beaumont after the surgery with
instructions to follow up with physical therapy.
Plaintiff underwent several courses of physical therapy over the next 16 months, without
experiencing relief. An MRI performed on plaintiff’s shoulder in October, 2006 revealed a
partial tear in her right rotator cuff, for which plaintiff underwent surgery in January 2007.
Plaintiff thereafter filed the instant medical malpractice complaint, alleging the defendants were
negligent in her treatment and care and caused the shoulder injury at issue.
Beaumont moved for summary disposition2, alleging that plaintiff failed to provide an
expert to establish either the applicable standard of care or the proximate cause of plaintiff’s
injury. The trial court agreed that plaintiff’s purported expert failed to provide reliable expert
testimony as to proximate cause, and granted summary disposition in Beaumont’s favor. This
appeal followed.
On appeal, plaintiff contends that the trial court erred in its summary disposition
determination, given that plaintiff provided an affidavit and deposition testimony of a qualified
expert in orthopedic surgery concerning the proximate cause of plaintiff’s injury. We disagree.
We review summary disposition rulings de novo. Devillers v Auto Club Ins Ass'n, 473
Mich 562, 567; 702 NW2d 539 (2005). Summary disposition is appropriate pursuant to MCR
2.116(C)(10) when there is no issue of material fact such that the moving party is entitled to
judgment as a matter of law. Wilson v Alpena Co Rd Comm, 474 Mich 161, 166; 713 NW2d 717
(2006). When considering a motion under MCR 2.116(C)(10), a court must consider the
affidavits, pleadings, depositions, admissions, and other documentary evidence submitted by the
parties in a light most favorable to the nonmoving party to determine whether there is a genuine
issue of material fact for trial. Id.
To establish a claim of medical malpractice, a plaintiff must show: (1) the appropriate
standard of care governing the defendant's conduct at the time of the purported negligence; (2)
that the defendant breached that standard of care; (3) that the plaintiff was injured; and (4) that
the plaintiff's injuries were the proximate result of the defendant's breach of the standard of care.
MCL 600.2912a; Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). MCL
600.2912a(2), defines the applicable causation standard for medical malpractice as follows: “In
an action alleging medical malpractice, the plaintiff has the burden of proving that he or she
suffered an injury that more probably than not was proximately caused by the negligence of the
defendant or defendants.” Our Supreme Court has further explained that in order to be a
proximate cause, the negligent conduct:
must have been a cause of the plaintiff's injury and the plaintiff's injury
must have been a natural and probable result of the negligent conduct. These two
2
Plaintiff voluntarily dismissed defendants Kitchenmaster and Kniesteadt from this matter prior
to Beaumont’s motion for summary disposition.
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prongs are respectively described as ‘cause-in-fact’ and ‘legal causation.’ While
legal causation relates to the foreseeability of the consequences of the defendant's
conduct, the cause-in-fact prong generally requires showing that ‘but for’ the
defendant's actions, the plaintiff's injury would not have occurred. It is equally
well-settled that proximate causation in a malpractice claim is treated no
differently than in an ordinary negligence claim, and it is well-established that
there can be more than one proximate cause contributing to an injury. O'Neal v
St. John Hosp & Medical Center, 487 Mich 485, 490; ___ NW2d ___
(2010)(internal citations omitted).
Notably, 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), quoting 57A Am Jur 2d, Negligence, § 461, p. 442.
And, “if circumstantial evidence is relied on to establish proximate cause, the evidence must lead
to a reasonable inference of causation and not mere speculation. In addition, the causation theory
must demonstrate some basis in established fact.” Ykimoff v Foote Mem Hosp, 285 Mich App
80, 87-88; 776 NW2d 114 (2009).
Expert testimony is essential to establish a causal link between the alleged negligence and
the alleged injury in a medical malpractice case. Dykes v William Beaumont Hosp, 246 Mich
App 471, 478; 633 NW2d 440 (2001); Thomas v McPherson Community Health Ctr, 155 Mich
App 700, 705; 400 NW2d 629 (1986). The proponent of expert testimony in a medical
malpractice case has the burden of establishing that the expert is qualified and that the expert's
opinion is reliable. Clerc v Chippewa Co War Mem Hosp, 477 Mich 1067, 1067-1068, 729
NW2d 221 (2007).
The trial court, under MRE 702, has an obligation to ensure that any expert testimony
admitted at trial is reliable. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 780; 685 NW2d
391 (2004). MCL 600.2955 further directs, in part:
(1) In an action for the death of a person or for injury to a person or property, a
scientific opinion rendered by an otherwise qualified expert is not admissible
unless the court determines that the opinion is reliable and will assist the trier of
fact. In making that determination, the court shall examine the opinion and the
basis for the opinion, which basis includes the facts, technique, methodology, and
reasoning relied on by the expert, and shall consider all of the following factors:
(a) Whether the opinion and its basis have been subjected to scientific testing and
replication.
(b) Whether the opinion and its basis have been subjected to peer review
publication.
(c) The existence and maintenance of generally accepted standards governing the
application and interpretation of a methodology or technique and whether the
opinion and its basis are consistent with those standards.
(d) The known or potential error rate of the opinion and its basis.
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(e) The degree to which the opinion and its basis are generally accepted within the
relevant expert community. As used in this subdivision, “relevant expert
community” means individuals who are knowledgeable in the field of study and
are gainfully employed applying that knowledge on the free market.
(f) Whether the basis for the opinion is reliable and whether experts in that field
would rely on the same basis to reach the type of opinion being proffered.
(g) Whether the opinion or methodology is relied upon by experts outside of the
context of litigation.
In response to Beaumont’s motion for summary disposition, plaintiff provided the
affidavit and deposition testimony of its proposed expert, Dr. Brandt. In the affidavit, Dr. Brandt
swore that he was a practicing, board certified orthopedic surgeon and that when plaintiff came
to see him on January 12, 2007, she reported that she had begun having a problem with a painful
right shoulder as of June 27, 2006. According to Dr. Brandt, plaintiff advised him that on that
date, her arm was placed in an overhead position prior to a surgical procedure and she felt a
“pop” and a good deal of pain in her shoulder. Dr. Brandt indicated that his physical
examination of plaintiff revealed discomfort and an impingement upon rotation of the right
shoulder. Dr. Brandt also indicated that he reviewed plaintiff’s radiological studies, including an
October 25, 2006 MRI which showed a partial rotator cuff tear. Dr. Brandt opined that
plaintiff’s history, physical examination, and radiological studies suggest that instability in her
right shoulder occurred as a result of her arm being placed in an overhead position on June 27,
2005. The affidavit concludes with the statement that in Dr. Brandt’s opinion, “more likely than
not, the articular side partial thickness rotator cuff tear of the right shoulder that [plaintiff]
suffered occurred as a result of the right arm being taken in an abducted and overhead type
position on June 27, 2005.” Notably, however, Dr. Brandt crossed out the words “articular side
partial thickness rotator cuff tear” in the above sentence and wrote “instability” above them.
This suggests a lack of conviction on Dr. Brandt’s part that the positioning of plaintiff’s arm
prior to surgery caused the specific injury of a rotator cuff tear. There is, however, a more
troubling aspect to the affidavit.
At deposition, Dr. Brandt testified that he was led to believe he had to sign the affidavit
prepared by plaintiff’s counsel because he had been told “this could be done easily if I sign it, or
it could be done with a subpoena and make me come to court. . . if it comes down to the two of
those things, I’m going to sign this thing.” There is some uncertainty, then, as to whether the
affidavit was voluntarily signed, and whether, as a result, the affidavit was valid. See Holmes v
Michigan Capital Med Ctr, 242 Mich App 703, 711; 620 NW2d 319 (2000) (to constitute a valid
affidavit, the document must be a written statement of facts, made voluntarily, and confirmed by
oath or affirmation of the party making the statement).
True, Dr. Brandt testified that the affidavit mirrors the comments he made in his own
office records and reports, and that his opinion is indeed that it is more likely than not that
plaintiff’s injury occurred as a result of her arm being abducted in an overhead position on June
27, 2005. Dr. Brandt also stated that he has not seen anything that is inconsistent with the
history plaintiff gave him. Importantly, however, Dr. Brandt also testified that he did not look at
defendant’s charts or records concerning the surgery at issue. Dr. Brandt additionally testified
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that he was not made aware of plaintiff’s medical history concerning degenerative or arthritic
changes in her shoulders, was not made aware of what plaintiff’s physical therapy entailed, or
that she had been treating with several other doctors and, in fact, had reviewed almost nothing
but his own records. When asked whether he would defer to another orthopedic surgeon who
had reviewed all of the records and deposition as to the causal relationship between the position
of plaintiff prior to the surgery at issue and her injured shoulder, Dr. Brandt replied that if there
was more information that would shed some light on the issue, he would “certainly defer to that
person.”
It appears from the above testimony that the sum whole forming the basis for Dr.
Brandt’s causation opinion were his examination of plaintiff a year and a half after her aneurysm
surgery, review of an MRI of plaintiff’s right shoulder taken by another doctor 14 months after
the surgery, and plaintiff’s self-report of how she believed her rotator cuff was torn. Having
admitted to not reviewing any of plaintiff’s relevant medical records, particularly those
concerning the surgery, and not being aware of all of her relevant medical history and treatment,
Dr. Brandt has shown no foundation for an opinion regarding the causal link between the
claimed surgery incident and plaintiff’s shoulder injury. Indeed, Dr. Brandt unequivocally
testified that he would defer to another orthopedic surgeon who had reviewed all of the pertinent
records and information, thereby suggesting Dr. Brandt’s acknowledgment of a lack of
information and uncertainty concerning causation.
This is not a situation where the credibility of witnesses is at issue, thus requiring
submission to a factfinder. No one has challenged Dr. Brandt’s credibility. Instead, it is
abundantly clear that Dr. Brandt simply did not review the relevant records and information
necessary to form a reliable, rather than speculative, opinion. As our Supreme Court has
explained, speculation “is simply an explanation consistent with known facts or conditions, but
not deducible from them as a reasonable inference.” Skinner v Square D Co, 445 Mich 153, 164;
516 NW2d 475 (1994). Given the limited information upon which Dr. Brandt relied in rendering
his opinion, his opinion is, while perhaps consistent with the explanation provided him by
plaintiff, not deducible strictly from her explanation.
Finally, Dr. Brandt testified that he does not consider himself an expert. Dr. Brandt
further testified that he had never served as an expert witness in a medical malpractice lawsuit,
that he had not been asked to testify at trial in the instant matter, and that his understanding of his
role was simply “to give my knowledge of what [plaintiff] told me and what I did and what the
findings were.” Given that Dr. Brandt does not consider himself an expert and, even assuming
he would be qualified to testify as an expert, the basis for his opinion concerning causation is
unreliable, the trial court did not err in granting summary disposition in Beaumont’s favor. Dr.
Brandt was plaintiff's only provided expert witness, and the evidence he provided did not
establish “but for” causation.
On cross appeal, Beaumont contends that plaintiff failed to present a qualified expert as
to the applicable standard of care, such that summary disposition was appropriate in its favor on
this basis. According to Beaumont, while it raised this argument in the trial court, the trial court
did not address this issue, but instead focused on Beaumont’s alternative basis for summary
disposition. Because we find that the trial court appropriately granted summary disposition in
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defendant’s favor based upon a lack of reliable expert testimony as to causation, we need not
consider the issue presented in defendant’s cross-appeal.
Affirmed.
/s/ Deborah A. Servitto
/s/ Brian K. Zahra
/s/ Pat M. Donofrio
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