TRENDA JONES V DETROIT MEDICAL CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
TRENDA JONES, Successor Personal
Representative and Co-Personal Representative,
BOOKER T. JONES, Co-Personal Representative,
and MARGARET A. JONES Co-Personal
Representative, of the Estate of JAMAR CORTEZ
JONES,
FOR PUBLICATION
May 20, 2010
Plaintiffs-Appellees/CrossAppellees,
v
No. 288710
Wayne Circuit Court
LC No. 03-327528-NH
DETROIT MEDICAL CENTER and SINAIGRACE HOSPITAL,
Defendants-Appellants,
and
DANNY F. WATSON, M.D., and WILLIAM M.
LEUCHTER, P.C.,
Defendants-Cross-Appellants
Before: HOEKSTRA, P.J., and BECKERING and SHAPIRO, JJ.
HOEKSTRA, P.J, (dissenting).
In this medical malpractice action, this Court granted defendants leave to appeal the trial
court’s order granting summary disposition to plaintiffs on the issue of proximate or legal cause
and denying defendants’ cross-motion for summary disposition. Because I would conclude that
reasonable persons could differ regarding whether the injuries of plaintiffs’ decedent, Jamar
Jones, were legally caused by the alleged negligence, I respectfully dissent.
In a medical malpractice action the plaintiff must establish proximate cause between the
defendant’s alleged breach of the standard of care and his or her injuries. Teal v Prasad, 283
Mich App 384, 391; 772 NW2d 57 (2009). “‘Proximate cause’ is a legal term of art that
incorporates both cause in fact and legal (or ‘proximate’) cause.” Craig v Oakwood Hosp, 471
Mich 67, 86; 684 NW2d 296 (2004). Proximate cause is generally a question for the jury.
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Lockridge v Oakwood Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). However,
“[w]hen the facts bearing upon proximate cause are not in dispute and reasonable persons could
not differ about the application of the legal concept of proximate cause to those facts, the court
determines the issue.” Paddock v Tuscola & Saginaw Bay R Co, Inc, 225 Mich App 526, 537;
571 NW2d 564 (1997).
A court must first find that the defendant’s actions were a cause in fact of the plaintiff’s
injuries before it may find that the actions of the defendant were a proximate or legal cause of the
injuries. Craig, 471 Mich at 87. Cause in fact requires that “but for” the defendant’s actions, the
plaintiff’s injuries would not have occurred. Martin v Ledingham, 282 Mich App 158, 161; 774
NW2d 328 (2009). The trial court granted summary disposition to plaintiffs on the issue of
cause in fact. Defendants did not appeal this order in their application for leave to appeal;
therefore, the issue of cause in fact is not before us. Jones v Detroit Med Ctr, unpublished order
of the Court of Appeals, entered December 30, 2008 (Docket No. 288710); see also MCR
7.205(D)(4); Detroit Free Press, Inc v Southfield, 269 Mich App 275, 290; 713 NW2d 28
(2005).
At issue is legal or proximate cause. Legal causation involves “judg[ing] whether the
plaintiff’s injuries were too insignificantly related to or too remotely effected by the defendant’s
negligence.” Davis v Thornton, 384 Mich 138, 145; 180 NW2d 11 (1970). “To find proximate
cause, it must be determined that the connection between the wrongful conduct and the injury is
of such a nature that it is socially and economically desirable to hold the wrongdoer liable.”
Helmus v Dep’t of Transp, 238 Mich App 250, 256; 604 NW2d 793 (1999). Our Supreme Court
has defined a proximate cause as “a foreseeable, natural, and probable cause of the plaintiff’s
injury and damages.” Kaiser v Allen, 480 Mich 31, 37-38; 746 NW2d 92 (2008) (quotations
omitted).
The concept of foreseeability pervades any discussion of proximate cause. See, e.g., id.;
Weymers v Khera, 454 Mich 639, 648; 563 NW2d 647 (1997) (“To establish legal cause, the
plaintiff must show that it was foreseeable that the defendant’s conduct may create a risk of harm
to the victim, . . . that the result of that conduct and intervening causes were foreseeable.”)
(quotation and alternation omitted); Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475
(1994) (“[L]egal or “proximate cause” normally involves examining the foreseeability of
consequences, and whether a defendant should be held legally responsible for such
consequences.”); Nielsen v Henry H Stevens, Inc, 368 Mich 216, 220-221; 118 NW2d 397
(1962) (“To make negligence the proximate cause of an injury . . . an ordinary prudent person
ought reasonably to have foreseen [the injury] might probably occur as the result of his negligent
act.”)
However, our Supreme Court has instructed that in a case where there is no intervening
cause, and there is none alleged in the present case, the foreseeability of the plaintiff’s injury is
not to be used as a test to determine whether proximate cause exists. McMillian v Vliet, 422
Mich 570, 576-577; 374 NW2d 679 (1985); Davis, 384 Mich at 147.
“It appears that the modern trend of judicial opinion is in favor of
eliminating foreseeable consequences as a test of proximate cause, except where
an independent, responsible, intervening cause is involved. The view is that once
it is determined that a defendant was negligent, he is to be held responsible for
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injurious consequences of his negligent act or omission which occur naturally and
directly, without reference to whether he anticipated, or reasonably might have
foreseen such consequences. . . . There is no need for discussing proximate cause
in a case where the negligence of the defendant is not established, but when his
negligence has been established, the proximate result and amount of recovery
depend upon the evidence of direct sequences, and not upon defendant’s
foresight.” [Davis, 384 Mich at 147, quoting 38 Am Jur, Negligence, §§ 58, 709,
710.]
Indeed, the Model Civil Jury Instructions define legal or proximate cause as “a natural
and probable result of the negligent conduct.” M Civ JI 15.01. The words “natural” and
“probable,” rather than legal terms of art, are words susceptible of ordinary comprehension, and
need not be defined for a jury. See People v Martin, 271 Mich App 280, 352-353; 721 NW2d
815 (2006), aff’d 482 Mich 851 (2008). Accordingly, being instructed on proximate cause,
jurors would afford the terms “natural” and “probable” their ordinary meanings. In the context
of determining proximate cause, “natural” means “in accordance with the nature of things; to be
expected,” and “probable” means “likely to occur or prove true.” Random House Webster’s
College Dictionary (1992).
In the complaint plaintiffs alleged two distinct acts of negligence. First, plaintiffs
claimed that Dr. Watson breached the applicable standard of care by prescribing tegretol based
on the limited personal medical history provided by Jamar Jones. According to plaintiffs,
Watson should not have prescribed tegretol without performing additional diagnostic tests to
confirm the preliminary diagnosis of partial complex seizure disorder. Second, plaintiffs alleged
that Watson breached the applicable standard of care by failing to inform Jones of the possibility
of an allergic reaction, the signs of an allergic reaction, and the necessity to immediately seek
medical attention for an allergic reaction.
In determining that reasonable minds could not differ that Watson’s conduct was a
proximate cause of Jones’s injuries, the majority focuses on whether the injuries were
foreseeable. For example, it reasons that, because Jones died as a result of Stevens-Johnson
syndrome, which is a known side effect of tegretol, and because Jones contracted StevensJohnson syndrome from taking tegretol, which was prescribed by Watson, the injuries were
foreseeable. Respectfully, I disagree with the approach taken by the majority. The issue is not
simply whether reasonable minds cannot differ that a straight line can be drawn from point A,
the defendant’s alleged negligence, to point F, the plaintiff’s injuries. Rather, for a plaintiff to
prevail on proximate cause at the summary disposition stage, it must be shown that reasonable
minds cannot differ that the injuries were the natural and probable consequence of the
defendant’s negligence. In other words, reasonable minds could not differ that the injuries were
“expected” and “likely to occur” or on whether the injuries were too insignificantly related or to
remotely affected by the alleged negligence, Davis, 384 Mich at 145. Further, consideration
must also be given to whether the connection between the alleged negligence and the injuries is
of such a nature that it is socially and economically desirable to hold the defendant liable.
Helmus, 238 Mich App at 256.
Reviewing the trial court’s decision de novo and the evidence in the light most favorable
to defendants, Lee v Detroit Med Ctr, 285 Mich App 51, 58-59; 775 NW2d 326 (2009), I would
conclude that this case presents issues that must be resolved at trial. It is undisputed that
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Stevens-Johnson syndrome is a known, but very rare, side effect of tegretol. One expert testified
that only one in a million of those who take tegretol develop Stevens-Johnson syndrome. In
addition, there is no claim by plaintiffs that tegretol is not an anticonvulsant commonly
prescribed for partial complex seizure disorder. Under these circumstances, I am of the opinion
that reasonable minds could differ whether Jones’s injuries were the natural and probable result
of Watson’s alleged negligence of failing to perform additional diagnostic tests to confirm the
preliminary diagnosis of partial complex seizure disorder. Admittedly, the link between
Watson’s alleged failure to warn Jones of an allergic reaction to tegretol and Jones’s injuries is
much closer than the link between the injuries and Watson’s alleged failure to confirm the
preliminary diagnosis. However, given the rare nature of Stevens-Johnson syndrome, I believe
that even on this claim it is within the province of the jury to determine whether the connection
between Watson’s alleged negligence and Jones’s injuries is of such a nature that it is desirable
to hold defendants liable. Accordingly, I would conclude that the trial court erred in granting
summary disposition to plaintiffs on the issue of proximate cause.
Defendants also argue that it was error for the trial court to deny their cross motions for
summary disposition. They argue that because Stevens-Johnson syndrome is a rare and
unpredictable side effect of tegretol, plaintiffs cannot establish that tegretol was a foreseeable,
natural, and probable cause of Jones’s death. Defendants rely primarily on Dooley v St Joseph
Mercy Hosp, unpublished opinion per curiam of the Court of Appeals, issued July 7, 1998
(Docket No. 198024). I agree with the majority that Dooley is factually distinguishable. In
addition, the record shows that although Stevens-Johnson’s syndrome is a rare side effect, it is a
known side effect. Consequently, reasonable minds could differ whether it is a natural and
probable consequence that, if a physician prescribes a medication with a known rare side effect,
a patient will suffer the side effect. Therefore, I would also conclude that defendants are not
entitled to summary disposition.
/s/ Joel P. Hoekstra
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