DONNA YANKOVIAK V STEVEN HUDER
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STATE OF MICHIGAN
COURT OF APPEALS
DONNA YANKOVIAK, as Legal Guardian of
JOSEPH YANKOVIAK,
UNPUBLISHED
January 15, 2008
Plaintiff-Appellant,
v
No. 268368
Emmet Circuit Court
LC No. 03-007558-NI
STEVEN HUDER, M.D., GREAT LAKES
NEUROLOGY, P.C., and NORTHERN
MICHIGAN HOSPITAL,
Defendants-Appellees.
Before: Kelly, P.J., and Cavanagh and O’Connell, JJ.
PER CURIAM.
In this medical malpractice case, plaintiff appeals as of right from the jury verdict of no
cause of action. We affirm.
I. Basic Facts
Plaintiff is married to Joseph Yankoviak. James Shirilla, M.D., was Joseph’s family
doctor in Petoskey and Joseph went to him in July 2000, complaining of neck pain and dizziness
after playing baseball. Shirilla testified that he concluded that Joseph “may have become dizzy
and lightheaded because he had not eaten all day, played a vigorous game of baseball and might
have become hypoglycemic[,]” and so he recommended that Joseph “eat a snack before playing
baseball in the morning, to drink lots of fluid before and during the game, to make sure he was
well hydrated.” Shirilla next saw Joseph in September 2000. Shirilla testified that Joseph was
showing “frontal lobe dysfunction” and “was not the same person that [he] had seen on the
previous visit.” Shirilla ordered a blood test, a CAT scan, and an EEG. He then referred Joseph
to defendant Steven Huder, M.D., a neurologist.
Huder is an independent physician, employed by defendant Great Lakes Neurology. He
is not an employee of defendant Northern Michigan Hospital (NMH). Over a three-week period,
Huder ordered numerous tests including an EEG, a CT scan, a MRI, and a cerebral angiogram.
Joseph was also treated with Solu-Medrol/steroids to rule out vasculitis. The testing and
treatment were performed at NMH although Joseph was never admitted as a patient. Eventually,
Huder sent Joseph to the Cleveland Clinic, where a blood clot in his sinus was diagnosed and
surgery was performed.
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In her complaint, plaintiff alleged that the applicable standard of care was violated when
the blood clot was not timely discovered and treated. She further alleged that as a result, Joseph
suffered a debilitating stroke and brain damage that have permanently impaired his ability to
function as an independent adult. Prior to trial, the trial court granted summary disposition to
NMH finding that neither Shirilla nor Huder was an agent of NMH. It further found that there
was no evidence of any direct negligence on the part of NMH and denied plaintiff’s motion to
amend her complaint.
II. Summary Disposition
Plaintiff first argues that the trial court erred in granting summary disposition to NMH.
She asserts that Huder was acting as an agent of the hospital, either directly, or through Shirilla
as an agent of the hospital. We disagree. Under the common law, agency is established based
upon the relations of the parties as they exist under either agreement or by their acts and
fundamental to that is the right of the principal to control the agent. St Clair Intermediate School
Dist v Intermediate Educ Ass’n, 458 Mich 540, 557-558; 581 NW2d 707 (1998).
A motion for summary disposition is reviewed de novo on appeal. Dressel v Ameribank,
468 Mich 557, 561; 664 NW2d 151 (2003). A motion for summary disposition should be
granted under MCR 2.116(C)(10) when, “[e]xcept as to the amount of damages, there is no
genuine issue as to any material fact, and the moving party is entitled to judgment or partial
judgment as a matter of law.” MCR 2.116(C)(10). Such a motion therefore tests whether there
is factual support for a claim or whether it instead can be decided as a matter of law. Scalise v
Boy Scouts of America, 265 Mich App 1, 10; 692 NW2d 858 (2005). “When deciding a motion
for summary disposition under subrule C(10), a court must consider the pleadings, affidavits,
depositions, admissions, and other documentary evidence submitted in the light most favorable
to the nonmoving party.” Id. The motion must be supported by documentary evidence, and
“[a]ll reasonable inferences are to be drawn in favor of the nonmovant.” Id.
Plaintiff first asserts that Shirilla’s equivocation, in his deposition taken before trial,
about when he was employed by NMH created a question of fact. However, Shirilla’s official
employment records from NMH were entered into evidence, and they clearly showed that he was
not employed by the hospital during the relevant timeframe. Plaintiff failed to produce any
evidence to contradict or bring into question the veracity of those employment records.
Plaintiff alternately argues that Huder was a direct agent of the hospital because of his
involvement with the hospital as the Director of NMH’s Stroke Program and as an officer on
NMH’s Medical Executive Committee. But no evidence was presented that Joseph was either
admitted to or treated by the hospital’s stroke program. And, plaintiff presented no evidence or
authority to suggest Huder’s involvement with the executive committee had anything to do with
his outpatient treatment of Joseph.
The trial court did not err in granting summary disposition.
III. Amendment to the Complaint
Plaintiff argues that the trial court erred by granting summary disposition to NMH on
plaintiff’s claims of direct negligence regarding Joseph’s care. However, a review of the record
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indicates that the trial court did not grant summary disposition on plaintiff’s claim of direct
negligence. Rather, the trial court denied as futile plaintiff’s motion to amend her complaint to
add the claim of direct negligence. We find that the trial court properly denied plaintiff’s
motion. The grant or denial of a motion for leave to amend pleadings is reviewed for an abuse of
discretion. Titan Ins Co v North Pointe Ins Co, 270 Mich App 339, 346; 715 NW2d 324 (2006).
No allegations were made that Joseph was either admitted to NMH or that any of the tests
performed were done negligently. Instead, plaintiff claims that NMH had a duty to review and
supervise his treatment because he had various tests done within the hospital. Plaintiff claims
that this duty extends to ensuring that, based upon the test results, proper follow-up treatment is
provided. We find plaintiff’s argument to be without merit.
In support of her argument, plaintiff cites Hamburger v Henry Ford Hosp, 91 Mich App
580, 587; 284 NW2d 155 (1979).1 But Hamburger only provides that a hospital is liable when a
patient, admitted to that hospital, is injured after being negligently handled by a volunteer at that
hospital. Id. at 587-589. The other cases cited only indicate that “[h]ospitals are liable for want
of ordinary care toward their patients.” Bivens v Detroit Osteopathic Hosp, 77 Mich App 478,
487-488; 258 NW2d 527 (1977), rev’d on other grounds 403 Mich 820 (1978). None of the
cases cited by plaintiff provide support for her contention that hospitals owe a duty beyond that
of ordinary care. Moreover, the cases only stand for the proposition that hospitals must provide
care and monitoring for patients of a hospital while they are admitted. See Duckett v North
Detroit Gen Hosp, 84 Mich App 426, 436; 269 NW2d 626 (1978) (hospitals must provide
continuing daily care to all patients admitted regardless of whether a patient has his or her own
independent physician).
Plaintiff also relies on MCL 333.21513(a),2 MCL 333.21521,3 and 1999 AC, R 325.10274
in support of her contention that hospitals are responsible for follow-up treatment indicated by
1
Plaintiff also cites a number of out-of-state-cases, which are not binding on this Court. Ammex,
Inc v Dep’t of Treasury, 273 Mich App 623, 640 n 15; 732 NW2d 116 (2007).
2
Section 21513(a) provides that “[t]he owner, operator, and governing body of a hospital
licensed under this article . . . [a]re responsible for all phases of the operation of the hospital,
selection of the medical staff, and quality of care rendered in the hospital.”
3
Section 21521 provides, “A hospital shall meet the minimum standards and rules authorized by
this article and shall endeavor to carry out practices that will further protect the public health and
safety, prevent the spread of disease, alleviate pain and disability, and prevent premature death.”
4
The administrative rule provides in pertinent part as follows:
(1) All persons admitted to a hospital shall be under the continuing daily
care of a physician licensed to practice in Michigan.
***
(b) There shall be a written hospital policy denoting when
consultation should be held. Consultation shall be recorded.
(continued…)
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testing done within a hospital. Plaintiff’s reliance is misplaced. None of these statutes or
regulation creates a private cause of action. Indeed, in Fisher v WA Foote Mem Hosp, 261 Mich
App 727, 730; 683 NW2d 248 (2004), this Court held that MCL 333.21513(e) specifically does
not provide a private cause of action. Further, there is nothing to suggest that any of these
provisions would extend a duty to a hospital to the extent claimed by plaintiff based solely on
testing being done to patients not otherwise admitted to the hospital. At most, they suggest the
same duty set forth in case law above, i.e., that hospitals owe a duty of care to patients admitted
or being administered to while they are in the hospital. The trial court did not err in denying
plaintiff’s motion to amend her complaint.
IV. Jury Instructions
Plaintiff next contends that she is entitled to a new trial because of the trial court’s refusal
to give seven special jury instructions. We disagree. Whether a requested jury instruction is
accurate and applicable based on a legal issue is a question of law, Hilgendorf v St John Hosp &
Medical Ctr Corp, 245 Mich App 670, 694-695; 630 NW2d 356 (2001), which is reviewed de
novo, Brown v Loveman, 260 Mich App 576, 591; 680 NW2d 432 (2004).
Pertinent portions of the standard Michigan Civil Jury Instructions must be given in each
action in which they are applicable, accurately state the law, and are requested by a party. MCR
2.516(D)(2). “When the standard jury instructions do not adequately cover an area, the trial
court is obligated to give additional instructions when requested, if the supplemental instructions
properly inform the jury of the applicable law and are supported by the evidence.” Bouverette v
Westinghouse Electric Corp, 245 Mich App 391, 401-402; 628 NW2d 86 (2001).
“Generally, a trial court may give an instruction not covered by the
standard instructions as long as the instruction accurately states the law and is
understandable, concise, conversational, and nonargumentative. Supplemental
instructions need not be given if they would add nothing to an otherwise balanced
and fair jury charge nor enhance the ability of the jury to decide the case
intelligently, fairly, and impartially.” [Novi v Woodson, 251 Mich App 614, 630;
651 NW2d 448 (2002), quoting Central Cartage Co v Fewless, 232 Mich App
517, 528; 591 NW2d 422 (1998) (citations omitted by Fewless Court); see also
MCR 2.516(D)(4).]
“[T]here is no error requiring reversal if, on balance, the theories of the parties and the applicable
law were adequately and fairly presented to the jury.” Murdock v Higgins, 454 Mich 46, 59; 559
NW2d 639 (1997).
In ruling that the seven requested jury instructions would not be given to the jury, the trial
court stated:
(…continued)
***
(4) The hospital shall employ professional and auxiliary personnel to give
patients necessary services. . . .
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. . . instructions are not to be a vehicle for advocacy, that is for the attorneys to
argue.
The standard jury instructions in this case, and in particular, the court
would refer to standard instruction 3001 [sic], professional negligence or
malpractice, 5001 [sic], on damages, and 1501 [sic], defining proximate cause, all
sets [sic] forth accurately and adequately the applicable law.
They present the law in a fair and balanced fashion. . . . the proposed
special instructions fail to accurately state the law or do so in a fashion that is
somewhat argumentative.
After reviewing the record, we find no error requiring reversal. The subjects of plaintiff’s
first three requested special jury instructions—the standard of care and due diligence—were
already covered by M Civ JI 30.01, the standard instruction regarding the standard of care. The
subject of plaintiff’s proposed fourth instruction, proximate cause, was adequately and fairly
covered by M Civ JI 15.01, which defines proximate cause. Moreover, the proposed fourth
instruction was argumentative and slanted, given the use of the word “tortfeaser.” Because there
were no allegations that any of the care following Huder’s treatment was negligent, there was no
reason to provide a jury instruction regarding the negligence of subsequent treatment. As the
court observed, “Special instruction number four might be appropriate if there was some issue . .
. about subsequent treatment having been negligent . . . , but there is no such . . . evidence in this
case.” Plaintiff’s fifth requested instruction—regarding the standard of care—simply restated the
general standard of care, and it was adequately covered by M Civ JI 30.03, the standard
instruction regarding the burden of proof in malpractice cases. The sixth requested special jury
instruction was argumentative in that it directly stated that Huder had a duty to promptly and
accurately diagnose Joseph’s ailment. However, doctors have a duty to follow the appropriate
standard of care, and whether this duty includes a duty to promptly and accurately diagnose is for
the jury to decide. Further, the proposed instruction includes mention of a “substantial factor,”
which is not defined and is not part of the legal standard. Plaintiff’s seventh requested special
jury instruction addressed a physician’s use of “all scientific facilities” without explaining the
meaning of that concept.
Plaintiff’s proposed special instructions proposed were argumentative—some more than
others—and often did not accurately reflect the applicable law. To the extent that the requested
instructions accurately reflected the law, they did not add anything to the standard jury
instructions given by the trial court. Thus, the trial court was not obligated to use them, and it
did not err by failing to do so. Woodson, supra at 630; Bouverette, supra at 401-402.
V. Defense Counsel Memo
Finally, plaintiff claims that the trial court committed error requiring reversal when it
prevented plaintiff from entering into evidence part of a report prepared by Huder’s defense
counsel regarding a conversation with M.A. Angileri, M.D. We disagree. A trial court’s
decision whether to admit evidence is reviewed for an abuse of discretion. Barnett v Hidalgo,
478 Mich 151, 158-159; 732 NW2d 472 (2007). But a preliminary question of law regarding the
admissibility of evidence is reviewed de novo. Id. at 159.
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Generally, relevant evidence is admissible and irrelevant evidence is not. Woodard v
Custer, 476 Mich 545, 568-569; 719 NW2d 842 (2006). Evidence is relevant if it has “any
tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” MRE 401.
However, relevant evidence may still be excluded “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” MRE 403.
Plaintiff argues that a document that was presented by Huder’s counsel as notes taken in
a discussion with Angileri should have been admitted in evidence as an admission against Huder
because his defense counsel was acting as his agent when he made that document. But the
alleged admissions claimed by plaintiff pertain to medical matters, specifically the angiogram
and what it showed regarding the straight sinus. Huder’s attorney is not a doctor, so clearly any
relevant medical information in those notes came from Angileri, not counsel. The notes
themselves are hearsay under MRE 801(c). That the notes themselves are based on information
gathered from Angileri makes the notes hearsay about hearsay. Because Angileri was neither a
party opponent nor an agent of any defendant, nothing he may have said could be construed as a
party admission under MRE 801(d)(2). As hearsay within hearsay, not falling under any hearsay
exception, the notes were not admissible evidence. MRE 805. Therefore, the trial court did not
err when it did not admit the notes as evidence at trial.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Mark J. Cavanagh
/s/ Peter D. O’Connell
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