ESTATE OF CINDY LEE WILSON V MUNSON MEDICAL CENTER (Per Curiam Opinion)
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STATE OF MICHIGAN COURT OF APPEALS EDWARD H. WILSON, Personal Representative of the ESTATE OF CINDY LEE WILSON, UNPUBLISHED April 30, 2013 Plaintiff-Appellant, v MUNSON MEDICAL CENTER, MUNSON MEDICAL CENTER & HOSPITALS, MUNSON HEALTHCARE, MUNSON FAMILY PRACTICE CENTER, NORTHWESTERN MI EMERGENCY PHYSICIANS, KEVIN M. OMILUSIK, M.D., BARBARA SUPANICH, M.D., JESSICA PAQUETTE, D.O., JONATHON D. REED, R.N., PEGGY A. SCHLAEFFLIN, R.N., and MARY P. SANDERS, R.N., No. 297780 Grand Traverse Circuit Court LC No. 2008-026788-NH Defendants-Appellees, and JOSEPH N. COOK, D.O., AND LEI GONG, M.D., Defendants. Before: JANSEN, P.J., and SAWYER and SERVITTO, JJ. PER CURIAM. Plaintiff appeals as of right the trial court order denying plaintiff s motion for a new trial in this medical malpractice and wrongful death action. We affirm. Plaintiff s wife, 32-year-old Cindy Wilson, was transported by ambulance to the Munson Medical Center Emergency Room in the early morning hours of March 27, 2005, after experiencing excruciating chest pain that radiated into her back. Ms. Wilson underwent several tests, but the cause of her pain was not immediately revealed. Ms. Wilson was thus provided pain medication and was admitted to the hospital for further testing. Her pain periodically strengthened and lessened and appeared to shift throughout her mid-section over the next 24 hours. She was continuously provided medications to address the pain and to address the nausea -1- that occasionally accompanied the pain. Shortly after 7:00 a.m. on March 28, 2005, Ms. Wilson s heart rate dropped drastically. She was pronounced dead at 7:47 a.m. An autopsy revealed the cause of death as an aortic dissection1 with associated rupture of the ascending aorta. Plaintiff thereafter initiated this action for medical malpractice and wrongful death based upon defendants failure to diagnose and treat Ms. Wilson s aortic dissection. The matter proceeded to jury trial, during which the trial court granted one defendant, Mary P. Sander, R.N. s motion for directed verdict due to plaintiff s failure to establish proximate cause. At the conclusion of the trial, the jury returned a verdict in favor of the remaining defendants for no cause of action. Plaintiff thereafter moved for a new trial based upon the trial court s alleged erroneous admission of highly irrelevant, prejudicial evidence. The trial court denied plaintiff s motion. Plaintiff now appeals the trial court s denial of his motion, as well as other rulings made by the trial court prior to and during trial. The trial court's decision to grant or deny a motion for new trial is reviewed for an abuse of discretion. Barnett v Hidalgo, 478 Mich 151, 158; 732 NW2d 472 (2007). An abuse of discretion occurs when the ruling results in an outcome falling outside the range of principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). We also review the trial court s decision regarding the admission of evidence for an abuse of discretion. People v Dobek, 274 Mich App 58, 93; 732 NW2d 546 (2007). A trial court necessarily abuses its discretion when the court permits the introduction of evidence that is inadmissible as a matter of law. Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). On appeal, plaintiff first asserts that the trial court abused its discretion in admitting evidence concerning his juvenile offense of sexual molestation and that he is entitled to a new trial as a result. We agree that the challenged evidence should not have been admitted, but find that the admission of such evidence was harmless. Generally, all relevant evidence is admissible. MRE 402. Conversely, evidence that is not relevant is not admissible. People v Coy, 258 Mich App 1, 13; 669 NW2d 831 (2003). Evidence is relevant if it has any tendency to make a fact in issue more or less probable than without the evidence. MRE 401. However, MRE 403 permits the exclusion of relevant evidence when the probative value is substantially outweighed by the danger of unfair prejudice. See, e.g., People v Yost, 278 Mich App 341, 407; 749 NW2d 753 (2008). During trial, evidence was offered through the testimony of Dr. Barbara Schiff and others concerning the effect that Cindy Wilson s death had on the family in order to establish damages for purposes of plaintiff s wrongful death claim. Dr. Schiff had evaluated plaintiff, plaintiff and 1 An aortic dissection is defined as a condition in which a tear develops in the inner layer of the aorta, the large blood vessel branching off the heart. Blood surges through this tear into the middle layer of the aorta, causing the inner and middle layers to separate (dissect), and if the blood-filled channel ruptures through the outside aortic wall, aortic dissection is often fatal. www.mayoclinic.com/health/aortic-dissection. -2- Ms. Wilson s son, and Briana, Ms. Wilson s daughter from a prior relationship (to whom plaintiff had acted as a father figure since the child was three years old). Dr. Schiff testified that after Ms. Wilson s death, the relationship between Briana and plaintiff deteriorated because plaintiff fell apart and went to another state for over two years, leaving the children in the care of their aunt. Dr. Schiff and the children s aunt both testified that Briana felt angry with and abandoned by plaintiff. Defendants sought to establish that Briana s anger with plaintiff and the deterioration of her relationship with him did not stem solely from Ms. Wilson s death through the introduction of evidence that Briana and plaintiff s relationship had been strained because she was aware he had been involved in offenses of child molestation against his nieces when he was a teenager. Defendants relied on a 2009 CPS investigation that had been initiated based upon Briana s report that plaintiff had rubbed her shoulder in a way that made her feel uncomfortable because she was aware of his prior incident. The CPS file contained information pertaining to those offenses of child molestation that had occurred 24 years prior. Despite plaintiff s objections to the admission of evidence concerning his juvenile incidents, the trial court ruled that because the issue of why Brianna was angry with plaintiff was important to plaintiff s case, the testimony concerning the juvenile incident and the shoulder rubbing incident would be allowed. We would first note that while defendants attempted to minimize the impact of the testimony by asserting that the testimony simply indicated that a molestation incident occurred, not that plaintiff was charged with or convicted of a crime, the fact that plaintiff was charged with a crime arising out of the molestation was, in fact, brought out. During plaintiff s re-direct of Dr. Schiff, plaintiff s counsel stated: . . . the things that you had wanted to add when Mr. Berry was questioning you about that. What would you like to share with us about that? A: [Plaintiff] says, When I was 15 or 16, I am very ashamed, I had a sexual misconduct charge. The file was sealed. I m so distraught over it. You know, over and over he repeats this this terrible feeling of shame and guilt. However, nothing has happened since then. His wife knew; she supported him. The above testimony makes clear that it was not a mere incident, but one that involved a charge and a sealed record. In any event, there was no evidence whatsoever that plaintiff s juvenile offense played any role in the family dynamic. By all accounts, including Briana s, Briana and plaintiff got along well before Ms. Wilson s death. By all accounts, Briana also knew of plaintiff s misconduct when she was 7 or 8 years old. Defendants attempt to connect an incident that occurred in 2009, wherein Briana (then 15) reported plaintiff touching her shoulder in a way that made her uncomfortable with the knowledge of plaintiff s teenage charge and tie them both into the deterioration of the family after Ms. Wilson s 2005 death, is nothing more than speculation based on the timeframe and the record. Briana testified as to how she felt after her mother died, that she was angry with plaintiff after her mother died, and that the cause of her anger was because plaintiff immediately left, abandoning her. That plaintiff had the juvenile charge makes it no more or less likely that Briana, plaintiff, or the rest of the family was devastated by what they saw as Ms. Wilson s wrongful death, by the fact that plaintiff fell apart when she died and -3- left the children for nearly two years, that Briana was angry that plaintiff left, or that the family was left without a mother. The evidence of plaintiff s juvenile charge was thus irrelevant. Defendants assert that the challenged evidence came in through Dr. Schiff s notes indicating that plaintiff s offense had affected Briana s feelings about him and there is evidence they had an impact on Briana. However, there is nothing in the record to support these assertions. Dr. Schiff specifically testified that while plaintiff may have felt that the information affected Briana s feelings toward him, Briana did not, in fact, feel that way. Moreover, the testimony and the issue for which the testimony was offered (the breakdown of the family) were only brought up to underscore the issue of damages, and how the loss of Ms. Wilson affected the family. There was nothing to contradict the testimony that Ms. Wilson was the glue that held this family together. She provided the mothering to all of them, including plaintiff, and provided the bulk of household services. When she died, plaintiff fell apart and left for Alabama, leaving the children to be cared for by their aunt for nearly a two year period and leaving them feeling abandoned. When he returned, the children remained in the care of their aunt, although plaintiff became a part of their lives again, living on the same property. Plaintiff s sexual misconduct charge from 25 years ago when he was a teenager is irrelevant to a determination of whether the above occurred as a result of Ms. Wilson s death and should have been excluded. It was also more prejudicial than probative, considering the nature of the charge. However, under MCR 2.613(A), an error in the admission of evidence is not grounds for granting a new trial unless refusal to take such action would be inconsistent with substantial justice. Craig v Oakwood Hosp, 471 Mich at 76. The issue for resolution by the jury, before they even got to damages, was whether any of these defendants committed malpractice. The jury found that they did not. Plaintiff has not challenged the medical evidence in this case or the jury s ultimate conclusion that the defendants did not commit malpractice. While plaintiff contends that the erroneous admission of his juvenile history could not be harmless, he has not provided any analysis as to why not. We will not elaborate an appellant s argument for it, nor will we search for authority to support its position. Blackburne & Brown Mtg Co v Ziomek, 264 Mich App 615, 619; 692 NW2d 388 (2004). Thus, though the admission of evidence concerning plaintiff s sexual misconduct was in error, it was harmless and does not serve as the basis for a new trial. Plaintiff next asserts that he is entitled to a new trial due to defense counsel s violation of the spirit of their stipulation to exclude evidence that CPS had ordered plaintiff not to be alone with the children and by defense counsel s interjection into trial of hearsay evidence that CPS had taken custody of the children away from plaintiff. We disagree. MCR 2.611(A)(1)(b) allows for a new trial when the prevailing party committed misconduct that materially affected another party s substantial rights. An attorney's comments during a trial warrant reversal where they indicate a deliberate course of conduct aimed at preventing a fair and impartial trial or where counsel's remarks were such as to deflect the jury's attention from the issues involved and had a controlling influence on the verdict. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 501-502; 668 NW2d 402 (2003). However, misconduct of counsel will not justify a new trial if the error was harmless. Id. -4- During trial, defense counsel stated, "I do not intend to introduce into evidence or ask any witness about the fact that Child Protective Services has instructed [plaintiff] not to be alone in the presence of the two children. . . . At least at this juncture, without further foundation. . . . Neither of us will do it unless we address it to the Court. . . . Outside the presence of the jury. Plaintiff asserts that defense counsel violated the spirit of the above stipulation by having Dr. Schiff read one of her notes during cross-examination indicating that plaintiff told her Protective Services told [the children s aunt] she should have custody, they didn t tell me and by defense counsel reiterating during closing argument that CPS recommended that the children s aunt have guardianship over the children. Plaintiff offers no argument or authority concerning how these statements constitute inadmissible hearsay or how they prejudiced him. As to whether the statements violated defense counsel s stipulation, they in no way reference whether plaintiff should be left alone with the children and cannot be construed as a violation of even the spirit of the parties stipulation. A recommendation that one should not be left alone with one s children is wholly different from a recommendation or suggestion that one should not have custody. And, plaintiff did not object to these references when made. There was thus no error or misconduct by counsel and no basis for a new trial on this issue. Plaintiff next asserts that the trial court abused its discretion in admitting evidence that defendant Dr. Barbara Supanich, M.D. is also a nun and this error, combined with the other errors outlined above, deprived him of a fair trial. We disagree. First and foremost, there was no specific statement that Dr. Supanich was a nun. That term was never used. Second, though plaintiff states that Dr. Supanich repeatedly reminded the jury of her religious devotion and office there were exactly two references to Dr. Supanich s religious status. At the very beginning of her testimony, when she gave her title as RSM, M.D. Dr. Supanich was asked what RSM stands for. She answered, Religious Sisters of Mercy. It s the initials our order uses when you re a full member of the community. Dr. Supanich also testified, when referencing her educational background, that she once attended a program for women considering final vows in the community.2 All of the other doctors in this case were asked to detail their educational experience and medical backgrounds and Dr. Supanich was no different from the others. No emphasis was placed on her status as a nun whatsoever and no attention drawn to it. Dr. Supanich was not questioned about her religious beliefs and no effort was made to paint Dr. Supanich as more credible because of her RSM title. Plaintiff has provided no authority to suggest that Dr. Supanich s RSM title should have been excluded simply because it had a religious connotation. Nor has he provided any evidence that the jury was somehow so swayed by this passing reference that it ignored all of the other evidence in the case. The trial court s denial of 2 Plaintiff also indicates that Dr. Supanich made a reference to her status as a nun when she testified that she was at church when she was first called with respect to Cindy Wilson, because it was Easter Sunday. This reference was not to Dr. Supanich s status as a nun, but rather to her location on a religious holiday when called to report to the hospital. -5- plaintiff s motion in limine to exclude reference to Dr. Supanich s religious background was not an abuse of discretion and plaintiff is not entitled to a new trial based on the admission of such evidence. Plaintiff next asserts that the trial court abused its discretion in precluding plaintiff from impeaching defendant, Dr. Kevin Omilusik, about his deposition admission that he considered a chest coronary tomography angiogram ( CTA or CT angiogram ) the gold standard for diagnosing aortic dissection. We disagree. MRE 611 provides, in pertinent part: (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (b) Scope of cross-examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. The judge may limit crossexamination with respect to matters not testified to on direct examination. Questions seeking to elicit evidence of bias, prejudice, or interest, or inconsistent testimony or statements, should not be unduly limited. Wischmeyer v Schanz, 449 Mich 469, 475; 536 NW2d 760 (1995). However, the scope and duration of cross-examination is within the trial court's sound discretion, and this Court will not reverse the trial court's decision absent a clear showing that the court abused its discretion. Id. at 474-475. During Dr. Omilusik s cross-examination plaintiff s counsel stated, And, in fact, in your practice, you typically request a CT to rule in or rule out an aortic dissection, correct? A: That would be my test of choice at that time, yes. Q: And, in fact, a CT Angiogram is the gold standard test for ruling in or ruling out an aortic dissection in the Emergency Room at Munson Hospital, because of its availability and its high sensitivity for picking up on aortic dissection, correct? A: Gold standard wouldn t be appropriate. But, yes, it is the test we would use if they were having symptoms. That s exactly what I would do. And what I have done in the past would be to order a CT Angiogram. I agree with you a hundred percent. Q: Let me just check your testimony, because I think you told me before . . . that it was the gold standard. The Court: If it s being done to show that he used the word gold standard as opposed to he says that s definitely the best test of choice, is that a difference we need to explore? -6- Plaintiff indicated that it was very important. At which point the trial court stated, I don t think it is. I think he stated this is that the CT scan would be the test of choice for this issue. Plaintiff then asked if he could point Dr. Omilusik to his prior deposition testimony where he stated the test was the gold standard and the trial court replied, No, because it s not important. Go ahead to the next issue. Plaintiff contends that the fact that Dr. Omilusik had previously testified that the CTA was the gold standard was directly relevant and crucial, as he failed to order that one test and indicated that the less reliable tests that were performed had made him conclude that the chance of Cindy Wilson having an aortic dissection highly unlikely. As pointed out by defendants, however, at several points both on direct examination and during cross-examination, Dr. Omilusik testified that CTA was the best test for diagnosing an aortic dissection. In the crossexamination passage detailed above, while he stated that gold standard would not be appropriate, Dr. Omilusik nonetheless indicated that it is the best choice of test, the one that he would use if he suspected aortic dissection, and the test he had used in the past for diagnosing the condition. The trial court properly determined that there was nothing to be gained by showing that Dr. Omilusik had once testified that the test is the gold standard. He still had repeatedly acknowledged that the test was the best indicator for aortic dissection and that he did not perform the test which was the ultimate basis for the claim of negligence. Asking Dr. Omilusik about whether it was the gold standard was repetitive and unnecessary. Even if the trial court did abuse its discretion in limiting plaintiff s cross-examination on this issue, there is no evidence that the error was anything but harmless. If plaintiff had impeached Dr. Omilusik with his prior deposition testimony that he had labeled the CTA as the gold standard in aortic dissection tests rather than simply the best test, there is no indication that the outcome of the trial would have been different. In either circumstance, plaintiff would not be entitled to a new trial based on this issue. Plaintiff next asserts that the trial court abused its discretion in prohibiting him from cross-examining defendants expert, Dr. Shabahang, that he had previously served as an expert for Munson in another aortic dissection case and from cross-examining Dr. Shabahang or defense expert Dr. Gibb about the doctors having previously been sued for failing to diagnose aortic dissections. We disagree. Evidence concerning the fact that an expert witness had testified at the request of counsel in other cases is a permissible subject of cross-examination for the purpose of affecting credibility because it concerns possible bias or prejudice. Wilson v Stilwill, 411 Mich 587, 600601; 309 NW2d 898 (1981). Credibility is a primary question for consideration by the jury in a medical malpractice action, including that of the expert witnesses. Id. at 599. Thus, a pattern of testifying as an expert witness for a particular category of plaintiffs or defendants may suggest bias. However, such testimony is only minimally probative of bias and should be carefully scrutinized by the trial court. Id. at 601. Plaintiff asserts that he was entitled to question Dr. Shabahang not only about whether he had served as an expert witness for Munson before, but to elicit that he had served as an expert witness for Munson in a case where Munson had been sued with respect to an aortic dissection. Plaintiff has provided no authority suggesting that the specific cases on which an expert has -7- served a defendant is subject to questioning. That our Supreme Court cautioned, in Wilson, that testimony concerning prior expert service for a defendant is only minimally probative and should be carefully scrutinized by the trial court, suggests it is not. And, as the trial court indicated, the experts all essentially agreed that aortic dissection is a relatively rare occurrence. To allow reference to a prior case against Munson for the same thing would tend to indicate that it happens at Munson more than other places. The evidence would thus be more prejudicial than probative and could be properly excluded under MRE 403. As to whether evidence concerning whether Dr. Shabahang or Gibb had been sued for failing to diagnose aortic dissections should have been allowed, MRE 608 governs the admission of evidence concerning a witness character and conduct. Under MRE 608(b), specific instances of a witness' conduct may be inquired into on cross-examination only where they are probative of truthfulness or untruthfulness, and only to inquire into that witness' or another witness' truthful character. See also, Heshelman v Lombardi, 183 Mich App 72, 84-85; 454 NW2d 603 (1990). If either of these witnesses had been sued for failure to diagnose an aortic dissection was in no way probative of their truthfulness. Plaintiff, in fact, admitted that he sought to use the testimony to establish only that if these witnesses had been previously sued for the same issue upon which they were testifying, they were biased in favor of hospitals and doctors that had also been sued for the same thing. If plaintiff wanted to establish bias in such a way, he may have been able to do so simply by asking if these doctors had ever failed to initially diagnose an aortic dissection. A broad range of information may be brought out on cross-examination to discredit a witness and, when a case turns on the testimony of one expert compared with that of another, the credibility of each expert is relevant to the disposition of the case. Wischmeyer, 449 Mich at 475. To that end, prior medical failures or shortcomings on the part of the expert in the precise area on which he is testifying may be relevant and admissible (Id. at 482), but cross-examining medical malpractice experts about prior, unrelated lawsuits is generally not permitted. Heshelman, 183 Mich App 72 at 84-85. Moreover, plaintiff has provided no evidence on appeal that Dr. Shabahang did represent Munson in a prior aortic dissection case, or that either Dr. Shabahang or Dr. Gibb were previously sued for failure to diagnose an aortic dissection. The trial court thus did not abuse its discretion in limiting plaintiff s cross-examination and plaintiff is not entitled to a new trial on the challenged grounds. Finally, plaintiff contends that the trial court usurped the jury s function in granting defendant, Mary Sander, R.N. s motion for directed verdict. We agree that a directed verdict in defendant Sander s favor was improper, but find that this error was harmless. A trial court's decision on a motion for directed verdict is reviewed de novo. Zantel Mktg Agency v Whitesell Corp, 265 Mich App 559, 568, 696 NW2d 735 (2005). A directed verdict is appropriate only when no factual question exists on which reasonable jurors could differ. Id. The appellate court reviews all the evidence presented up to the time of the directed verdict motion, considers that evidence in a light most favorable to the nonmoving party, and determines whether a question of fact existed. Id. When reviewing a motion for directed verdict, it is the factfinder's responsibility to determine the credibility and weight of trial testimony. King v Reed, 278 Mich App 504, 522; 751 NW2d 525 (2008). -8- Plaintiff alleged that the three defendant nurses in this case who had contact with Cindy Wilson were negligent in that they failed to report changes in Ms. Wilson s condition to doctors so that they could reassess her. The trial court granted defendants motion for directed verdict as to Nurse Sanders based upon the fact that the evidence presented indicated that while Ms. Wilson initially presented with chest pain, she had no chest pain at the time of her admission to Nurse Sander s ward and that the next incident of chest pain was after Sanders shift, such there was nothing new for Sanders to report to any doctor. The trial court also noted that both in the emergency room and while under Sander s care, Ms. Wilson had hip pain, but that Dr. Supanich was aware of this pain. Plaintiff relies upon the testimony of Diane Cook and Dr. Supanich to support his assertion that a directed verdict in Nurse Sander s favor was inappropriate. Plaintiff directs us to Cook s testimony wherein she stated that the standard of care required Sanders and the other cardiac unit nurses to call a doctor to report Ms. Wilson s continuing pain. Cook further testified that Sanders breached the standard of care by not calling a doctor when Ms. Wilson had additional pain at two different times during her shift on March 25, 2007. Plaintiff also directs us to Dr. Supanich s testimony that she expected nurses to notify the unit s resident about any new pain and that she would have wanted to be notified if, during Sander s shift, Ms. Wilson had groin pain at a level 8/10 and that Ms. Wilson had stated she never had pain like that before, so that they could perhaps perform more tests. Sanders testimony was that Ms. Wilson did not report pain to her at all until 2:55 p.m., at the end of Sanders shift, when she reported pain in her groin. Sanders testified that Ms. Wilson did not have chest pain at all while under her care. Sanders further referred to the notes recorded during her shift and indicated that she wrote down that Ms. Wilson had 8/10 chest and groin pain while in the ER. Sanders also testified that during her shift, Ms. Wilson had a consult with an orthopedic surgeon to evaluate her hip and groin area and had a hip x-ray taken. Interestingly, at the same time it granted a directed verdict in Sander s favor, the trial court denied directed verdicts in the remaining nurses favor, finding there was a question of fact as to whether Ms. Wilson s condition changed sufficiently such that they should have reported the change to the doctors and a question of fact as to whether the doctors would have done something differently had they known of the change. Based on Dr. Supanich s testimony, there was also a question of fact on these same issues with respect to Sanders. A directed verdict in her favor was therefore inappropriate. However, this error was harmless. The jury found no negligence on the part of any nurse, who were all charged with the exact same instances of negligence failure to contact a doctor with reports of pain. All of the three nurses noted varying instances of pain, in varying body areas, at varying levels with respect to Cindy Wilson, and the other two nurses spent full 8-hour shifts caring for Ms. Wilson, whereas Sanders was with her for perhaps three hours. All of the nurses administered pain medications. Nurse Reed, however, was the only one who contacted a doctor. He contacted the resident on duty and requested a different medication, an antiinflammatory, to give to Ms. Wilson. No other action was taken by the resident and though expert witness Cook opined that Nurse Reed should have gone through the chain of command to request that a doctor see Ms. Wilson, the jury still found that Nurse Reed complied with the standard of care. Given that the jury found no negligence on the part of any other nurse for -9- failing to report Ms. Wilson s pain to a doctor or request that she be reassessed by a doctor, there is no indication that it would have somehow found Sanders negligent for her failure to do the same. Affirmed. /s/ Kathleen Jansen /s/ David H. Sawyer /s/ Deborah A. Servitto -10-
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