Braverman v. Granger

303 Mich.App. 587

844 N.W.2d 485

BRAVERMAN

v.GRANGER.

Docket No. 309528.

Court of Appeals of Michigan.

Submitted Dec. 11, 2013, at Detroit.

Decided Jan. 9, 2014, at 9:00 a.m.

Allan Falk, PC, Okemos (by Allan Falk), for Eric Braverman.

Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit (by Susan Healy Zitterman, Anthony G. Arnone, and Cheryl A. Cardelli) for Darla K. Granger, Heung K. Oh, Ivan G. Olarte, St. John Hospital and Medical Center, and St. John Health.

Kerr, Russell & Weber, PLC, Detroit (by Joanne Geha Swanson), for Robert Provenzano, Mohamed A. El–Ghoroury, and St. Clair Specialty Physicians.

Before: BOONSTRA, P.J., and DONOFRIO and BECKERING, JJ.

PER CURIAM.

This medical-malpractice case ultimately requires an answer to the following question: Who must bear the legal burden for the death of Gwendolyn Rozier when Rozier, because of her religious convictions, refused to accept a blood transfusion that likely would have saved her life, but Rozier's doctors, through their assumed breach of the applicable standard of care and acting with knowledge of her religious convictions, placed Rozier in the position to need the blood transfusion? This is a difficult case because of both the complex legal issues this question presents and the tragic loss incurred by Rozier's family.

The trial court concluded that plaintiff, Eric Braverman, as personal representative of the Estate of Gwendolyn Rozier, is barred as a matter of law by the doctrine of avoidable consequences from recovering damages for Rozier's death. Thus, the court granted summary disposition under MCR 2.116(C)(10) in favor of defendants Darla K. Granger, M.D., Heung K. Oh, M.D., Ivan G. Olarte, M.D., St. John Hospital and Medical Center, and St. John Health (collectively the “St. John defendants”); and defendants Robert Provenzano, M.D., Mohamed A. El–Ghoroury, M.D., and St. Clair Specialty Physicians (collectively the “St. Clair defendants”). Plaintiff now appeals as of right. For reasons discussed further in this opinion, we agree with the trial court that the doctrine of avoidable consequences, when applied in a purely objective manner to comply with the First Amendment's requirement of government neutrality toward religion, precludes plaintiff from recovering damages for Rozier's death. Therefore, we affirm.

I. BASIC FACTS AND PROCEDURAL HISTORY

According to the Jehovah's Witness faith, no blood, blood product, or any derivative of any kind of blood are allowed for medical treatment. Every Jehovah's Witness consciously determines what he or she accepts in blood management. Rozier was a Jehovah's Witness and would not accept whole blood or blood products in medical treatment.

On August 15, 2007, Rozier was suffering from end-stage renal disease and received a kidney transplant at St. John Hospital. Dr. Oh and surgical resident Dr. Olarte performed the surgery. Rozier was discharged on August 18, 2007, but returned to St. John Hospital on August 24, 2007, with complaints of abdominal pain.¹ She was admitted under the care of nephrologist Dr. El–Ghoroury, with transplant surgeons Drs. Granger and Oh consulting. Rozier's doctors suspected an antibody-mediated rejection of the kidney. Rozier received intravenous immune globulin (IVIG) and Solu–Medrol (steroids). A CT-guided needle biopsy of the renal graft was performed to determine whether the transplanted kidney was being rejected. According to Dr. Oh's operative report, the biopsy confirmed the presence of antibody-mediated vascular rejection. As a result, Rozier began plasmapheresis treatment with albumin solution replacement,² as well as the IVIG and Solu–Medrol treatment. Plaintiff contends that while plasmapheresis has been shown to be effective for removing antibodies that are presumably causing rejection of the donor organ, it is also known to affect the patient's coagulation parameters and clotting factors. A nephrologist monitors a plasmapheresis patient and decides what the coagulation parameters are and orders coagulation studies; Dr. Provenzano and Dr. El–Ghoroury were the treating nephrologists in this case.

The documentary evidence illustrates that on August 25, Rozier's hematocrit level was 41.6%, and her hemoglobin level was 13.7 grams per deciliter of blood (g/dl).³ On August 26, Rozier's hematocrit and hemoglobin levels decreased to 33.1% and 11 g/dL, respectively. On the morning of August 28, 2007, Rozier was noted to be very pale and confused; her hematocrit level was 16.4%, and her hemoglobin level was 6.4 g/dL, which raised suspicion of internal bleeding from the transplant kidney. Rozier underwent an abdominal CT scan, which, according to Dr. Oh's report, “confirmed the presence of [a] large mass around the kidney and could explain for the drop in hemoglobin.” In the report, Dr. Oh noted, “Since she is a Jehovah Witness, we were not able to replace the plasma that was removed by plasmapheresis and was [sic] able to replace only by the albumin solution so her bleeding parameters were prolonged.”

Rozier was taken to the operating room immediately after the CT-scan finding. The intended procedure, risks, and complications, including bleeding from the transplant wound and possible death because of Rozier's refusal to accept any blood product, were explained to Rozier's husband, Gregory. Dr. Oh explained to Gregory that Rozier's hemoglobin was unacceptably low and that she needed a blood transfusion. Gregory responded, “Well, that's unacceptable, Dr. Oh, as you well know.” The Roziers had previously discussed with Dr. Oh that they were Jehovah's Witnesses and had explained that they would not accept whole blood or whole blood products. Further, Rozier had signed a document stating that she refused to permit “blood and/or blood components to be administered[.]” Rozier consented to defendants doing anything they thought was appropriate for her, except for the “blood situation.”

According to Dr. Oh's operative report, the fascia of the kidney was “found to have a large amount of blood clots, as well as fresh blood.” The kidney was completely decapsulated. And the “lower pole of the kidney showed there was a small pumper from what seemed to be a biopsy site.” The bleeding site was sutured. However, the fate of the transplant kidney was found to be “doomed because [they] were not able to give [Rozier] anymore treatment for vascular rejection due to her bleeding tendencies, as well as [her] refusal to receive any blood product so it was decided to remove the transplant to give her a chance to survive....” The kidney transplant was removed without incident. Upon inspecting the transplant wound, there were still some clots in Rozier's retroperitoneum. Although the operation was completed and Rozier was taken to recovery, she died on August 29, 2007, at the age of 55.

On November 30, 2009, plaintiff initiated the instant medical-malpractice suit against defendants. Plaintiff alleged various breaches of the standard of care, including improper prescription of various blood-thinning medications and daily plasmapheresis,⁴ and also a failure to timely recognize signs of internal bleeding. The St. John defendants moved the trial court for summary disposition, arguing, among other things, that the doctrine of avoidable consequences barred plaintiff's claim for wrongful-death damages. The St. Clair defendants likewise moved the trial court for summary disposition, arguing that they were not liable for wrongful-death damages arising out of Rozier's failure to mitigate. In response to defendants' mitigation argument, plaintiff argued that application of the doctrine of avoidable consequences would violate the Free Exercise and Establishment Clauses of the First Amendment by incidentally hindering a Jehovah's Witness's exercise of the tenets of her religion and allowing a jury to considerthe reasonableness of the Jehovah's Witness religion, respectively. Plaintiff emphasized that defendants caused Rozier's fatal predicament because but for defendants' negligence, a decision concerning the acceptance of a blood transfusion would not have been needed.

After a hearing to address the motions, the trial court issued an opinion and order, granting defendants' motions for summary disposition under MCR 2.116(C)(10). The court opined that after “thorough research,” it would use an objective standard—as opposed to a case-by-case approach that would inject religion into the case—when applying the doctrine of avoidable consequences. Relying on caselaw from the United States Court of Appeals for the Fifth Circuit, the trial court was persuaded by and adopted the view that an objective approach did not violate the First Amendment. Applying the doctrine of avoidable consequences using the objective approach, the court opined, in pertinent part, as follows:

Rozier had a duty to exercise reasonable care to minimize her damages.... [I]t is uncontested that the medical procedure, i.e., a blood transfusion, would have saved her life and stood a high probability of being successful had it been accepted by Ms. Rozier. Although the record indicates genuine issues of material fact regarding whether defendants breached the standard of care by prescribing various blood thinning medications, daily plasmapheresis, and failing to timely recognize signs of internal bleeding, the record further indicates that after defendants' alleged wrongful conduct Ms. Rozier had the opportunity to mitigate her damages but instead made the decision to refuse the blood transfusion.

Under these circumstances, once Ms. Rozier's religious beliefs are removed from the equation, a reasonable trier of fact could not conclude that the refusal to accept a life-saving procedure, i.e., a blood transfusion, was a reasonable choice under the objective person approach. The proposed blood transfusion was reasonable, since there were no remaining alternatives, a high probability of a positive outcome, and the transfusion was not a serious...