Carlsen v. Sw. Mich. Emergency Servs., PC

338 Mich.App. 678

980 N.W.2d 785

ESTATE OF Kinzie Renee CARLSEN, BY Mindy CARLSEN and Allen Carlson, Personal Representatives, Plaintiffs-Appellants/Cross-Appellees,

v. SOUTHWESTERN MICHIGAN EMERGENCY SERVICES, PC, Defendant-Appellee/Cross-Appellant,andBronson Methodist Hospital, Erin K. Eferem, and Ryan S. Smith, Defendants.

No. 351159

Court of Appeals of Michigan.

Submitted August 4, 2021, at Grand Rapids.

Decided September 2, 2021, 9:05 a.m.

Fieger, Fieger, Kenney & Harrington, PC (by Sima G. Patel, Troy and Geoffrey N. Fieger, Southfield) for the estate of Kenzie Renee Carlsen.

Collins Einhorn Farrell PC (by Trent B. Collins and Michael J. Cook, Southfield) for Southwestern Michigan Emergency Services, PC.

Before: Tukel, P.J., and K. F. Kelly and Gadola, JJ.

Tukel, P.J.

This professional negligence action arises from the June 30, 2012 death of seven-month-old Kinzie Renee Carlsen at Bronson Methodist Hospital (Bronson). Plaintiffs Mindy Carlsen and Allen Carlsen, Kinzie's parents and personal representatives of the estate of Kinzie Renee Carlsen, appeal by right from the trial court's orders denying their motion for a new trial and granting the motion of defendant Southwestern Michigan Emergency Services, PC (Southwestern) for taxed costs. Plaintiffs also appeal the trial court's order entering a judgment on the jury's verdict of no cause of action. On appeal, plaintiffs raise a Batson¹ challenge, assert several instances of prejudicial misconduct on the part of Southwestern's counsel, and challenge the amount of taxed costs awarded to Southwestern. On cross-appeal, Southwestern challenges the trial court's order granting plaintiffs’ motion to approve payment of costs. Southwestern asserts that it was entitled to recover its taxed costs from the estate's settlement with Bronson before plaintiffs’ attorney recovered his costs and fees. We affirm the trial court's orders entering a judgment of no cause of action, denying plaintiffs a new trial, and granting plaintiffs’ motion for payment of costs. In addition, we affirm, in general, the trial court's award of taxable costs to Southwestern, but we reverse the amount of taxable costs awarded and remand for further proceedings consistent with this opinion.

I. UNDERLYING FACTS

Just before 6:00 p.m. on June 27, 2012, Kinzie presented to the emergency department at Bronson in Kalamazoo. She had a fever of 104.6 degrees Fahrenheit, a pulse of 180, and a respiratory rate of 28. According to her medical chart, she was examined by second-year resident Dr. Erin K. Eferem and Dr. Eferem's supervising physician, Dr. Ryan S. Smith. According to Kinzie's chart, she was active with a strong cry; her ears, nose, mouth, and throat were normal; the whites of her eyes were normal; and her pupils were equal, round, and reactive to light. She was alert and displayed normal strength and muscle tone, her anterior fontanelle was flat, and her neck was supple with a normal range of motion. A urinalysis showed an elevated level of proteins but no sign of infection, and she had no diaper rash. She was given Motrin and Tylenol for her fever and discharged at 8:45 p.m., by which time her temperature had decreased to 100.7 degrees Fahrenheit. It was recommended that her parents bring Kinzie back to the hospital or follow up with her pediatrician in a few days.

The next day, June 28, Kinzie's father, Allen, noticed a lump on the side of Kinzie's neck that had not been there before. He took her to Bronson LakeView Hospital in Paw Paw, where they were told that Kinzie had meningitis. Kinzie was intubated, given 900 milligrams of intramuscular Rocephin—an antibiotic—and transferred by "baby bus" to Bronson in Kalamazoo; at some point, she was put on a life-support machine. Two days later, tests showed no brain activity. Life support was withdrawn, and Kinzie was pronounced dead at 11:25 a.m. on June 30, 2012. Kinzie's death certificate identifies her cause of her death as "Staphylococcal Sepsis and Meningitis."

Kinzie's parents, as personal representatives of Kinzie's estate, filed a professional negligence claim against Drs. Eferem and Smith, alleging that Bronson and Southwestern were vicariously liable for the acts and omissions of Drs. Eferem and Smith.² The complaint alleged that the standard of care for an emergency-medicine physician confronted with a patient that presented with Kinzie's signs and symptoms required the physician to formulate a differential diagnosis that included bacterial infection, order the diagnostic tests necessary to confirm or eliminate that diagnosis, diagnose and treat a bacterial infection, keep the child in the hospital for monitoring, and consult with experts in pediatrics or infectious diseases. Drs. Eferem and Smith were professionally negligent for failing to comply with this standard of care, and their negligence proximately caused plaintiffs’ injuries and damages.

In February 2015, the parties stipulated to the dismissal of Dr. Eferem with prejudice and to the dismissal with prejudice of claims against Bronson arising from Dr. Eferem's conduct. In May 2018, plaintiffs and Bronson entered into a confidential settlement agreement. Plaintiffs affirmed that they understood that costs incurred by their attorney's firm as well as their attorney fees would be deducted from the settlement funds. The remainder would go to the estate to be distributed by the trial court. The trial court entered an order approving the agreement.³ About the same time as the agreement to settle, the parties stipulated to dismiss Dr. Smith from the action without prejudice. Plaintiffs proceeded to trial against Southwestern.

Plaintiffs’ expert witnesses at trial were Dr. Joseph Cervia, Dr. Karen Jubanyik, and Dr. Carolyn Crawford. Drs. Cervia and Crawford testified that, although Kinzie was in the early stages of meningitis when she presented to Bronson on June 27, there was a window of opportunity for effective treatment. Dr. Cervia explained that Kinzie had an overwhelming bacterial infection caused by methicillin-resistant staph aureus (MRSA). Dr. Cervia stated that, although MRSA are resistant to the antibiotics typically used to treat staph infections, there are antibiotics that still work on the organism, and Vancomycin was the drug of choice used to treat MRSA. All three of plaintiffs’ experts testified that if doctors had administered the antibiotic Vancomycin to Kinzie on June 27, she would have survived.

Dr. Jubanyik testified that Dr. Smith's failure to administer Vancomycin breached the standard of care for an emergency-medicine doctor.

Southwestern's expert witnesses were Dr. Francis McGeorge and Dr. David Talan. Dr. McGeorge testified that Drs. Eferem and Smith complied with the standard of care: they did exactly what he would have done, what he would have trained any resident to do, and what he would have expected any colleague to do. He explained that even if the doctors had administered antibiotics to Kinzie on June 27, the standard treatment that all doctors do is to administer the antibiotics Rocephin and/or Amoxicillin, neither of which is effective against MRSA. In essence, Dr. McGeorge testified, nothing that the standard of care called for the doctors to do for Kinzie on June 27 would have changed the outcome. Dr. Talan confirmed that the evaluation of Kinzie met the standard of care and that there was nothing in textbooks or the guidelines regarding how to treat MRSA infections that would have led the doctors to administer Vancomycin. Dr. Talan also opined that the MRSA that Kinzie's father had in his toe differed from the bacteria that caused Kinzie's death.⁴

The jury returned a five-to-two verdict of no cause of action. After several posttrial motions were resolved, plaintiffs appealed and Southwestern filed a cross-appeal.

II. BATSON CHALLENGE

Plaintiffs first contend that defense counsel erroneously exercised a peremptory strike to exclude a juror on the basis of race and sex in violation of the United States and Michigan Constitutions and that the only remedy for the error is to vacate the jury's verdict and remand the matter for a new trial. We find no Batson violation.

A. STANDARD OF REVIEW

When reviewing a Batson challenge,

the proper standard of review depends on which Batson step is before us. If the first step is at issue (whether the opponent of the challenge has satisfied his burden of demonstrating a prima facie case of discrimination), we review the trial court's underlying factual findings for clear error, and we review questions of law de novo. If Batson ’s second step is implicated (whether the proponent of the peremptory challenge articulates a race-neutral explanation as a matter of law), we review the proffered explanation de novo. Finally, if the third step is at issue (the trial court's determinations whether the race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination), we review the trial court's ruling for clear error. [ People v. Knight , 473 Mich. 324, 345, 701 N.W.2d 715 (2005).]

A trial court's finding "is clearly erroneous when no evidence supports the finding or, on the entire record, this Court is left with a definite and firm conviction that a mistake has been made." King v. Mich. State Police Dep't , 303 Mich.App. 162, 185, 841 N.W.2d 914 (2013).

B. ANALYSIS

"A Batson error occurs when a juror is actually dismissed on the basis of race or gender."

People v. Bell , 473 Mich. 275, 293, 702 N.W.2d 128 (2005). To establish a Batson violation, the opponent of a peremptory challenge must first establish a prima facie showing of discrimination. This requires showing that:

(1) he [or she] is a member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a member of a certain racial group from the jury pool; and (3) all the relevant circumstances raise an inference that the proponent of the challenge excluded the prospective juror on the

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