Dorsey v. Surgical Inst. of Mich., LLC

338 Mich.App. 199

979 N.W.2d 681

Noel DORSEY, Plaintiff-Appellee,

v. SURGICAL INSTITUTE OF MICHIGAN, LLC, and Surgical Institute of Michigan Ambulatory Surgery Center, LLC, Defendant-Appellants,andAria Omar Sabit, Michigan Brain & Spine Physicians Group, PLLC, Jiab Hasan Suleiman, and Jiab Suleiman, D.O., PC, doing business as Premier Orthopedics, Defendants.

No. 349759

Court of Appeals of Michigan.

Submitted May 5, 2021, at Detroit.

Decided July 29, 2021, at 9:05 a.m.

Plunkett Cooney (by Robert G. Kamenec ) for defendants Surgical Institute of Michigan, LLC, and Surgical Institute of Michigan Ambulatory Surgery Center, LLC.

Albert J. Dib and Barbara H. Goldman for Noel Dorsey.

Before: Boonstra, P.J., and Cavanagh and Gadola, JJ.

Per Curiam.

Defendants, Surgical Institute of Michigan, LLC, and Surgical Institute of Michigan Ambulatory Surgery Center, LLC (collectively, SIM¹ ), appeal as of right a judgment entered in plaintiff's favor following a jury trial in this medical malpractice action. We reverse and remand for entry of judgment in favor of SIM.

I. BACKGROUND FACTS

This matter arises from a surgery codefendant Dr. Aria Omar Sabit performed on plaintiff, Noel Dorsey, at SIM on February 8, 2012. Dr. Sabit's operative report indicates that he performed a posterior lumbar interbody fusion, a laminectomy for decompression of the nerve, and an interbody cage placement, all at the L4-L5 level of plaintiff's spine. Plaintiff's back pain persisted after the procedure. Plaintiff filed this lawsuit in 2016 after learning from another neurosurgeon that the described procedures were not actually performed. Plaintiff asserted a medical malpractice claim and other theories against Dr. Sabit and his practice, Michigan Brain and Spine Physicians Group, PLLC (MBSPG). Neither Dr. Sabit nor MBSPG filed timely answers, and defaults were entered against both defendants on March 17, 2017—which are not at issue in this appeal.²

Plaintiff's complaint also raised numerous claims against SIM, an ambulatory surgery center that claimed to have "the most highly trained and experienced medical professionals." Only plaintiff's medical malpractice claim against SIM, premised on a negligent-credentialing theory, is at issue in this appeal.

During discovery, plaintiff filed a motion to compel asserting that SIM failed to produce certain requested documents, including Dr. Sabit's application for privileges, credentialing reviews conducted by SIM with respect to Dr. Sabit, and other documents demonstrating that Dr. Sabit was appropriately trained and licensed. SIM responded that the credentialing file was privileged and protected from disclosure under MCL 333.21515. Plaintiff replied that MCL 333.21515 afforded protection to hospitals only. And because SIM was a freestanding surgical outpatient facility licensed under a different section of the Public Health Code, MCL 333.1101 et seq. , it could not rely on the confidentiality provision in MCL 333.21515. SIM responded that it was a health facility, as set forth in MCL 333.20175(8), and entitled to the protections afforded by statute. SIM also cited MCL 333.21515 and MCL 333.20175 in its written objections to plaintiff's request for production relating to personnel files, as well as a motion for protective order. The trial court determined that the Legislature intended to treat hospitals and freestanding surgical outpatient facilities differently and that only hospitals were given statutory protections against disclosing peer-review files. Although SIM produced its credentialing file regarding Dr. Sabit pursuant to the court's order, SIM continued to object to the admissibility of the file.³

The credentialing file included a series of letters that formed the primary evidentiary basis for plaintiff's case against SIM. Dr. Sabit submitted an application for surgical privileges at SIM on or about April 29, 2011. In the application, Dr. Sabit indicated that he had privileges at Community Memorial Hospital (CMH) in Ventura, California, from 2009 to 2011 and had current privileges at Doctor's Hospital in Pontiac, Michigan. As part of their credentialing process, SIM sent a letter to CMH requesting verification of Dr. Sabit's status there and a summary of any disciplinary actions within the previous five years. CMH responded with a request for Dr. Sabit to sign a comprehensive release permitting disclosure of information. On May 19, 2011, after the release was signed and returned, Dr. Marc Beaghler, CMH's chief of staff, sent the following letter:

In response to your request regarding [Dr. Sabit], the following information is provided:

Current Status:	Resigned (Provisional at the time of Resignation)
Appointment Date:	8/11/2009 to 1/13/2011
Primary Specialty:	Neurosurgery
Department:	Surgery

A review of information available indicates that this practitioner has not always complied with the Medical Staff Bylaws, Rules and Regulations, and other policies of Community Memorial Hospital of San Buenaventura. Action had been taken against this practitioner's clinical privileges in the form of a brief summary suspension. At the time he resigned from the Medical Staff his practice was the subject of a focused review but was not the subject of any formal investigation or disciplinary action. Please note that this letter does not address administrative suspension for expired licenses, liability certificates or health testing requirements. To our knowledge, there are no disciplinary actions pending against this individual, nor any health condition that might compromise this practitioner's ability to provide services to your organization or facility.

As required by The Joint Commission, each member of our staff with clinical privileges is subject to ongoing and focused professional practice evaluation. Included in this evaluation is assessment of patient care practices, clinical knowledge and judgment, continuing medical education, improvement in the use of evidence-based medicine and technology, interpersonal and communication skills, professionalism, and practice of, and advocacy for, patient safety concepts. Ongoing professional practice evaluation of this practitioner's practice revealed several concerns.

SIM's credentialing file contained two copies of this letter. The first, presumably original, copy did not have the underlining reflected in the above quotation. The second copy included the above underlining added by hand.

On May 20, 2011, SIM sent a letter to Dr. Sabit indicating that CMH had raised issues that required further investigation before privileges could be granted. The letter continued, "Specifically, the chief of staff has informed us that you were non-compliant with policies, medical staff bylaws, rules and regulations." SIM therefore asked Dr. Sabit to respond in writing to address that issue. Dr. Sabit was further advised that SIM might request his personal appearance before the medical executive committee to discuss the matter if his written response was deemed insufficient. Although SIM's credentialing file did not contain a written response from Dr. Sabit, the next letter from SIM to Dr. Sabit, dated May 26, 2011, said:

I want to thank you for your prompt response to the letter from SIM in regard to the peer review from Community Memorial Hospital. Your reply has been reviewed by the members of the medical executive committee. At this time you have been granted temporary privileges for the surgical procedures that you have requested, pending final approval of your credential packet from the board of directors.

Citing SIM's request for a written response from Dr. Sabit, its subsequent acknowledgment of Dr. Sabit's prompt response, and deposition testimony from SIM's medical director indicating that the written response would have been kept in the credentialing file, plaintiff asked the trial court to give an adverse-inference instruction at trial, see M. Civ. JI 6.01, and sanction SIM for intentional spoliation of evidence. SIM opposed plaintiff's motions, denying that it removed or destroyed anything from the credentialing file before producing it to plaintiff. SIM argued that there was no evidence that Dr. Sabit submitted a written response, and SIM's medical director testified that he had no recollection of having seen any such response. The trial court agreed to give an adverse-inference instruction because the evidence showed that SIM asked Dr. Sabit for a written response, acknowledged receipt of a response, and no response was produced with SIM's records. However, the court found no evidence that SIM intentionally destroyed evidence and therefore denied the motion for sanctions.

Plaintiff also filed a motion to determine the scope of SIM's liability for negligently credentialing Dr. Sabit, arguing that the damages cap applicable to medical malpractice verdicts should not be applied if SIM was found to be vicariously liable for Dr. Sabit's ordinary negligence ("in performing unnecessary, fictitious, and/or incorrect surgery of plaintiff's lumbar spine"), which had been established by default. SIM disagreed that Dr. Sabit's default could be imputed to it. SIM also argued that it could not be held jointly and severally liable for Dr. Sabit's actions under MCL 600.6304(6) because the respective liabilities arose from acts and omissions that differed in time, place, and type. The trial court ruled that SIM could be held jointly and severally liable if plaintiff obtained a verdict against Dr. Sabit, but only with respect to a malpractice claim. The court also determined that plaintiff was required to prove that Dr. Sabit committed malpractice as part of her negligent-credentialing claim against SIM, plaintiff could not rely on Dr. Sabit's default for that purpose, and SIM was free to dispute Dr. Sabit's malpractice as part of its defense.

Of the nearly 20 motions in limine filed by the parties, only two have particular relevance to the issues on appeal. In the first, SIM moved for separate trials...