Maxey v. Botsford Gen. Hosp.

1

JASON MAXEY and BETHANY MAXEY, Plaintiffs-Appellants/Cross-Appellees, v. BOTSFORD GENERAL HOSPITAL, GLENDALE NEUROLOGICAL ASSOCIATES, P.C., and ROBERT PIERCE, D.O., Defendants-Appellees/Cross-Appellants, and PROGRESSIVE HEALTH CARE, MICHAEL HAROUTUNIAN, D.O., and WILLIAM RUDY, D.O., Defendants-Appellees, and DAVID GREEN and WILLIAM BOUDOURIS, Defendants. JASON MAXEY and BETHANY MAXEY, Plaintiffs-Appellants, v. BOTSFORD GENERAL HOSPITAL, GLENDALE NEUROLOGICAL ASSOCIATES, P.C., and ROBERT PIERCE, D.O., Defendants-Appellees, and PROGRESSIVE HEALTH CARE, MICHAEL HAROUTUNIAN, D.O., WILLIAM RUDY, D.O., DAVID GREEN, and WILLIAM BOUDOURIS, Defendants.

Nos. 353920, 356404

Court of Appeals of Michigan

February 17, 2022

UNPUBLISHED

Oakland Circuit Court LC Nos. 2015-148616-NI, 2015-148616-NH Before: K. F. Kelly, P.J., and Sawyer and Gadola, JJ.

PER CURIAM.

In these consolidated appeals, ^[1] in Docket No. 353920, plaintiffs Jason Maxey and Bethany Maxey^[2] appeal as of right the trial court's final order of dismissal. In Docket No. 356404 plaintiffs appeal as of right the trial court's postjudgment order imposing costs against them under MCR 2.625 in favor of defendants Glendale Neurological Associates, P.C. ("Glendale"), Dr. Robert Pierce and Botsford General Hospital ("Botsford"). Finding no error warranting reversal, we affirm.

Plaintiffs brought this medical malpractice action against defendants Botsford, Progressive Health Care ("Progressive") Glendale, and Dr. Michael Haroutunian, Dr. William Rudy, Dr. David Green, Dr. William Boudouris, and Dr. Pierce. In prior appeals, this Court held that the trial court erred by failing to conduct Daubert^[3] hearings to determine the reliability of plaintiffs' experts' proposed testimony and remanded for such hearings. See Maxey v Botsford Gen Hosp, unpublished order of the Court of Appeals, entered April 5, 2018 (Docket No. 340812) ("Maxey I"), and Maxey v Botsford Gen Hosp, unpublished per curiam opinion of the Court of Appeals, entered August 22, 2019 (Docket Nos. 341988, 341992) ("Maxey II"). Following hearings on the latest remand, the trial court entered orders granting motions in limine and summary disposition in favor of Botsford and Glendale and Dr. Pierce (collectively the "Glendale defendants") and assessed costs. These appeals concern those orders.

I. BASIC FACTS AND PROCEDURAL HISTORY

On February 17, 2013, plaintiff presented to Botsford with complaints of left-sided weakness and facial droop. He could not hold up his left arm or walk. He also reported severe headache, blurred vision, nausea, and vomiting. Plaintiff was admitted to Botsford under the service of David Green, D.O., William Rudy, D.O., William Boudouris, D.O., Michael Haroutunian, D.O., and Robert Pierce, D.O.

On February 18, 2013, an MRI was performed on plaintiff's brain, which "showed evidence of restricted diffusion involving a large portion of the right cerebral hemisphere within the MCA [main carotid artery] distribution." The MRI revealed "a suspected occlusion of the right internal carotid artery, and right middle cerebral artery." Samuel Jassenoff, D.O., performed and interpreted a Doppler ultrasound of the carotid artery and "found the possibility of significant stenotic disease near the origin of the right common carotid artery." Plaintiff subsequently suffered an ischemic stroke caused by occlusion of a blood vessel in his brain.

In their complaint, filed on August 17, 2015, plaintiffs alleged that the defendant physicians failed to recognize that a stroke was imminent, and the failure to timely prevent, diagnose, and treat the stroke caused multiple disabilities, including difficulty in ambulating, impaired speech, impaired vision, debilitating left-side weaknesses, impaired cognition, and loss of use of his left arm, hand, and leg. Plaintiff also claimed to have experienced emotional distress, loss of income, and loss of employment as a result of the stroke. Plaintiffs alleged that with proper treatment, plaintiff would have had an improved outcome as measured by his modified Rankin scale (mRS) six months after the stroke.^[4] Plaintiff was evaluated as having an mRS score of three or four, because he could walk short distances without assistance, but needed a wheelchair for longer distances.

Plaintiffs' proposed expert witnesses were Dr. Nancy Futrell, Dr. Chitra Venkatasubramanian, M.D., and Dr. Gregg Zoarski, M.D. This appeal concerns four of plaintiffs' theories that defendants breached the applicable standard of care for a patient with carotid artery dissection at risk of a stroke: (1) defendants failed to timely administer tPA (tissue plasminogen activator); (2) defendants failed to change plaintiff's drug treatment from aspirin (an antiplatelet drug) to Heparin (an anticoagulant drug) after he suffered a transient ischemic attack (TIA) while on aspirin; (3) defendants failed to consult an interventional neuroradiologist regarding endovascular therapy to physically dissolve the clot; and (4) defendants failed to exercise proper control over plaintiff's blood pressure and heart rate.

Defendants filed multiple motions to exclude expert testimony supporting plaintiffs' claims that there was a greater than 50 percent probability that plaintiff would have achieved a more favorable outcome if defendants had not violated these standards of care. Defendants also asserted that the experts' opinions failed to meet the reliability requirements of MRE 702 and MCL 600.2955. Defendants moved for summary disposition of these claims under MCR 2.116(C)(10).

In 2017, the trial court granted summary disposition in defendants' favor regarding the Heparin and blood pressure claims without conducting a Daubert hearing. The trial court also dismissed the tPA claim after striking the testimony of plaintiffs' expert witnesses without conducting a Daubert hearing. In Maxey I, in lieu of granting plaintiffs' application for leave to appeal, this Court vacated the trial court's orders and remanded for a Daubert hearing. Following the hearing, the trial court again excluded the testimony and granted summary disposition in defendants' favor. In Maxey II, this Court held that the trial court did not err by denying defendants' motions for entry of judgment, but erred by failing to hold a Daubert hearing "as to the reliability of Dr. Zoarski's opinion regarding endovascular intervention[, ]" and accordingly, remanded for such a hearing. Maxey II, unpub op at 6, 9. Following proceedings on remand, the trial court concluded that the medical literature did not support Dr. Zoarski's opinion. The trial court subsequently issued a final order of dismissal because the orders granting the motions in limine and motions for summary disposition left plaintiffs without any remaining viable claims.

Defendants also moved to strike Dr. Futrell and Dr. Venkatasubramanian as expert witnesses on the ground that they were not qualified experts under MCL 600.2169. The trial court denied this motion. Defendants challenge this ruling on cross-appeal.

Botsford and the Glendale defendants thereafter filed motions for costs under MCR 2.625. Botsford sought a total of $146, 451.97 in expert witness fees for 10 witnesses. The Glendale defendants requested costs in the amount of $41, 385. Plaintiffs did not respond to the Glendale defendants' motion. The trial court ultimately awarded Botsford taxable costs in the amount $120, 864.47, and awarded the Glendale defendants their requested costs of $41, 385.

II. DOCKET NO. 353920

A. FAILURE TO TREAT WITH HEPARIN AND TO CONTROL BLOOD PRESSURE AND HEART RATE

Plaintiffs first argue that the trial court erred by excluding expert testimony that plaintiff's stroke could have been prevented if he had been treated with Heparin after aspirin failed to prevent a TIA or if plaintiff's blood pressure had increased. They argue that the trial court should not have decided that this proposed testimony was inadmissible without first conducting a Daubert hearing. We disagree.

A trial court's decision whether to admit expert testimony, including its exercise of its role as gatekeeper, is reviewed for an abuse of discretion. Gay v Select Specialty Hosp, 295 Mich.App. 284, 290; 813 N.W.2d 354 (2012). "An abuse of discretion occurs when the decision results in an outcome falling outside the range of principled outcomes." Jilek v Stockson, 297 Mich.App. 663, 665; 825 N.W.2d 358 (2012).

Although trial courts have considerable discretion in determining whether a witness is qualified as an expert, courts must accurately apply the law in exercising their discretion. Gay, 295 Mich.App. at 291.

"In a medical malpractice case, plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal." Wischmeyer v Schanz, 449 Mich. 469, 484; 536 N.W.2d 760 (1995) (citations omitted); see also Kalaj v Khan, 295 Mich.App. 420, 429; 820 N.W.2d 223 (2012). "In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%." MCL 600.2912a(2). "Thus, to recover for the loss of an opportunity to survive or an opportunity to achieve a better result, a plaintiff must show that had the defendant not been negligent, there was a greater than fifty percent chance of survival or of a better result." Dykes v William Beaumont Hosp, 246 Mich.App. 471, 477; 633 N.W.2d 440 (2001).

In medical malpractice cases, expert testimony is required to (1) establish the applicable standard of care, and (2) demonstrate a breach of that...