Webster v. Osguthorpe

1

GIORGIO WEBSTER, Plaintiff-Appellee, v. DR. JEFFREY OSGUTHORPE and SUMMIT ORAL AND MAXILLOFACIAL SURGERY, PC, Defendants-Appellants.

Nos. 362891, 363747

Court of Appeals of Michigan

December 21, 2023

UNPUBLISHED

Macomb Circuit Court LC No. 2019-003783-NH

Before: JANSEN, P.J., and CAVANAGH and GADOLA, JJ.

PER CURIAM.

In these consolidated appeals, defendants, Dr. Jeffrey Osguthorpe and Summit Oral and Maxillofacial Surgery, P.C. ("Summit Oral Surgery"), appeal as of right a judgment for plaintiff, entered after a jury trial, awarding plaintiff damages of $565,000 in this dental malpractice action, and additionally awarding plaintiff attorney fees of $169,512.54 as case evaluation sanctions "under the pre-amendment version of MCR 2.403(O)." We reverse and vacate the award of case evaluation sanctions, but affirm in all other respects.

I. BACKGROUND

This action arises from an excisional biopsy procedure performed by Dr. Osguthorpe on plaintiff at the offices of Summit Oral Surgery in Clinton Township on April 20, 2018. During the procedure, plaintiff experienced hemorrhaging from an arteriovenous malformation (AVM) of the left lower mandible. Plaintiff was transported to Henry Ford Macomb Hospital and then airlifted to Henry Ford Hospital in Detroit where he underwent an emergency embolization procedure.

Plaintiff filed this action for medical malpractice against Dr Osguthorpe and asserted that Summit Oral Surgery was vicariously liable for Dr. Osguthorpe's malpractice. Following a three-day trial, a jury found that defendants were liable for malpractice and awarded plaintiff $68,000 in economic damages, $1,375,000 in past noneconomic damages, and $1,307,000 in future noneconomic damages. Under MCL 600.1483 the trial court capped the noneconomic damages at $497,000, and awarded plaintiff a judgment for $565,000.

Defendants moved for judgment notwithstanding the verdict or remittitur, arguing that plaintiff failed to present expert testimony establishing the applicable standard of care, and also failed to show that any breach of the standard of care by Dr. Osguthorpe was a proximate cause of plaintiff's injuries. In particular, defendants argued that the testimony of plaintiff's expert, Dr. Steven Wolf, failed to establish that he was familiar with the applicable standard of care and did not establish the source of his knowledge of the applicable standard of care. Defendants further argued that Dr. Wolf's testimony indicated that plaintiff would have experienced the same major bleeding episode regardless of what procedure Dr. Osguthorpe performed, and therefore, Dr. Osguthorpe's alleged malpractice was not a proximate cause of plaintiff's injuries. Defendants also argued that they were entitled to remittitur because the evidence did not support the jury's awards of damages. The trial court denied defendants' motion.

Plaintiff also moved for attorney fees as case evaluation sanctions under former MCR 2.403(O)(1). Although trial was held in April 2022, and MCR 2.403 had been amended, effective January 1, 2022, to eliminate case evaluation sanctions, plaintiff requested attorney fees under the preamendment version of MCR 2.403(O)(1) to avoid an injustice because plaintiff had accepted the case evaluation award and defendants rejected the award and refused to engage in settlement discussions before trial. The trial court determined that justice required that it apply former MCR 2.403(O) because plaintiff proceeded to trial in reliance on the former rule. Accordingly, it awarded plaintiff $169,512.54 in attorney fees as case evaluation sanctions.

II. MEDICAL MALPRACTICE

Defendants argue that plaintiff failed to present evidence to establish the applicable standard of care for an oral surgeon, and also failed to show that any alleged breach of the standard of care was a proximate cause of plaintiff's injuries, and therefore, the trial court erred by denying their motion for judgment notwithstanding the verdict. We disagree.

Preliminarily, we disagree with plaintiff that defendants waived their challenges to the adequacy of Dr. Wolf's testimony on the issues of the standard of care and proximate cause by failing to object to his testimony on these grounds at trial. Under Michigan's "raise or waive" rule, an issue not raised in the trial court is considered waived. Tolas Oil &Gas Exploration Co v Bach Servs &Mfg, LLC, __ Mich.App. __, __; __ N.W.2d __ (2023) (Docket No. 359090); slip op at 2. In this case, however, defendants raised their challenges to the substance of Dr. Wolf's testimony before the trial court in their motion for judgment notwithstanding the verdict, thereby preserving the issue. Glasker-Davis v Auvenshine, 333 Mich.App. 222, 227; 964 N.W.2d 809 (2020). Although plaintiff argues that defendants did not object to Dr. Wolf's testimony when it was offered at trial, defendants were not challenging the admissibility of Dr. Wolf's testimony in their motion for judgment notwithstanding the verdict, but rather, were challenging whether it was legally sufficient to establish a breach of the applicable standard of care and causation. Even if defendants' failure to object to Dr. Wolf's testimony at the time it was offered at trial could be viewed as a waiver of any claim that the testimony should not have been admitted, it does not operate as a waiver of any argument that the testimony was not legally sufficient to establish a breach of the applicable standard of care and causation. Because defendants raised these arguments below, and they were addressed and decided by the trial court, they are preserved.

This Court reviews a trial court's decision on a motion for judgment notwithstanding the verdict de novo. Dorsey v Surgical Institute of Mich, LLC, 338 Mich.App. 199, 223; 979 N.W.2d 681 (2021). This Court must review the evidence and all legitimate inferences arising from the evidence in the light most favorable to the nonmoving party. Wilkinson v Lee, 463 Mich. 388, 391; 617 N.W.2d 305 (2000). Judgment notwithstanding the verdict is appropriate only if the evidence so viewed fails to establish a claim as a matter of law. Id.

In a medical malpractice action, the plaintiff bears the burden of presenting evidence to satisfy the following elements:

(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. [Estate of Horn v Swofford, DO, 334 Mich.App. 281, 288; 964 N.W.2d 904 (2020), lv gtd on other grounds 982 N.W.2d 397 (2022) (quotation marks and citation omitted).]

In this case, defendants argue that plaintiff failed to present evidence to satisfy the first and fourth elements. We disagree.

A. STANDARD OF CARE

Defendants argue that Dr. Wolf's testimony was not sufficient to establish the applicable standard of care for an oral surgeon because Dr. Wolf did not explicitly state that he was personally knowledgeable and familiar with the standard of care, and he did not explain the source for his knowledge of the applicable standard of care. Viewing Dr. Wolf's testimony and legitimate inferences arising from his testimony, we disagree with defendants' argument.

MCL 600.2912a provides, in pertinent part:

(1) Subject to subsection (2), in an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:

(b) The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.

In Bahr v Harper-Grace Hosps, 448 Mich. 135, 138; 528 N.W.2d 170 (1995), our Supreme Court instructed that the standard of care for general practitioners "is that of the local community or similar communities," but the standard of care for a specialist is nationwide.

Defendants rely significantly on this Court's decision in Waatti v Marquette Gen Hosp, Inc, 122 Mich.App. 44; 329 N.W.2d 526 (1982),^[1] in support of their argument. In that case, the plaintiff suffered an epileptic seizure and was transported to a hospital by ambulance. Id. at 46. The plaintiff suffered a fractured shoulder while being treated in the hospital emergency room. Id. at 47. At trial, the plaintiff presented the testimony of two orthopedic surgeons, one of whom was not qualified as an expert in emergency medicine and testified at trial that his experience with patients suffering seizures was limited to the field of orthopedics. Id. at 47. The second witness was not qualified as an expert "and was never asked about the standard of care applicable to emergency room treatment of seizure patients." Id. This Court affirmed the trial court's decision to direct a verdict in favor of the defendants for failure to establish the standard of care applicable to the emergency room treatment of a seizure patient. Id. at 48. This Court stated that "[a]lthough a witness may qualify as an expert by virtue of experience, knowledge, skill, training, or education, he must in all cases explicitly state his familiarity with the appropriate standard of care applicable in a given situation." Id. (emphasis added). Defendants rely on the emphasized statement to argue that they were entitled to a directed verdict because Dr. Wolf never expressly announced that he was familiar with the applicable standard of care for an oral surgeon. However, the statement in Waatti must be understood in context.

In Waatti, not only were the physicians who testified for the plaintiff not asked if they were...