Zehel v. Nugent

BETHANY ZEHEL, Individually and as Personal Representative of the ESTATE OF ROWYN VASQUEZ, Plaintiff-Appellee, v. CLARK EDWARD NUGENT, M.D., DEBORAH BERMAN, M.D., JUSTIN JUNN, M.D., ALICE MAY CHI, M.D., and ANGELA SIMMEN KELLEY, M.D., Defendants-Appellants.

Nos. 357511, 358134

Court of Appeals of Michigan

December 1, 2022

Washtenaw Circuit Court LC No. 19-000388-NH

Before: Ronayne Krause, P.J., and Jansen and Swartzle, JJ.

RONAYNE KRAUSE, P.J.

In this medical malpractice action under the wrongful-death act, MCL 600.2922, defendants appeal by leave granted^[1] three orders of the trial court denying, in relevant part, their motions for summary disposition. In Docket No. 357511, the trial court denied defendants' motion for summary disposition pursuant to MCR 2.116(C)(8) (failure to state a claim upon which relief can be granted) as to plaintiff's claims for lost future earnings. In Docket No. 358134, the trial court denied in part two motions for summary disposition pursuant to MCR 2.116(C)(10) (no genuine issue of material fact) regarding defendants' assertion that plaintiff failed to provide adequate expert testimony. We consolidated the two appeals. We now affirm in part, reverse in part, and remand for further proceedings.

I. BACKGROUND

Defendants are medical doctors who specialize in obstetrics and gynecology. Defendants were involved in the Cesarean section delivery of plaintiff's twins. One of the twins, Rowyn, did not survive. Plaintiff commenced claims for "medical negligence" against each of the defendants. Very generally, plaintiff contended that she was admitted to the hospital for preterm ruptures of the membranes of both twins, and although their "fetal monitor strips were reassuring at the time of admission," an ultrasound revealed that "Twin B" was in a breech position and would require a C-section once active labor began. However, defendants allegedly delayed in performing a C-section following the commencement of labor and failed to properly monitor plaintiff's progress. It was eventually discovered that "Twin B" was "in a back down traverse lie and unable to safely be delivered vaginally," by which time "Rowyn's head had become deeply wedged in Bethany's pelvis." It took eight minutes and considerable force to extract Rowyn, during which time Rowyn became hypoxic. Rowyn was intubated shortly thereafter. However, Rowyn suffered a seizure about two hours later, and it was determined that Rowyn had suffered extensive intracranial bleeding and two skull fractures. Following an assessment by neurologists that Rowyn "had suffered a severe neurologic injury at birth from which she would not recover," Rowyn was removed from life support and died.

One of the issues significant to this appeal is that, during the delivery, it was noted that "excessive uterine tone" prevented Rowyn from being elevated. Plaintiff's experts agreed that the delivery was "ultimately complicated by excessive uterine tone." "Tone" generally refers to "the tension present in resting muscles." Stedman's Medical Dictionary (26^th ed). "Excessive uterine tone" was explained by the experts to be synonymous with "hypertonic uterus" or "a Bandl's ring." A Bandl's ring, itself synonymous with a pathologic retraction ring, is "a constriction located at the junction of the thinned lower uterine segment with the thick retracted upper uterine segment, resulting from obstructed labor; this is one of the classic signs of threatened rupture of the uterus." Id. More generally, the phenomenon was explained to be "titanic contractions" of the uterus that preclude manipulation of the uterus or the baby. As will be discussed, at issue is not the nature of excessive uterine tone, but rather its causes and predictability.

Following the trial court's grant of partial summary disposition in favor of defendants,^[2] the following claims against each remain:

b. Perform and appreciate a thorough history and physical examination and reevaluate the patient's condition at regular and proper intervals; c. Educate and supervise any and all health care professionals providing care and/or treatment to Bethany Zehel, including but not limited to, resident physicians and/or nurses;^[3]

d. Personally examine and reevaluate Bethany's condition and the progress of labor at regular and proper intervals;

i. Perform vaginal exams at appropriate and regular intervals to assess progress of labor;

j. Monitor timing and intensity of contractions at appropriate intervals to assess progress of labor;

k. Recognize when active progression of labor has begun and a C-section can safely be performed;

l. Advise Bethany that a C-section is needed to deliver her baby and preserve fetal well-being;

m. Perform a C-section without delay and complication;

q. Provide appropriate neonatal resuscitation at birth without unnecessary delay and/or arrange for an appropriately trained medical professional, including, but not limited to, a pediatrician or neonatologist, to be present at the time of delivery to effectively resuscitate newborn;

r. Any and all acts of negligence as identified through additional discovery.

In Docket No. 358134, defendants appeal the trial court's denial of partial summary disposition specifically as to allegation (q), contending that plaintiff failed to provide any expert testimony that was critical of their efforts at resuscitating Rowyn. Also in Docket No. 358134, defendants appeal the trial court's denial of their motion for summary disposition regarding proximate causation, contending that plaintiff failed to provide expert testimony to the effect that excessive uterine tone could be predicted. In Docket No. 357511, defendants argue that, as a matter of law, plaintiff cannot recover damages under the wrongful-death act under the circumstances of this case.

II. STANDARD OF REVIEW

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). When reviewing a motion under MCR 2.116(C)(10), which tests the factual sufficiency of the complaint, this Court considers all evidence submitted by the parties in the light most favorable to the non-moving party and grants summary disposition only where the evidence fails to establish a genuine issue regarding any material fact. Id. at 120. A motion brought under MCR 2.116(C)(8) should be granted only where the complaint is so legally deficient that recovery would be impossible even if all well-pleaded facts were true and construed in the light most favorable to the non-moving party. Id. at 119. Only the pleadings may be considered when deciding a motion under MCR 2.116(C)(8). Id. at 119-120. Whether a particular kind of damages is recoverable for a given cause of action is a question of law, which we review de novo. See Price v High Pointe Oil Co, Inc, 493 Mich. 238, 242; 82 N.W.2d 660 (2013). The interpretation and application of statutes, rules, and legal doctrines is reviewed de novo. Estes v Titus, 481 Mich. 573, 578-579; 751 N.W.2d 493 (2008). Our review of a trial court's decision regarding a motion for summary disposition is generally restricted to the record as of the time of the trial court's ruling. Quinto v Cross & Peters Co, 451 Mich. 358, 366 n 5; 547 N.W.2d 314 (1996); Peña v Ingham Co Road Comm, 255 Mich.App. 299, 313 n 4; 660 N.W.2d 351 (2003).

III. WRONGFUL DEATH DAMAGES

In Docket No. 357511, defendants argue that because Rowyn had no dependents or spouse, and Rowyn was not providing support to any other person, plaintiff may not recover damages for Rowyn's potential future earnings. Defendants also argue that any calculation of potential future wages for an infant who was born ten weeks premature and who died a few weeks after birth is necessarily impermissibly speculative. We disagree with the former argument, in part because this wrongful death action is fundamentally to recover Rowyn's lost future earning potential rather than specifically Rowyn's lost future wages. However, under the facts of this case, we agree with the latter argument that Rowyn's lost future earning potential is speculative.

Pursuant to MCL 600.2921, "[a]ll actions and claims survive death." However, "[a]ctions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to [the wrongful-death statute, MCL 600.2922]." Id. Such claims may be brought by the personal representative of the decedent's estate to the same extent the decedent could have brought those claims if the decedent had survived. MCL 600.2922(1) and (2). The decedent's parents are within the class of persons entitled to damages under the wrongful-death statute. MCL 600.2922(3)(a). Pursuant to MCL 600.2922(6),

In every action under this section, the court or jury may award damages as the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased during the period intervening between the time of the injury and death; and damages for the loss of financial support and the loss of the society and companionship of the deceased.

Our Supreme Court has explained that "the wrongful-death act is essentially a 'filter' through which the underlying claim may proceed," noting that a wrongful-death action is not created upon the death of the decedent, but rather survives the death of the decedent. Wesche v Mecosta Co Road Comm, 480 Mich. 75, 88-89; 746 N.W.2d 847 (2008).

A. ENTITLEMENT TO DAMAGES

In Wesche, our Supreme Court explained...