PER CURIAM.
In this medical malpractice action, plaintiff appeals by right an order reflecting the jury's verdict of "no cause of action" as to any of the defendants. Finding no errors warranting reversal, we affirm.
The decedent, Patricia Watland (Patricia), died two days following arthroscopic knee surgery to repair a torn meniscus. Her estate ("plaintiff") brought a medical malpractice action against a number of defendants, including the surgeon who performed the surgery, Marc J. Milia, M.D. (Milia), as well as the Dearborn Surgery Center ("surgery center" or "DSC") where the surgery took place, and Ali J. Manns, R.N. (Manns), a nurse who spoke with Patricia the day after her surgery.
Patricia died as a result of a pulmonary embolism (PE) most likely brought on by a deep vein thrombosis (DVT). Plaintiff alleged that Milia was negligent for failing to recognize that Patricia had a number of risk factors making her more susceptible to DVT and that Milia could have taken a number of prophylactic steps — both before and after the surgery — to prevent the DVT. Plaintiff alleged that Manns was negligent in failing to direct Patricia to the emergency room after learning that Patricia had a swollen foot and a cold calf. Manns had called Patricia the day after her surgery to see how she was doing and plaintiff alleged that Manns failed to recognize the seriousness of the situation. In addition to the hotly debated standard of care testimony, a major issue at trial was whether a post-operative call sheet was a "medical record." There was no dispute that, after learning that Patricia had died, Manns went back and added information to the call sheet. Specifically, Manns added that she told Patricia that if her symptoms got worse or did not improve, she should call her doctor or take herself to the emergency room. Following the evidence, the jury returned a verdict of no cause of action against any of the defendants.
Plaintiff argues that the trial court erred when it struck portions of testimony of its causation expert, Dr. Robert Hines. Conceding that Hines was a causation expert, plaintiff nevertheless alleges that defendants "opened the door" to standard of care testimony and that the trial court erred when it precluded plaintiff from asking follow-up questions on re-direct.
"[T]he qualification of a witness as an expert and the admissibility of the testimony of the witness are in the trial court's discretion and we will not reverse on appeal absent an abuse of that discretion. An abuse of discretion exists if the decision results in an outcome outside the range of principled outcomes." Surman v Surman, 277 Mich.App. 287, 304-305; 745 N.W.2d 802 (2007).
In order for a medical malpractice plaintiff to prevail, she must prove a number of elements:
Proximate cause involves both the "cause in fact" and the "legal cause." Skinner v Square D Co, 445 Mich. 153, 162-63; 516 N.W.2d 475 (1994). The first requires a showing that "but for" defendants' action, plaintiff would not have been injured whereas the latter focuses on foreseeability and whether a defendant should be held legally responsible for such consequences. Id. "A plaintiff must adequately establish cause in fact in order for legal cause or `proximate cause' to become a relevant issue." Id.
Hines testified only as to the "cause in fact" of Patricia's death. He explained how a PE is formed and how it can be fatal. All of the parties agree that Hines was a causation expert and was not offered to testify regarding standard of care. In fact, under MCL 600.2169(1)(a), he was not qualified to offer standard of care testimony. "[I]f a defendant physician is a specialist, the plaintiff's expert witness must have specialized in the same specialty as the defendant physician at the time of the alleged malpractice." Woodard v Custer, 476 Mich. 545, 560-61; 719 N.W.2d 842 (2006).
Plaintiff argues that although Hines was not qualified to offer an opinion as to the standard of care, defense counsel "opened the door" to such questions during cross-examination when defense counsel questioned Hines about whether a PE can occur even in the absence of negligence. Because Hines's deposition was played for the jury in lieu of his testimony at trial, the parties and the trial court were able to discuss and exclude the evidence prior to its presentation. Defense counsel had questioned Hines about whether it was possible to have a PE in the absence of negligence:
The trial court sustained defense counsel's objection to the following exchange during re-direct examination:
BY MR. HAFELI:
BY MR. HAFELI:
Plaintiff complains that the jury was deprived of Hines's opinion that this was not a case in which a bad result came about in the absence of negligence. It cites to a number of cases in which otherwise inadmissible evidence may be admitted and pursued where the opposing party "opens the door" or makes it an issue in the case. However, defense counsel did not open the door to otherwise inadmissible standard of care testimony. Instead, defense counsel merely asked Hines whether it was possible to have a bad result in the absence of negligence, which touches on the standard jury instruction for "medical uncertainty":
Defense counsel's questioning did not touch upon what a reasonable orthopedic surgeon would have done, but whether a bad medical outcome can result in the absence of negligence. As such, the door was not opened for plaintiff's attorney to question Hines about whether Milia had, in fact, breached the standard of care.
Moreover, contrary to plaintiff's argument, the jury was not deprived of Hines's opinion regarding the effect of Milia's actions on Patricia's death. Prior to the above exchanges, plaintiff's counsel had questioned Hines:
Therefore, contrary to plaintiff's contention, the jury heard that the outcome in this case may have been preventable.
The trial court did not abuse its discretion when it struck Hines's standard of care testimony because he was not qualified to offer an opinion regarding Milia's treatment. Defense counsel did not open the door to such testimony by simply asking Hines whether a pulmonary embolism may result in the absence of negligence. In any event, the jury heard Hines's testimony that Patricia's pulmonary embolism may have been avoidable.
Claims of instructional error are generally reviewed de novo. Cox v Bd of Hosp Managers for City of Flint, 467 Mich. 1, 8; 651 N.W.2d 356 (2002). However, a trial court's determination whether a standard instruction was applicable and accurate is reviewed for an abuse of discretion. Moore v Detroit Entertainment, LLC, 279 Mich.App. 195, 223; 755 N.W.2d 686 (2008). Additionally, "when the standard jury instructions do not adequately cover an area and a party requests a supplemental instruction, the trial court is obligated to give the instruction if it properly informs the jury of the applicable law and is supported by the evidence." Silberstein v Pro-Golf of Am, Inc, 278 Mich.App. 446, 451; 750 N.W.2d 615 (2008). That decision, is likewise "within the trial court's discretion." Id.
Plaintiff argues that the trial court violated MCR 2.513(P) when it refused the jury's request for a copy of Hines's testimony.
A trial court's decision whether to provide evidence that the jury requested during deliberations is reviewed for an abuse of discretion. People v Howe, 392 Mich. 670, 677; 221 N.W.2d 350 (1974).
MCR 2.513(P) provides:
Plaintiff argues that the trial court violated MCR 2.513(P) when it "refused" to provide Hines's testimony. However, plaintiff starts with the false premise that the trial court "refused" to provide the jurors Hines's testimony. The trial court did not refuse anything. Instead, upon realizing that it had provided an incomplete instruction under M Civ JI 4.11
Here, it is clear that the trial court's instruction complied with the court rule as it did not foreclose the opportunity to review the testimony at a later time.
Plaintiff argues that the trial court erred when it refused to instruct the jury on M Civ JI 12.01.
Jury instructions "should include all the elements of the plaintiff's claims and should not omit material issues, defenses, or theories if the evidence supports them." Zaremba Equipment, Inc v Harco Nat'l Ins Co, 280 Mich.App. 16, 26; 761 N.W.2d 151 (2008). MCR 2.512(D)(2) provides:
However, "it is error to instruct a jury about an issue unsustained by the evidence or the pleadings." Murdock v Higgins, 454 Mich. 46, 59; 559 N.W.2d 639 (1997).
M Civ JI 12.01 provides:
The footnote to the instruction provides, in relevant part:
The statute plaintiff's attorney believed that Manns violated was MCL 750.492a, a criminal statute that provides, in part:
The trial court did not abuse its discretion when it declined to instruct the jury on M Civ JI 12.01. According to the footnote, the instruction should only be given if plaintiff has alleged a statutory violation as a ground for negligence and violating the statute was a proximate cause of Patricia's death. Plaintiff alleges that Manns was negligent in failing to direct Patricia to an emergency room upon hearing her symptoms, instead telling Patricia to elevate the leg. Manns's documentation of the conversation (or her addition/alteration) did not cause Patricia's death. At most, the addition might reflect a "consciousness of guilt", which plaintiff pursued at length during trial. This is simply not a situation for which the jury instruction was intended. Instead, it is better applied to scenarios such as traffic accidents where one driver's moving violation may allow the jury to infer that the driver was negligent.
Even when there is instructional error, reversal is not required unless failure to do was would be inconsistent with substantial justice. MCR 2.613(A). "[T]here is no error requiring reversal if, on balance, the theories of the parties and the applicable law were adequately and fairly presented to the jury." Murdock, 454 Mich at 59. "Reversal is not warranted when an instructional error does not affect the outcome of the trial." Jimkoski v Shupe, 282 Mich.App. 1, 9; 763 N.W.2d 1 (2008). It cannot be said that the trial court's decision not to instruct the jury on M Civ JI 12.01 had any impact on the outcome of the trial. Plaintiff spent an inordinate amount of time at trial trying to show that Manns had altered the record for some nefarious purpose. But, again, the "alteration" of Patricia's medical record (if it was so) had no bearing on the proximate cause of her death. Manns's alleged negligence was in failing to instruct Patricia to go to the hospital upon hearing her symptoms. Her notation on the call sheet had no bearing on whether her advice was negligent.
Plaintiff argues that the trial court erred when it refused to give plaintiff's proposed special jury instruction regarding Manns's alteration of the medical record.
Plaintiff proposed the following special instruction, based on New Jersey's Standard Civil Jury Instruction 5.50H:
The trial court did not abuse its discretion in declining to give plaintiff's requested special jury instruction. Michigan does not have a standard instruction similar to New Jersey's, but it does have an instruction that allows for a negative inference when evidence has been destroyed. M Civ JI 6.01(a) provides:
The instruction entitles the jury to draw an adverse inference only when "(1) the evidence was under the party's control and could have been produced; (2) the party lacks a reasonable excuse for its failure to produce the evidence; and (3) the evidence is material, not merely cumulative, and not equally available to the other party." Ward v Consolidated Rail Corp, 472 Mich. 77, 85-86; 693 N.W.2d 366 (2005). "It is well settled that missing evidence gives rise to an adverse presumption only when the complaining party can establish intentional conduct indicating fraud and a desire to destroy evidence and thereby suppress the truth." Id. at 84.
No evidence was lost or destroyed. Manns readily admitted that she made additions to the call sheet. The sheet itself remained intact and available for analysis. It was not thrown away, shredded, suppressed or destroyed. The original call sheet was intact and made available to plaintiff's handwriting experts.
Plaintiff's arguments are two-fold. It first argues that the trial court erred in failing to read the jury's question into the record and inviting the attorneys to respond. It then argues that the trial court erred in failing to comply with the "Notes on Use" in M Civ JI 60.02.
Regarding the first of these two arguments, MCR 2.513(N)(2) provides, in relevant part:
There is no support for plaintiff's contention that the trial court failed to comply with the court rule. A review of the record reveals that although the trial court did not read the jury's "question" verbatim, it clearly informed the parties that the jury had indicated it was at an impasse. The trial court also clearly invited the attorneys' comments on how to respond.
Ultimately, the trial court instructed the jury:
The trial court's instruction was in keeping with Michigan's standard jury instruction to deadlocked juries. M Civ JI 60.20 provides:
The trial court declined to give the bracketed portion, which is based on MCR 2.513(N)(4):
The "Notes on Use" in the model instruction adds: "The Court may then make inquiry of the foreperson regarding the jury's ability to reach a verdict and, if further deliberations appear warranted, may give the instruction and return the jury to the jury room."
Plaintiff fails to recognize that "[a] model jury instruction does not have the force and effect of a court rule." MCR 2.512(D)(1). Moreover, "use of the term "may" instead of the term "shall" indicates discretionary, rather than mandatory, action." Murphy v Michigan Bell Tel Co, 447 Mich. 93, 100; 523 N.W.2d 310 (1994). Finally — and most importantly — plaintiff fails to acknowledge that the jury, in fact, successfully reached a verdict within one hour of the trial court's instruction. Therefore, the trial court's failure to ask the foreperson whether further deliberations would be warranted is of no moment.
Finally, plaintiff raises a number of separate —yet related — issues. Plaintiff argues that the surgery center's informed consent contains false statements of fact and law because the form indicates that the surgeons are independent contractors but the surgery center and its physicians are actually involved in a joint venture. Plaintiff contends that Milia's ownership interest results in the surgery center being responsible for Milia's decisions. Plaintiff believes that the jury should have been able to decide whether these misrepresentations vitiated Patricia's consent to surgery and that the trial court erred in excluding evidence regarding Milia's ownership interest.
These issues were addressed at hearings on defendants' motion for summary disposition and defendants' motion in limine. A trial court's decision on a motion for summary disposition is reviewed de novo on appeal. Maiden v Rozwood, 461 Mich. 109, 118; 597 N.W.2d 817 (1999). A trial court's decision whether to admit evidence is reviewed for an abuse of discretion. Edry v Adelman, 486 Mich. 634, 639; 786 N.W.2d 567 (2010).
The informed consent provides:
Plaintiff concedes that Milia is not an employee of the surgery center but claims that Milia is involved in a joint venture and is part owner of the surgery center. Plaintiff argues that, as an owner, Milia's negligence is imputed on to the surgery center. Plaintiff cites MCL 333.20813(a) of the public health code, MCL 333.201 et seq:
However, as the trial court and defendants aptly note, an identical provision in the public health code applies to hospitals:
Our Court has held that § 333.21513(a) does not create a private cause of action. Fisher v WA Foote Mem Hosp, 261 Mich.App. 727, 730; 683 N.W.2d 248 (2004). There is no reason for surgical centers to be treated differently. Moreover, Grewe v Mt Clemens Gen Hosp, 404 Mich. 240, 250; 273 N.W.2d 429 (1978), confirms that hospitals are not vicariously liable for the negligence of a physician who is an independent contractor and uses the hospital to provide treatment unless the patient looked to the hospital to provide medical care. There is no reason to treat surgery centers differently. Moreover, in denying plaintiff's motion for a new trial, the trial court noted: "Plaintiff's arguments that the negligen[ce] of the physicians is imputable to the DSC and other joint ventures is irrelevant where the jury has found no negligence." We agree. Plaintiff's claim that Patricia's consent was vitiated because of factual and legal misstatements in the informed consent must fail based on counsel's acknowledgement that Milia's ownership interest was, in fact, stated in the patient handbook and at the reception desk. Plaintiff's agency arguments were never pleaded in the trial court and he has not demonstrated how the public health code changes the well-established rule that hospitals are not liable for doctors who use the hospital as a situs for patient care. More importantly, in the face of the jury's verdict of no negligence, vicarious liability has no application.
Affirmed. Defendants may tax costs as the prevailing party. MCR 7.219.
