Estate of Henry Gerow Jr v. Ronald L Thies Jr Md ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF HENRY GEROW, JR., by MARIE UNPUBLISHED
GEROW, Personal Representative, July 2, 2020
Plaintiff-Appellant,
v No. 348221
St. Clair Circuit Court
RONALD L. THIES, JR., M.D. and EMERGENCY LC No. 17-001458-NH
MEDICINE SPECIALISTS, PC,
Defendants-Appellees,
and
ST. JOHN RIVER DISTRICT HOSPITAL,
Defendant.
Before: GLEICHER, P.J., and SAWYER and METER, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff, the personal representative of the estate of the
decedent, Henry Gerow, Jr. (Gerow), appeals as of right an order granting summary disposition in
favor of defendants, Ronald L. Thies, Jr., M.D. (Dr. Thies), and Emergency Medicine Specialists,
PC (EMS).1 We affirm.
I. FACTUAL BACKGROUND
This action arises out of Gerow’s death of acute sepsis and pneumonia. On November 7,
2013, Gerow went to a facility owned by defendant, St. John River District Hospital (St. John), for
emergency treatment. Gerow was treated by Dr. Thies. Gerow went to the emergency room three
times in the week leading to his death, each time complaining of severe back pain from a work-
1
Plaintiff accepted a settlement from defendant, St. John River District Hospital; accordingly, St.
John River District Hospital does not participate in this appeal.
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related injury. When Dr. Thies saw Gerow, Gerow again complained that he was experiencing
severe back pain. Dr. Thies examined Gerow and surmised the pain was caused by a back injury
Gerow sustained at work. Dr. Thies gave Gerow an injection of Toradol and Dilaudid, and released
him from the emergency room without further treatment. Gerow died three days later, on
November 10, 2013.
Plaintiff filed a complaint against Dr. Thies, EMS, and St. John, alleging medical
malpractice. Plaintiff alleged that Dr. Thies failed to meet the applicable standard of care when
treating Gerow, who presented at the hospital three times for the same complaint of back pain over
a weeklong period. Plaintiff contended that, if Dr. Thies had performed a more thorough
examination, “abnormal imaging or lab tests would have resulted, which, more likely than not,
would have changed [Gerow’s] treatment, disposition, and outcome.” Plaintiff contended Gerow’s
death was a direct and proximate result of Dr. Thies’s negligence, and but for said negligence,
Gerow’s infection could have been timely diagnosed and treated. Plaintiff further alleged EMS
was vicariously liable for Dr. Thies’s negligence because EMS employed Dr. Thies.
Dr. Thies and EMS filed a motion for summary disposition, and argued that plaintiff failed
to establish a genuine issue of material fact regarding the element of causation. Dr. Thies and
EMS argued that deposition testimony given by one of plaintiff’s expert witnesses, Dr. Marc
Eckstein (Dr. Eckstein), indicated Gerow exhibited no classic clinical signs supporting a sepsis or
pneumonia diagnosis when he was treated by Dr. Thies, suggesting Dr. Thies did not violate the
applicable standard of care by failing to test for pneumonia or infection. Dr. Thies and EMS further
observed that deposition testimony from another of plaintiff’s expert witnesses, Dr. James Gordon
(Dr. Gordon), suggested it was medically impossible to determine when Gerow contracted
pneumonia and sepsis. Dr. Thies and EMS argued that no evidence directly supported plaintiff’s
argument that Gerow had pneumonia and sepsis when he was treated by Dr. Thies; consequently,
plaintiff could not show that Gerow would still be alive if Dr. Thies treated him for pneumonia
and sepsis on November 7, 2013. Dr. Thies and EMS asked the trial court to grant their motion
for summary disposition and dismiss plaintiff’s claims of negligence. The trial court agreed with
Dr. Thies and EMS, opining that “it is purely speculative as to whether or not any sign of a
pneumonia, a typical pneumonia—not blood borne pneumonia—would be present on that chest,
chest x-ray thereby necessitating treatment in the form of antibiotics or something else.” The trial
court entered an order granting summary disposition to Dr. Thies and EMS. This appeal followed.
II. CAUSATION
Plaintiff argues that the trial court erroneously ignored Dr. Eckstein’s expert testimony
regarding causation, and thus erred by granting summary disposition to Dr. Thies and EMS. We
disagree.
Dr. Thies and EMS moved for summary disposition under MCR 2.116(C)(10). This Court
reviews the grant or denial of a motion for summary disposition de novo. Value, Inc v Dep’t of
Treasury, 320 Mich. App. 571, 576; 907 NW2d 872 (2017). “A motion under MCR 2.116(C)(10)
tests the factual support for a claim and should be granted when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.” Anzaldua v Neogen
Corp, 292 Mich. App. 626, 630; 808 NW2d 804 (2011). A genuine issue of material fact “ ‘exists
when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue
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upon which reasonable minds might differ.’ ” Cox v Hartman, 322 Mich. App. 292, 299; 911 NW2d
219 (2017) (citation omitted).
In a medical malpractice action, plaintiff “bears the burden of proving (1) the applicable
standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4) proximate
causation between the alleged breach of duty and the injury.” Rock v Crocker, 499 Mich. 247, 255;
884 NW2d 227 (2016). This action concerns proximate causation. Proximate causation is
comprised of two distinct elements: (1) cause in fact, and (2) legal causation. Craig ex rel Craig
v Oakwood Hosp, 471 Mich. 67, 86-87; 684 NW2d 296 (2004). Specifically, plaintiff’s action
concerns the cause in fact prong of proximate causation. “The cause in fact element generally
requires showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have
occurred.” Id. (citation omitted). A plaintiff is required to “adequately establish cause in fact in
order for legal cause . . . to become a relevant issue.” Skinner v Square D Co, 445 Mich. 153, 163;
516 NW2d 475 (1994).
Plaintiff contends the trial court’s decision to grant summary disposition to Dr. Thies and
EMS indicates the trial court ignored deposition testimony from Dr. Eckstein. Plaintiff directs this
Court to various portions of Dr. Eckstein’s testimony, in which Dr. Eckstein testified Gerow likely
would have survived if his condition had been identified and treated by Dr. Thies. However,
plaintiff’s presentation of Dr. Eckstein’s testimony ignores that there was no evidence that Gerow
had pneumonia or a septic infection when he saw Dr. Thies. Plaintiff correctly argues that “[c]ause
in fact may be established by circumstantial evidence . . . .” Wiley v Henry Ford Cottage Hosp,
257 Mich. App. 488, 496; 668 NW2d 402 (2003). Nevertheless, “such proof must be subject to
reasonable inferences, not mere speculation.” Id. Nothing in Gerow’s hospital records indicated
that he was displaying symptoms typical of pneumonia or sepsis. For example, Dr. Eckstein
attested that the classic symptoms of pneumonia are “[f]ever, chills, cough, productive sputum,
chest pain, [and] shortness of breath,” but Gerow exhibited none of those symptoms when he was
treated by Dr. Thies. The trial court recognized that there was no direct causal connection to be
made between Dr. Thies’s treatment of Gerow and Gerow’s death.
Moreover, plaintiff’s presentation of Dr. Eckstein’s testimony ignores that Dr. Eckstein
agreed a chest x-ray may not have shown the presence of pneumonia. At Dr. Eckstein’s deposition,
the following exchange took place:
Q. How do you know [a chest x-ray] would have shown a pneumonia when
[Gerow] doesn’t have any of the signs of symptoms that are consistent and
compatible with pneumonia?
A. I can’t say for certain.
* * *
A. I can’t say with certainty . . . that the x-ray would have shown a
pneumonia, correct.
Contrary to plaintiff’s argument, Dr. Eckstein’s testimony was considered by the trial court, which
opined that it was “purely speculative as to whether or not any sign of a pneumonia . . . not blood
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borne pneumonia—would be present on that chest, chest x-ray thereby necessitating treatment in
the form of antibiotics or something else.”
Additionally, the trial court was aware that Dr. Gordon testified it was medically
impossible to determine whether Gerow had pneumonia or sepsis when Dr. Thies treated him. Dr.
Gordon testified that there was no reason for Dr. Thies to suspect that Gerow was suffering from
pneumonia or sepsis when he treated Gerow, because Gerow did not present with any symptoms
of pneumonia or sepsis. Dr. Thies was operating solely on the basis of Gerow’s complaint of pain
from a work-related back injury, and his treatment of Gerow was appropriate because of what
Gerow told him regarding the likely cause of his pain.
Ultimately, plaintiff has not presented evidence that would support the deduction that Dr.
Thies’s alleged medical neglect was a cause in fact of Gerow’s death, or that the trial court ignored
testimony from Dr. Eckstein regarding causation. It is undisputed that Dr. Thies treated Gerow on
November 7, 2013, and Gerow died of sepsis and pneumonia on November 10, 2013. However,
“[a]n explanation that is consistent with known facts but not deducible from them is impermissible
conjecture.” Wiley, 257 Mich. App. at 496. Plaintiff has failed to show a causal connection between
Dr. Thies’s treatment and Gerow’s death, which was acknowledged by the trial court when it ruled
in favor of Dr. Thies and EMS’s motion for summary disposition. In sum, the trial court did not
err by finding that plaintiff failed to establish proximate cause and subsequently granting Dr. Thies
and EMS’s motion for summary disposition.
Affirmed. Defendants may tax costs.
/s/ David H. Sawyer
/s/ Patrick M. Meter
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