Estate of Luella Ehrlinger v. Phillip a Dean Md ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
SHERRI WILSON, Personal Representative of the UNPUBLISHED
Estate of LUELLA EHRLINGER, Deceased, January 9, 2018
Plaintiff-Appellant,
v No. 334243
Saginaw Circuit Court
PHILLIP A. DEAN, M.D., and MID MICHIGAN LC No. 13-019719-NH
SURGICAL SPECIALISTS, P.C.,
Defendants-Appellees.
Before: O’CONNELL, P.J., and HOEKSTRA and SWARTZLE, JJ.
PER CURIAM.
Plaintiff appeals by delayed leave granted1 an order granting partial summary disposition
in favor of defendants, Phillip A. Dean, M.D. (Dean) and Mid Michigan Surgical Specialists P.C.
(MMSS), and denying plaintiff’s oral motion to amend her witness list to reinstate a general
surgery expert witness. We affirm.
I. BACKGROUND
This Court previously summarized the pertinent facts and procedural history as follows:
On July 3, 2009, the decedent, Luella Ehrlinger, was admitted to Covenant
Medical Center for a surgical procedure to remove a portion of her bowel
containing a malignant polyp. Defendant Phil[l]ip Dean, M.D., performed
surgery on Ehrlinger by removing a section of her bowel and reconnecting the
two adjacent sections. Plaintiff initially alleged that Dean did not perform the
procedure “adequately” because subsequent events determined that there was a
“leakage of bowel contents into the abdominal cavity” that Dean did not promptly
detect. Plaintiff alleged that Dean performed another surgery on Ehrlinger on
July 19, 2009, to remove a section of Ehrlinger’s then necrotic bowel.
1
Estate of Luella Ehrlinger v Phillip A Dean, MD, unpublished order of the Court of Appeals,
entered December 2, 2016 (Docket No. 334243).
-1-
Notwithstanding the second procedure, Ehrlinger’s health continued to
decline and she became septic. Ehrlinger remained in an intensive care unit until
August 3, 2009, when she was transferred out of the unit with Dean’s consent.
On August 4, 2009, Ehrlinger became unresponsive and suffered
cardiopulmonary arrest requiring resuscitation. Plaintiff alleged that Dean failed
to examine Ehrlinger at all on August 4, and that he did not cause any other
physician to examine her on his behalf. Plaintiff alleged that Ehrlinger was on
several medications and that she was particularly susceptible to the effects of the
medications because of her weakened condition and sepsis. Plaintiff alleged that
Ehrlinger’s medications, in combination with her weakened condition, resulting
from Dean’s failure to appropriately treat and monitor her, were a proximate
cause of her cardiopulmonary arrest. Ehrlinger’s health continued to deteriorate,
including brain injury and kidney failure. She died on September 7, 2009.
Defendants filed a motion for summary disposition under MCR
2.116(C)(7) and MCR 2.116(C)(8). They argued that plaintiff did not file an
affidavit of merit in compliance with MCL 600.2912d, which requires that the
physician signing the affidavit of merit must have board certification in the same
specialty as the defendant. Defendants asserted that the affidavit of merit
executed by Todd C. Campbell, M.D., was insufficient because Dean was board-
certified in colorectal surgery and general surgery, while Campbell was only
board-certified in general surgery. Defendants also argued that dismissal with
prejudice is appropriate because filing a defective affidavit of merit does not toll
the statute of limitations when an action is filed under the savings provision of
MCL 600.5856, and because plaintiff therefore had filed the case after the running
of the two-year statute of limitations.
Plaintiff responded by filing a motion to amend the affidavit under MCR
2.112 and MCR 2.118 and requested to additionally file the affidavit of Ralph
Silverman, M.D., a physician board-certified both in general surgery and in
colorectal surgery. Plaintiff also proposed to amend Dr. Campbell’s original
affidavit of merit by having Silverman sign the affidavit after adding a section
indicating that Silverman had read and agreed with the contents of Campbell’s
affidavit. Plaintiff also argued that Campbell’s affidavit was sufficient because
the alleged malpractice did not require consideration of the standard of care
specific to colorectal surgeons. Additionally, plaintiff filed a motion requesting
leave to amend the complaint to remove paragraphs relating to malpractice
stemming from the first surgery and to correct mistakes in the complaint. The
trial court denied defendant[s’] motion for summary disposition and granted
plaintiff leave to file the first amended complaint.
While defendants’ application for leave to appeal was pending in the
Supreme Court, they filed a motion for summary disposition and/or motion in
limine to preclude claims not supported by expert testimony. Plaintiff filed a
response brief in which she agreed that her expert testimony did not support the
malpractice claims against Dean relating to the first colorectal surgery, the alleged
failure to order imag[]ing studies after the first surgery, and any delay in
-2-
performing the second surgery. However, plaintiff asserted that expert testimony
did support the malpractice claim relating to Dean’s failure to monitor Ehrlinger
on August 4, the day she lost consciousness. Upon learning of the Supreme
Court’s order remanding this matter, the trial court stayed all trial court
proceedings until the completion of defendants’ appeal in this Court. [In re Estate
of Luella Ehrlinger, unpublished per curiam opinion of the Court of Appeals,
issued October 15, 2015 (Docket No. 320417), pp 2-3.]
This Court concluded that the affidavit of merit was not defective regarding the
allegations against Dr. Dean “concerning alleged failure to provide proper post-surgical care and
monitoring following the second surgery[.]” Id. at 6. On the basis of plaintiff’s concessions that
the affidavit did not support a malpractice theory based on the time period between the first and
second surgeries and the absence of allegations of malpractice during the surgeries themselves,
this Court determined that “plaintiff could have a reasonable belief that the most relevant
standard of care was that of a general surgeon, not a colorectal surgeon, relative to these
remaining allegations.” Id. at 5. This Court stated that “[g]oing forward below, plaintiff’s
malpractice claim is limited to the allegation that Dean failed to provide post-surgical care
following the second surgery or otherwise breached the standard of care applicable to general
surgery from August 4, 2009 to the decedent’s death.” Id. at 6. Accordingly, this Court
instructed the trial court to grant partial summary disposition “on plaintiff’s allegations of
malpractice related to Dean’s alleged conduct during or between the two surgeries[.]” Id.
On remand, the trial court accordingly ordered all claims against Dean and MMSS based
on conduct prior to August 4, 2009, dismissed with prejudice. Dean and MMSS then moved for
summary disposition pursuant to MCR 2.116(C)(10), arguing that plaintiff’s standard of care
expert, Dr. Silverman, was not qualified under MCL 600.2169 to testify about a general surgery
standard of care because the majority of his practice was not in general surgery. The trial court
granted defendants’ motion for summary disposition, agreeing with defendants that Dr.
Silverman was not qualified to testify about a general surgery standard of care.
Plaintiff subsequently moved to reinstate Dr. Campbell as her standard of care witness
because Dr. Campbell was qualified to testify as a general surgeon. The trial court denied this
motion as untimely.
II. STANDARD OF REVIEW
Plaintiff now challenges the grant of defendants’ motion for summary disposition and the
denial of her motion to reinstate Dr. Campbell as an expert witness. This Court generally
reviews the grant or denial of a motion for summary disposition de novo. Peters v Dep’t of
Corrections, 215 Mich. App. 485, 486; 546 NW2d 668 (1996). This Court also reviews matters
of statutory interpretation de novo. Tate v Detroit Receiving Hosp, 249 Mich. App. 212, 215; 642
NW2d 346 (2002). We review a trial court’s decision whether an expert witness is qualified to
testify for an abuse of discretion. Id. Similarly, this “Court will not disturb a trial court’s
decision regarding whether to permit a witness to testify, after a party has failed to comply with a
deadline for submission of a witness list, absent an abuse of discretion.” Carmack v Macomb Co
Community College, 199 Mich. App. 544, 546; 502 NW2d 746 (1993). The abuse of discretion
standard recognizes “that there will be circumstances in which there will be no single correct
-3-
outcome . . . .” Maldonado v Ford Motor Co, 476 Mich. 372, 388; 719 NW2d 809 (2006).
Accordingly, this Court defers to the trial court’s judgment if its decision is within the range of
principled outcomes. Id.
II. DISCUSSION
A. GENERAL SURGERY STANDARD OF CARE EXPERT
Plaintiff first argues that the trial court abused its discretion by determining that Dr.
Silverman was unqualified to testify at trial about the general surgery standard of care. We
disagree and conclude that the trial court correctly construed MCL 600.2169.
In relevant part, MCL 600.2169 states:
(1) In an action alleging medical malpractice, a person shall not give
expert testimony on the appropriate standard of practice or care unless the person
is licensed as a health professional in this state or another state and meets the
following criteria:
(a) If the party against whom or on whose behalf the testimony is offered
is a specialist, specializes at the time of the occurrence that is the basis for the
action in the same specialty as the party against whom or on whose behalf the
testimony is offered. However, if the party against whom or on whose behalf the
testimony is offered is a specialist who is board certified, the expert witness must
be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the
date of the occurrence that is the basis for the claim or action, devoted a majority
of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the
party against whom or on whose behalf the testimony is offered is licensed and, if
that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school
or accredited residency or clinical research program in the same health profession
in which the party against whom or on whose behalf the testimony is offered is
licensed and, if that party is a specialist, an accredited health professional school
or accredited residency or clinical research program in the same specialty. [MCL
600.2169(1)(a) and (b) (emphasis added).]
A “specialist can only devote a majority of his professional time to one specialty.” Woodard v
Custer, 476 Mich. 545, 560; 719 NW2d 842 (2006).
In this case, Dr. Silverman was board-certified in both general surgery and colorectal
surgery, and he testified that 70 to 80 percent of his practice for the preceding seven to eight
years was in colorectal surgery. Although Dr. Silverman matched defendant Dr. Dean’s board
certifications, Dr. Silverman is not qualified to testify about a general surgery standard of care
-4-
because the majority of his practice was not in general surgery. Accordingly, Dr. Silverman does
not meet the active clinical practice requirement for the relevant standard of care (general
surgery) under MCL 600.2169(1)(b)(i). Consequently, the trial court did not abuse its discretion
by determining that Dr. Silverman was not qualified to testify about the relevant standard of care.
Plaintiff argues that this Court’s prior opinion concerned only the affidavit of merit.
Plaintiff is correct that this Court only assessed the expert’s qualifications to sign the affidavit of
merit in its prior decision. However, plaintiff made concessions before the trial court and this
Court that limited plaintiff’s allegations of malpractice to postoperative care, reflecting a general
surgery standard of care, and agreed to the dismissal of any allegations related to the colorectal
surgeries. After remand, plaintiff filed a second amended complaint referring to the general
surgery standard of care as it related to Dr. Dean’s treatment following the second surgery
without reference to the surgeries themselves, in accordance with plaintiff’s position summarized
in this Court’s decision. Plaintiff’s theory of the case likewise limited the allegations to
postoperative care after the second surgery, although it referred to both the colorectal surgery
and general surgery standard of care without specifying which standard of care applied. Plaintiff
otherwise raised no objection to or sought to withdraw her concessions.
“The law of the case doctrine provides that a ruling by an appellate court with regard to a
particular issue binds the appellate court and all lower tribunals with respect to that issue.”
Driver v Hanley (After Remand), 226 Mich. App. 558, 565; 575 NW2d 31 (1997). The trial court
grounded its decision and reasoning in this Court’s prior determination that plaintiff’s remaining
claims were limited to allegations of a breach of the standard of care for general surgery. The
trial court properly followed this Court’s instructions reflecting plaintiff’s position.
B. PLAINTIFF’S REQUEST TO REINSTATE EXPERT
To remedy the deficiency in plaintiff’s expert’s qualifications, plaintiff belatedly
requested reinstatement of Dr. Campbell, the general surgeon who prepared the affidavit of
merit. We conclude that the trial court did not abuse its discretion by refusing this request.
First, plaintiff does not cite a single case, statute, or court rule in support of this
argument. If a party fails to provide legal support for its contention, “[t]his Court will not search
for authority either to sustain or reject a party’s position.” Schellenberg v Rochester, Michigan,
Lodge No 2225, of the Benevolent and Protective Order of Elks of the United States of America,
228 Mich. App. 20, 49; 577 NW2d 163 (1998). Nonetheless, we conclude that the trial court did
not abuse its discretion by refusing plaintiff’s request to replace her standard of care witness.
The trial court issued a scheduling order on April 1, 2016, after remand from this Court, ordering
the filing of the parties’ witness lists by May 2, 2016. Plaintiff’s final witness list included Dr.
Silverman, not Dr. Campbell. Plaintiff did not propose Dr. Campbell as a witness until after the
close of discovery and after the trial court signaled its agreement with defendants’ position that
plaintiff’s expert was not qualified, several months after this Court’s declaration that the standard
of care was for general surgery. Therefore, the trial court did not abuse its discretion by refusing
plaintiff’s request to reinstate Dr. Campbell as a witness.
-5-
We affirm.
/s/ Peter D. O’Connell
/s/ Joel P. Hoekstra
/s/ Brock A. Swartzle
-6-