Vance Petretis v. West Shore Medical Center

STATE OF MICHIGAN
COURT OF APPEALS
VANCE PETRETIS, UNPUBLISHED
June 12, 2018
Plaintiff-Appellee,
v No. 337641
Manistee Circuit Court
WEST SHORE HEALTHCARE CENTER, LC No. 15-015511-NH
Defendant-Appellant.
Before: O’BRIEN, P.J., and CAVANAGH and STEPHENS, JJ.
PER CURIAM.
Defendant appeals by leave granted1 an order denying its motion for summary disposition
under MCR 2.116(C)(10) in this medical malpractice case. We reverse and remand for entry of
an order granting defendant’s motion.
This case arises from complications plaintiff experienced after a computed tomography
angiography (CTA) was performed when plaintiff sought treatment for complications from a
possible spider bite on his right thumb. The parties agree that during the CTA, some of the
contrast material “extravasated,” or escaped from plaintiff’s vein into his soft tissue. After the
extravasation occurred, plaintiff developed compartment syndrome and had to have emergency
surgery. Plaintiff alleges that Donald Miller, the radiology technologist who performed his CTA,
breached the standard of care by allowing so much contrast material to extravasate, and that his
breach caused plaintiff’s compartment syndrome and other serious injuries. Plaintiff avers that
“[i]schemic damage was done to the tissue, vascular system, and nerve structures” of his left arm
in connection with the CTA, and that defendant’s actions led to delay of treatment for the
original injury to his right thumb, resulting in partial amputation.
During the discovery period, plaintiff’s sole expert was Darlene Perelka, a radiology
technologist. Perelka testified that extravasation to the degree experienced by plaintiff does not
occur in the absence of a breach, but that extravasation can occur even when the standard of care
1
Petretis v West Shore Med Ctr, unpublished order of the Court of Appeals, entered June 1, 2017
(Docket No. 337641).
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is not breached. However, Perelka also testified that she was not qualified to give an opinion
regarding causation, and that a physician would need to testify about that issue.
Defendant moved for summary disposition under MCR 2.116(C)(10). Defendant argued
that plaintiff failed to present evidence that Miller breached the standard of care and failed to
present expert testimony regarding causation. Defendant further argued that, even if Miller
breached the standard of care, Perelka’s testimony was not sufficient to establish causation.
Plaintiff responded that his medical records indicated that the compartment syndrome he
developed was from an “extravasation type injury” and cited testimony from Perelka that, if
Miller had followed the standard of care, less contrast material would have extravasated.
Plaintiff did not include any other testimony regarding whether a breach of the standard of care
was the “but for” cause of his injury. Plaintiff also argued that it was “safe to assume” that Dr.
Mark Leslie, who performed an “incision and fasciotomy” of plaintiff’s arm because of “[a]cute
compartment syndrome of the left hand and forearm from extravasation type injury,” would
testify that the extravasation and the compartment syndrome were related. Plaintiff based this
argument on his medical records and an assumption that if Leslie was planning to testify
otherwise, he would have mentioned that in an affidavit submitted with defendant’s motion. In
the affidavit Leslie stated that there was “no basis” to believe that the partial amputation of
plaintiff’s thumb was connected to the CTA procedure. The affidavit focused on the amputation.
The only mention of compartment syndrome was a statement that compartment syndrome is “a
known complication of the CTA procedure.”
The trial court denied defendant’s motion, holding that Perelka’s testimony was sufficient
to create genuine issues of material fact about whether defendant breached the standard of care
and whether that breach was the “but for” cause of plaintiff’s injuries.
On appeal, defendant argues that plaintiff failed to present sufficient evidence
establishing the existence of a material factual dispute regarding the causation element of his
medical malpractice claim. We agree.
We review de novo a lower court’s decision on a motion for summary disposition under
MCR 2.116(C)(10). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). A motion
brought under MCR 2.116(C)(10) “tests the factual support of a plaintiff’s claim.” Spiek v Dept
of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The moving party must identify the
matters that have no disputed factual issues, and has the initial burden of supporting its position
with documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). The party opposing the motion must then establish by evidentiary materials that a
genuine issue of disputed fact exists. Id. at 362-363. After considering the documentary
evidence submitted in the light most favorable to the nonmoving party, the court determines
whether a genuine issue of material fact exists to warrant a trial. Walsh v Taylor, 263 Mich App
618, 621; 689 NW2d 506 (2004).
In a medical malpractice action, the “plaintiff bears the burden of proving: (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.” Wischmeyer v Schanz, 449
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Mich 469, 484; 536 NW2d 760 (1995). “Failure to prove any one of these elements is fatal” to a
plaintiff’s case. Id.To establish proximate causation, the plaintiff must show both cause in fact and legal
cause. Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). To establish “cause in
fact,” a plaintiff must produce “substantial” evidence showing that injury would not have
occurred “but for” the defendant’s actions. Skinner v Square D Co, 445 Mich 153, 163-165; 516
NW2d 475 (1994). To establish “legal cause,” or “proximate cause,” we examine whether the
consequences of the action were foreseeable and whether “defendant should be held legally
responsible for those consequences.” Id. at 163.
In the context of medical malpractice, a plaintiff must prove that the defendant’s actions
“more probably than not” were the proximate cause of his or her injury. MCL 600.2912a(2).
Connection between the defendant’s conduct and the plaintiff’s injury must be more than
speculative in order to show causation. Craig, 471 Mich at 93. Additionally, expert testimony is
required to show causation in a medical malpractice case. Teal v Prasad, 283 Mich App 384,
394; 772 NW2d 57 (2009). This Court has held that summary disposition was properly granted
when deposition testimony of the plaintiff’s sole expert witness “failed to establish the requisite
causal link” between the plaintiff’s injury and the defendant’s conduct. Dykes v William
Beaumont Hosp, 246 Mich App 471, 478; 633 NW2d 440 (2001).
In this case, there is no testimony from an expert that plaintiff’s compartment syndrome
would not have occurred “but for” Miller’s alleged breach of the standard of care. Perelka is
plaintiff’s sole expert witness. She testified that the degree of extravasation that plaintiff
experienced would not have occurred if Miller had not breached the standard of care. However,
Perelka also testified that extravasation can occur even in the absence of a breach of the standard
of care. Perelka further testified that she was not qualified to give an opinion regarding
causation. At most, Perelka’s testimony is that “but for” Miller’s breach of the standard of care,
there would have been less extravasation, not that compartment syndrome would not have
developed.
It is true that plaintiff has multiple doctors on his witness list who were involved in his
treatment. However, plaintiff has failed to provide any affidavits or testimony from these
doctors about what their testimony would be at trial. The only evidence in the record to indicate
causation comes from plaintiff’s medical records, noting that plaintiff’s diagnosis was “[a]cute
compartment syndrome of the left hand and forearm from extravasation type injury.” However,
Leslie’s affidavit also states that compartment syndrome is a “known complication of the CTA
procedure.”
Plaintiff refers to Leslie’s affidavit in support of his position. Plaintiff asserts that it is
“safe to assume” that Leslie would testify that the extravasation and emergency surgery were
related. Plaintiff argues that if Leslie planned to testify otherwise, he would have said so in his
affidavit. However, our Supreme Court has expressly disavowed the tenet that a “mere
possibility” of the presentation of evidence at trial is sufficient to survive a motion for summary
disposition. Maiden v Rozwood, 461 Mich 109, 121; 597 NW2d 817 (1999). In Maiden, our
Supreme Court specifically held that “[a] litigant’s mere pledge to establish an issue of fact at
trial cannot survive summary disposition under MCR 2.116(C)(10).” Id. Once defendant met its
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burden under MCR 2.116(C)(10) by demonstrating that plaintiff’s evidence was insufficient to
establish causation, an essential element of his claim, it was incumbent on plaintiff to present
documentary evidence establishing the existence of a material factual dispute on the issue of
causation to avoid summary disposition. See Lowrey v LMPS & LMPJ, Inc, 500 Mich 1, 7; 890
NW2d 344 (2016), quoting Quinto, 451 Mich at 362-363. Moreover, even if Leslie would testify
that the compartment syndrome was related to the extravasation, plaintiff has provided no
“specific facts” to show that compartment syndrome would not have developed “but for”
defendant’s negligence. See id. at 362.
In summary, plaintiff failed to present sufficient evidence to establish that a material
factual dispute existed on the issue of causation, i.e., his injuries would not have occurred “but
for” defendant’s negligence. The mere possibility that testimony at trial may establish causation
is insufficient. See Maiden, 461 Mich at 121. Accordingly, defendant’s motion for summary
disposition should have been granted.
Reversed and remanded for entry of an order granting defendant’s motion for summary
disposition under MCR 2.116(C)(10). We do not retain jurisdiction.
/s/ Colleen A. O’Brien
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
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