Opinion
No. 343959
02-26-2019
AMANDA BARKER MILLER, Plaintiff-Appellant, v. TABITHA BARBER, D.O., Defendant-Appellee, and NORTH OTTAWA COMMUNITY HOSPITAL and NORTH OTTAWA MEDICAL GROUP, Defendants.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Ottawa Circuit Court
LC No. 16-004614-NH Before: METER, P.J., and SAWYER and CAMERON, JJ. PER CURIAM.
Plaintiff appeals from an order of the circuit court granting summary disposition in favor of defendant Barber on plaintiff's medical malpractice claim. We affirm.
The trial court summarized the facts of this case in its opinion granting summary disposition:
Plaintiff is a 27-year-old woman. Prior to the birth of her second child, Levi, plaintiff decided that following Levi's birth, she would undergo a form of tubal ligation in which Filshie clips are attached to the fallopian tubes. It was plaintiff's understanding that this procedure could be reversed and that her ability to conceive restored if and when she wished to become pregnant again. On the day that Levi was born, plaintiff's physician performed this procedure.
On December 13, 2013 plaintiff consulted Dr. Barber for chronic pelvic pain and vulvodynia. Dr. Barber recommended that plaintiff undergo a hysteroscopy and a biopsy. During the course of these procedures on January
8, 2014, Dr. Barber decided that the Filshie clips were contributing to plaintiffs pelvic pain. Therefore, Dr. Barber elected to (1) remove the Filshie clips and (2) cauterize plaintiff's fallopian tubes. It was Dr. Barber's belief that cauterization was necessary to promote hemostasis.
On January 24, 2014, plaintiff met with Dr. Barber for a post-operative evaluation. Dr. Barber recorded in plaintiff's chart that plaintiff's chronic pelvic pain had resolved. However, on March 12, 2014, plaintiff consulted Dr. Thomas Fasbender, MD. Plaintiff told Dr. Fasbender that she was experiencing a deep aching, stabbing pain in her pelvis. Dr. Fasbender concluded that plaintiff was suffering from endometriosis.8
Plaintiff claims that Dr. Barber committed malpractice in two respects.
First, plaintiff claims that Dr. Barber's removal of the Filshie clips and/or cauterization of her fallopian tubes damaged her fallopian tubes such that it is highly unlikely that the tubes can successfully be reconnected. Second, plaintiff claims that it was not reasonably necessary to remove the Filshie clips and/or cauterize her fallopian tubes to treat her chronic pelvic pain and vulvodynia and plaintiff argues that Dr. Barber's removal of the Filshie clips and/or cauterization of her fallopian tubes caused unnecessary damage to the tubes.
On July 17, 2017, Dr. Barber filed her first motion for partial summary disposition. Dr. Barber argued that plaintiff could not establish that "but for" Dr. Barber's removal of the Filshie clips and/or cauterization of plaintiff's fallopian tubes, plaintiff more probably than not could have had a successful tubal reversal. This Court agreed and issued an order granting Dr. Barber's first motion for partial summary disposition.
On January 2, 2018, Dr. Barber filed her second motion for partial summary disposition. In this motion, Dr. Barber argued that plaintiff had failed to plead damages or to produce evidence of damages. Plaintiff conceded that she had testified at her deposition that she was not making a claim for either economic damages or non-economic damages. Plaintiff argued, however, that because she produced evidence of injury, she was under no legal obligation to plead or produce evidence of damages.
On March 8, 2018, this Court issued an opinion and order denying Dr. Barber's second motion for partial summary disposition. The Court agreed with plaintiff that, having pleaded injury and produced evidence of injury, plaintiff was under no obligation to plead and produce evidence of damages. The Court relied on Cox v Board of Hospital Managers for the City of Flint, 467 Mich 1, 10; 651 NW2d 356 (2002), wherein the Court held that plaintiff in a medical malpractice must plead and prove each of the following elements: (1) the applicable standard of care; (2) a breach of that standard by the defendant; (3) injury; and (4) proximate causation between the alleged breach and the injury.
On March 26, 2018, Dr. Barber filed a motion for reconsideration contending that this Court committed palpable error in holding that plaintiff in a medical malpractice case was not required to plead or produce evidence of damages. Dr. Barber cited Henry v Dow Chemical Corp, 473 Mich 63; 701 NW2d 684 (2005).On remand, the trial court expressed its disagreement with this Court's decision in the prior appeal, but nevertheless followed this Court's directive, determining that, in light of this Court's decision, defendant was now entitled to summary disposition and dismissed the case:
On April 3, 2018, this Court issued an opinion and order denying Dr. Barber's motion for reconsideration. The Court held that Henry was not on point because, while Henry was a negligence case, the case at bar is a medical malpractice case. The Court noted that the Michigan Supreme Court has held that the elements of a cause of action in negligence are distinctly different than the elements of a cause of action in medical malpractice. The Court contrasted Haliw v Sterling Heights, 464 Mich 297, 309; 627 NW2d 581 (2001), wherein the Michigan Supreme Court delineated the elements of a cause of action in negligence, with Cox, wherein the Michigan Supreme Court delineating [sic] the elements of a cause of action in medical malpractice.
On April 13, 2018, the Court of Appeals, acting pursuant to MCR 7.205(E)(2), issued an Order peremptorily reversing the March 8, 2018 decision of this Court denying Dr. Barber's second motion for partial summary disposition. The Court of Appeals remanded this case for reconsideration in light of Henry. The Order states: "The circuit court erred when it concluded that injury to plaintiff's fallopian tubes was actionable despite the absence of any evidence relevant to Count II that the injury resulted in any economic or non-economic damages." [Footnotes omitted.]
It is evident from the Order of the Court of Appeals that the Court of Appeals interprets Henry very differently than does this Court. The Court of Appeals reads Henry to stand for the proposition that plaintiff in a medical malpractice action—in addition to pleading and producing evidence of injury—must also plead and produce evidence of damages. This Court is bound by the Court of Appeals' interpretation of Henry. Therefore, on reconsideration, this Court reverses it's opinion and order of March 8, 2018.
Dr. Barber's second motion for partial summary disposition is GRANTED.
Pursuant to MCR 2.602(A)(3), this order resolves the last pending claim and closes this case. [Footnote omitted.]
On appeal, plaintiff primarily argues whether she has created a genuine issue of material fact on the issue of her claim for lost opportunity, see Falcon v Memorial Hosp, 436 Mich 443; 462 NW2d 44 (1990), as well as whether she has established a claim based upon injury to her fallopian tubes. While we do not necessarily disagree with plaintiff's argument that she has established a genuine issue of material fact on these claims, what plaintiff has failed to do in this appeal is to adequately address the ultimate basis for the trial court's grant of summary disposition following remand: namely, whether plaintiff adequately plead and established damages.
In her brief on appeal, plaintiff devotes a few scant paragraphs addressing the issue presented to the trial court on remand. Ultimately, plaintiff does not show that she has met the requirements of Henry v Dow Chemical Corp. Rather, she merely argues that the "Henry case has no application whatsoever to the facts of our case." But this ignores the fact that this Court, in our remand order, already determined that it did:
Pursuant to MCR 7.205(E)(2), in lieu of granting the application for leave to appeal, the Court PEREMPTORILY REVERSES the March 8, 2018 decision of the Ottawa Circuit Court denying summary disposition as to Count II and REMANDS this matter for reconsideration of the merits of the motion in light of Henry v Dow Chemical Co, 473 Mich 63; 701 NW2d 684 (2005). The circuit court erred when it concluded that injury to plaintiff's fallopian tubes was actionable despite the absence of any evidence relevant to Count II that the injury resulted in any economic or non-economic damages. [Docket No. 342983, order issued 4/13/2018.]
Clearly this Court previously determined that Henry was applicable to the facts of this case. While, like plaintiff, the trial court disagreed with our conclusion, the trial court nevertheless did as it was obligated to do and followed the directive on remand. In so doing, the trial court determined that plaintiff had not, in fact, established any evidence that plaintiff's injury resulted in any economic or non-economic damages. Plaintiff does not contradict this conclusion in her brief on appeal. Rather, she merely states that her injury entitles her to seek noneconomic loss damages. While that is true, it does not establish that she has established those damages so as to survive summary disposition.
Ultimately, even if we were to agree with plaintiff and the trial court and this Court erred in our earlier order regarding the applicability of Henry to this case, the law of the case doctrine precludes this panel from revisiting the issue. Augustine v Allstate Ins Co, 292 Mich App 408, 425; 807 NW2d 77 (2011) ("this Court's determination of an issue in a case binds both the trial court on remand and this Court in subsequent appeals."). In sum, until and unless the Supreme Court determines that we erred in our interpretation of Henry, and in light of plaintiff's failure to establish that she has adequately pleaded and established damages, the trial court properly determined that defendant was entitled to summary disposition and that the case should be dismissed.
Affirmed. Defendant may tax costs.
/s/ Patrick M. Meter
/s/ David H. Sawyer
/s/ Thomas C. Cameron