Opinion
No. 350120
10-15-2020
SYLVIA ROGALSKI, Plaintiff-Appellee, v. F. MATTHEW SMITH, M.D., and GREAT LAKES PLASTIC SURGERY CENTER, PC, Defendants-Appellants.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Grand Traverse Circuit Court
LC No. 2017-032053-NH Before: MURRAY, C.J., and CAVANAGH and CAMERON, JJ. PER CURIAM.
Defendants, F. Matthew Smith, M.D., and Great Lakes Plastic Surgery Center, PC (GLPSC), appeal by leave granted the trial court order denying their second motion for summary disposition in this medical malpractice action. We affirm.
Rogalski v Smith, unpublished order of the Court of Appeals, entered December 13, 2019 (Docket No. 350120).
Defendants argue that the trial court erred in denying their second motion for summary disposition because plaintiff, Sylvia Rogalski, failed to provide an expert affidavit of merit or expert testimony to prove her prima facie case of medical malpractice, and because the trial court improperly relied on the doctrine of res judicata. We agree that the trial court erred in its analysis regarding the affidavit of merit and res judicata, but nonetheless conclude that denial of defendants' second motion for summary disposition was proper.
I. STATEMENT OF FACTS
This matter arises from an elective cosmetic surgery performed by Dr. Smith on plaintiff in 2014 when she was 80 years old. In 1991, plaintiff was in a motor vehicle accident, and sustained facial fractures to the left orbital rim of her face. They were surgically repaired, and a wire prosthesis with a silastic strip was inserted, but still left a depression in her left cheek.
Plaintiff visited Dr. Smith at GLPSC for a consultation appointment on September 22, 2014, hoping to have an implant placed in her left cheek to correct the asymmetry of her face. Dr. Smith recommended cheek implants in both cheeks and a face lift; plaintiff declined the facelift. Dr. Smith intended to perform a bilateral cheek implant procedure to camouflage the deformity in plaintiff's left cheek.
On September 25, 2014, plaintiff signed a GLPSC consent form, consenting to the procedure. Dr. Smith performed the bilateral cheek implant procedure on plaintiff at Munson Medical Center on September 30, 2014. Before surgery, plaintiff signed a Munson Informed Consent Form with the following language:
If during this procedure, the doctor(s) find it necessary to perform additional and/or different procedures than those listed above, which are not known to be needed at the time this consent is given, I consent to the performance of such procedures.Dr. Smith's postoperative note indicated that he removed "a deep foreign body from left orbital rim[;]" however, the note did not mention identifying the silicone and wire prothesis intraoperatively, nor the nature of the removal.
Plaintiff had a follow-up visit with Dr. Smith a week after surgery. The implants were in good position, and there was no asymmetry in plaintiff's face; however, there was evidence of ectropion (lower eyelid sagging) on the left side. Plaintiff was directed to massage her eyelids, and push them upwards to relieve swelling. Plaintiff had a second follow-up visit a week later with no improvement to her left eyelid ectropion. Plaintiff advised Dr. Smith that she was moving back to Ohio, and would seek treatment there.
Plaintiff was seen at the Cleveland Clinic on October 29, 2014, and a skin graft surgery was recommended to correct the ectropion. It was performed on December 2, 2014. As of plaintiff's follow-up visit on December 23, 2014, the left eyelid was healing and in good position, with no sign of infection.
However, on February 26, 2015, plaintiff presented to an emergency room in Florida, was diagnosed with cellulitis in her left eye, and prescribed antibiotics. In June 2015, plaintiff fell on her left eye, developed an abscess, and was again prescribed antibiotics. Ultimately, plaintiff underwent surgery to have the cheek implants removed on September 23, 2016.
II. PROCEDURAL HISTORY
Plaintiff served defendants with a notice of intent under MCL 600.2912b on September 29, 2016, regarding an alleged breach of the standard of care for lack of informed consent obtained on September 22, 2014, during the consultation appointment with Dr. Smith at GLPSC. Plaintiff filed a complaint against defendants on March 31, 2017, alleging medical malpractice. She alleged that Dr. Smith had the duty to provide surgical care consistent with the standards of care for plastic surgeons, and his failure to obtain informed consent to remove the prosthesis at the time the operation was discussed on September 22, 2014, was a breach of the standard of care. Attached to the complaint was an affidavit of merit signed by Dr. Robert B. Karp, a board-certified plastic surgeon. Dr. Karp attested that the appropriate standard of care is that if the prosthesis was to be removed, the patient should be fully advised, and consent to such in writing. Dr. Karp opined that Dr. Smith breached the standard of care.
Plaintiff later withdrew Dr. Karp as an expert, and defendants filed their first motion for summary disposition under MCR 2.116(C)(7) and (C)(10). Defendants asserted that because expert testimony is necessary for plaintiff to establish the elements of a medical malpractice claim, and because plaintiff withdrew her only expert witness (Dr. Karp), plaintiff could not establish her claim, and dismissal was appropriate. Plaintiff wanted to rely on Dr. Smith's testimony, but Dr. Smith's testimony did not establish the standard of care or a breach because Dr. Smith did not believe that he did anything wrong in the procedure. Additionally, defendants argued that they were entitled to summary disposition of plaintiff's claim relating to the lack of informed consent obtained on September 22, 2014, the date of the consultation appointment, because the two-year statute of limitations expired before plaintiff filed her notice of intent.
The trial court entered an order granting in part and denying in part defendants' first motion for summary disposition, and allowed plaintiff to amend her notice of intent. The trial court granted defendants' motion regarding plaintiff's claim that there was no informed consent obtained on September 22, 2014, on the basis of the statute of limitations, and denied the remainder of defendants' motion. Plaintiff served a revised notice of intent on defendants on July 13, 2018, alleging that defendants breached the standard of care for failing to obtain informed consent on the date of surgery, September 30, 2014.
Defendants then filed a second motion for summary disposition under MCR 2.116(C)(7) and (C)(10), arguing that plaintiff's claim based on her revised notice of intent for the lack of informed consent on September 30, 2014, lacked expert support to establish the elements of her claim, and she failed to provide an affidavit of merit, so dismissal was appropriate.
The trial court held a hearing on defendants' second motion for summary disposition, and entered a decision and order denying the motion. The court noted that it granted in part defendants' first motion for summary disposition because plaintiff filed suit two years after the accrual date of September 22, 2014. "Further, the [c]ourt found that, in lieu of expert testimony, [p]laintiff may use Dr. Smith's own testimony to establish the relevant standard of care." Thus, plaintiff's remaining claim was limited to the surgery and consent obtained on September 30, 2014, and defendants again sought summary disposition, arguing that the affidavit of merit was insufficient, and expert testimony was required to establish plaintiff's claims.
Defendants asserted that Dr. Karp's affidavit of merit was insufficient because it pertained to the September 22, 2014 consultation appointment, not the September 30, 2014 surgery. In its opinion and order, the court stated,
[h]owever, Dr. Karp also states, "Dr. Smith's failure to obtain informed consent at the time of the surgery was discussed with Ms. Rogalski in his clinic and his failure to describe the nature and extent of the removal of the prosthesis in the operate [sic] report were breaches of the applicable standards of care."Therefore, to the extent that Dr. Karp's statement that failure to obtain informed consent "at the time of the surgery" seemed to apply to September 30, 2014, the affidavit of merit was sufficient, and summary disposition was denied.
The court also noted that at the previous hearing on defendants' first motion, plaintiff relied on Dr. Smith's testimony wherein he indicated that it would be a breach to remove the prothesis without plaintiff's consent, and plaintiff claimed that whether Dr. Smith obtained informed consent on September 30, 2014, was a factual issue based on Dr. Smith's testimony and plaintiff's testimony that she never gave consent. The court denied defendants' first motion for summary disposition regarding the expert testimony issue, and therefore, determined that res judicata applied to preclude summary disposition under MCR 2.116(C)(10) for defendants' second motion for summary disposition.
After defendants filed an application for leave to appeal this order, and a motion for a stay of the proceedings in the trial court, plaintiff filed a motion to amend her complaint to include allegations regarding September 30, 2014. The court granted plaintiff's motion to amend her complaint, and plaintiff filed one. Plaintiff asserted that because she told Dr. Smith that she did not want the prothesis removed, Dr. Smith's failure to advise plaintiff on September 30, 2014, that the prothesis might need to be removed was a breach of the applicable standard of care. The trial court later entered a stipulated order for stay of the proceedings pending appeal, and leave to appeal was granted by this Court. Rogalski v Smith, unpublished order of the Court of Appeals, entered December 13, 2019 (Docket No. 350120).
III. STANDARD OF REVIEW
"Appellate review of the grant or denial of a summary-disposition motion is de novo, and the court views the evidence in the light most favorable to the party opposing the motion." West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Summary disposition may be granted under MCR 2.116(C)(7) "because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action." In determining whether summary disposition under MCR 2.116(C)(7) is appropriate, a court may consider all documentary evidence submitted by the parties, accepting as true all the contents of the complaint unless affidavits or other appropriate documents specifically contradict them. Patterson v Kleiman, 447 Mich 429, 433-435; 526 NW2d 879 (1994). "Summary disposition is appropriate under MCR 2.116(C)(10) if there is no genuine issue regarding any material fact and the moving party is entitled to judgment as a matter of law." West, 469 Mich at 183. "A genuine issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ." Id.
IV. ANALYSIS
We briefly note plaintiff's argument that this Court lacks jurisdiction. Plaintiff merely asserts that defendants did not timely appeal the July 10, 2018 trial court order granting in part and denying in part defendants' first motion for summary disposition, the trial court denied defendants' second motion for summary disposition in part on the basis of res judicata, and as such, "jurisdiction is not proper at this time." Defendants timely filed an application for leave to appeal from the July 18, 2019 order denying defendants' second motion for summary disposition, MCR 7.205(A)(1), and the Court entered an order granting leave to appeal. Rogalski v Smith, unpublished order of the Court of Appeals, entered December 13, 2019 (Docket No. 350120). Thus, jurisdiction is proper, and whether the trial court erred in relying on res judicata to deny defendants summary disposition relates to the merits of the claim on appeal, not jurisdiction.
Defendants argue that the trial court erred when it denied their second motion for summary disposition because plaintiff lacked an affidavit of merit or expert testimony to establish her claim of medical malpractice regarding the lack of informed consent on September 30, 2014, and therefore dismissal was appropriate, and that the trial court erroneously relied on the doctrine of res judicata to deny defendants summary disposition.
"To establish a cause of action for medical malpractice, a plaintiff must establish four elements: (1) the appropriate standard of care governing the defendant's conduct at the time of the purported negligence, (2) that the defendant breached that standard of care, (3) that the plaintiff was injured, and (4) that the plaintiff's injuries were the proximate result of the defendant's breach of the applicable standard of care." Kalaj v Khan, 295 Mich App 420, 429; 820 NW2d 223 (2012). "Expert testimony is required to establish the standard of care and a breach of that standard, as well as causation." Id. (citations omitted). Under MCL 600.2912d(1)(a)-(d), the plaintiff alleging medical malpractice "shall file with the complaint an affidavit of merit" signed by a health professional stating the applicable standard of care, that there was a breach of the standard, what actions should have been taken or omitted to comply with the standard, and how the breach was the proximate cause of the injury.
Defendants argued in their second motion for summary disposition that plaintiff's claim of medical malpractice should be dismissed because the affidavit of merit filed with the complaint was not sufficient to support plaintiff's revised notice of intent pertaining to informed consent on September 30, 2014. The trial court determined that the affidavit of merit was sufficient because Dr. Karp's statement that failure to obtain informed consent "at the time of the surgery" applied to September 30, 2014, and denied summary disposition. This was in error.
First, MCL 600.2912d(1) provides that the plaintiff in a medical malpractice action or his or her attorney "shall file with the complaint an affidavit of merit." This Court has determined that "the clear language of the statute requires the filing of an affidavit of merit only with the original complaint." King v Reed, 278 Mich App 504, 519; 751 NW2d 525 (2008).
The term "action" used in MCL 600.2912d(1) is the "judicial proceeding," and does not equate with the filing of an amended complaint. Black's Law Dictionary (8th ed). Furthermore, MCL 600.2912d requires "an affidavit of merit" to be filed with
"the complaint . . . ." MCL 600.2912d (emphasis added). Had the Legislature intended for the affidavit-of-merit requirement to apply to complaints other than the original complaint filed, it could have used the term "any" or "all" complaints or could have explicitly included language requiring the filing of an additional affidavit of merit with an amended complaint. Instead, the Legislature used the definite article "the," which suggests that the affidavit of merit must only accompany the original complaint. By its own terms, MCL 600.2912d(1) does not require the filing of an additional affidavit of merit with an amended complaint. This Court will not read anything into a statute that is not within the manifest intent of the Legislature, as gleaned from the language of the statute itself. Universal Underwriters Ins Group v Auto Club Ins Ass'n, 256 Mich App 541, 544; 666 NW2d 294 (2003). Had the Legislature sought to require the filing of an additional affidavit of merit with an amended complaint, it could have included such a requirement in the statute. [King, 278 Mich App at 515-516 (footnote omitted).]
Here, pursuant to court order, plaintiff filed a revised notice of intent regarding informed consent related to September 30, 2014. By the reasoning provided in King, plaintiff was not required to file an additional affidavit of merit in support of her revised notice of intent because the statute requires that the affidavit of merit be filed with the original complaint only. Id. at 515-516, 519. Therefore, the trial court erred when it denied defendants' second motion for summary disposition by concluding in its analysis that the affidavit of merit supported the revised notice of intent.
Additionally, although plaintiff was not required to support her revised notice of intent with an affidavit of merit, the trial court misquoted the affidavit of merit to conclude that it supported the revised notice of intent pertaining to what occurred on September 30, 2014. The affidavit of merit related to plaintiff's consultation appointment with Dr. Smith on September 22, 2014. In the affidavit, Dr. Karp stated, "Dr. Smith's failure to obtain an informed consent at the time the surgery was discussed with Ms. Rogalski in his clinic and his failure to describe the nature and extent of the removal of the prothesis in the operative report were breaches of the applicable standards of care." --------
Next, defendants argue that the trial court erred in denying their second motion for summary disposition on the basis of res judicata. In the opinion and order denying defendants' second motion for summary disposition, the trial court noted that in relation to defendants' first motion for summary disposition, "the [c]ourt found that, in lieu of expert testimony, [p]laintiff may use Dr. Smith's own testimony to establish the relevant standard of care." Then the trial court concluded, "[T]he [c]ourt issued an [o]rder that denied [d]efendants' request for summary disposition on the expert testimony issue. As the [c]ourt previously ruled on the issue of whether separate expert testimony is required to establish the [p]laintiff's claims, the doctrine of res judicata applies and precludes summary disposition under MCR 2.116(C)(10)." This, too, was in error.
The doctrine of res judicata applies when "(1) there has been a prior decision on the merits, (2) the issue was either actually resolved in the first case or could have been resolved in the first case if the parties, exercising reasonable diligence, had brought it forward, and (3) both actions were between the same parties or their privies." Bennett v Mackinac Bridge Auth, 289 Mich App 616, 630; 808 NW2d 471 (2010) (quotation marks and citation omitted). The doctrine of res judicata does not apply within a single action. Sumner v Gen Motors Corp, 245 Mich App 653, 660 n 3; 633 NW2d 1 (2001), citing Harvey v Harvey, 237 Mich App 432, 437; 603 NW2d 302 (1999). Because the trial court relied on the doctrine of res judicata within the same action, this was in error, Sumner, 245 Mich App at 660 n 3, and the trial court erred in denying defendants' summary disposition regarding the expert testimony issue on the basis of res judicata.
Although the trial court erred in its analysis regarding the affidavit of merit and res judicata to deny defendants' second motion for summary disposition, this Court may affirm a lower court decision if the court reached the right result for the wrong reason. Varela v Spanski, 329 Mich App 58, 81; 941 NW2d 60 (2019). As an alternative ground for affirming, plaintiff argues that the trial court properly denied defendants' second motion for summary disposition because caselaw establishes that a plaintiff may use a defendant's testimony to establish the standard of care in a medical malpractice action, and the testimony from Dr. Smith and plaintiff create a genuine issue of material fact regarding whether plaintiff informed Dr. Smith that she did not want the prothesis removed.
As noted above, the plaintiff in a medical malpractice action must establish, among other things, the applicable standard of care, and that the defendant breached that standard of care. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). Usually, both elements must be established through expert testimony. Id. However, "the defendant may supply the necessary expert testimony." Rice v Jaskolski, 412 Mich 206, 212; 313 NW2d 893 (1981) (the defendant dentist testified as to the standard of care of oral surgeons to warn patients of numbness).
Dr. Smith is a board-certified plastic surgeon, and he testified that he was familiar with the standard of care for board-certified plastic surgeons in relation to cheek implant procedures, including when there is a foreign body in the cheek. Dr. Smith testified that had plaintiff told him that she did not want the prothesis in her cheek to be touched, it would be his obligation under informed consent to specifically address it with her, and tell her that removal might be necessary, and that he would make the decision intraoperatively. Dr. Smith did not remember plaintiff saying that she did not want anything done with the foreign object. However, if plaintiff had said that she did not want it removed, it would have been part of informed consent to tell her that he might have to remove it.
Plaintiff testified that when she spoke to Dr. Smith in his office on September 22, 2014, she told him that he could not cut on her left cheek where the prothesis was. She testified that in the operating room right before surgery, Dr. Smith confirmed that she did not want the procedure intraorally. Plaintiff said that she repeatedly told Dr. Smith not to remove the prothesis from her left cheek.
Therefore, although Dr. Smith's testimony establishes the standard of care for a board-certified plastic surgeon under these circumstances, a question of fact remains regarding informed consent. MCR 2.116(C)(10). Although plaintiff signed the Munson Informed Consent Form on September 30, 2014, including language consenting to different procedures not known to be needed at the time of consent, Dr. Smith admitted that the standard of care would require him to tell plaintiff that the prothesis might need to be removed had she said that she did not want it removed. Dr. Smith, however, did not remember plaintiff saying that she did not want the prothesis removed, while plaintiff testified that she informed Dr. Smith several times not to remove the prothesis. Hence, with respect to plaintiff's remaining claim relating to informed consent on the date of the surgery, September 30, 2014, questions of material fact exist regarding whether Dr. Smith obtained plaintiff's informed consent to remove the prothesis during the cheek implant surgery. West, 469 Mich at 183. Therefore, the denial of defendants' second motion for summary disposition was proper. Id.
Affirmed.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron