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Navarro v. Isterabadi9/11/2003
UNPUBLISHED
In Docket No. 231352, defendant appeals as of right from a jury-trial-based judgment awarding plaintiffs Gwendolyn Navarro and John Navarro ("plaintiffs") $135,000, as well as from an order awarding plaintiffs their attorney fees as case evaluation sanctions. In Docket No. 231421, intervening plaintiff Blue Cross and Blue Shield of Michigan ("BCBSM") appeals as of right from an order dismissing its complaint for reimbursement of medical expenses paid in connection with plaintiff Gwendolyn Navarro's injuries. We affirm the judgment for plaintiffs but vacate the order dismissing BCBSM's complaint and remand for further proceedings.
This medical malpractice action arose from plaintiffs' claim that Gwendolyn Navarro suffered an injury to her accessory nerve, also known as the eleventh cranial nerve, during a lymph node biopsy surgery performed by defendant.
I.
Defendant first argues that the trial court erred by denying his motion for a directed verdict and his later motion for judgment notwithstanding the verdict (JNOV). We disagree. The trial court's decision with regard to each of these motions is reviewed de novo, with the evidence considered in the light most favorable to the nonmoving party. Graves v Warner Bros, 253 Mich App 486, 491-492; 656 NW2d 195 (2002); Badalamenti v William Beaumont Hosp, 237 Mich App 278, 284; 602 NW2d 854 (1999).
Defendant's argument is predicated on his position that the evidence of causation offered against him at trial amounted to mere speculation. In this regard, " o be adequate, a plaintiff's circumstantial proof must facilitate reasonable inferences of causation, not mere speculation." Badalamenti, supra at 285, quoting Skinner v Square D Co, 445 Mich 153, 164; 516 NW2d 475 (1994). Thus, while a theory based on mere speculation cannot support a claim, reasonable inferences from circumstantial evidence are sufficient to do so. To establish a claim by circumstantial evidence, a plaintiff "must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred." Skinner, supra at 164-165.
In this case, the testimony of plaintiffs' expert, Dr. Thomas O'Grady, indicated that defendant's use of general anesthesia during the surgery at issue was below the applicable standard of care and that the use of general anesthesia could take away reflexes and responses that would alert a surgeon to being too close to a nerve. Dr. O'Grady further indicated that defendant breached the standard of care by not having "maximally retracted" the incision made in Gwendolyn Navarro's neck. The apparent similarity of both of these alleged breaches of the standard of care is that they would have reduced defendant's ability to determine whether he might have damaged the accessory nerve. Moreover, Dr. O'Grady testified that he had never experienced an injury to the accessory nerve during the surgery at issue, and he indicated on cross-examination that he knew of only two instances when such an injury occurred. We conclude that Dr. O'Grady's testimony about the manner in which he believed that defendant breached the standard of care, considered together with his testimony about the rarity of such an injury during the type of surgery at issue, was sufficient evidence, if credited by the jury (as it evidently was), to reasonably support a finding that defendant more likely than not breached the standard of care and that this caused or contributed to the nerve injury at issue. In this regard, the expert's testimony indicated a logical sequence of cause and effect between the alleged negligence and the injury. Skinner, supra a
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