Gilmore v. Jankowski6/19/2003
UNPUBLISHED
In this medical malpractice action, plaintiff James Gilmore appeals as of right from the circuit court's order granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendants James M. Fox, M.D., St. John Hospital and Medical Center, and St. John Health System (hereinafter referred to jointly as "Fox"), M.S. Jafri, M.D., M.S. Jafri, M.D., P.C., and Edgewood Clinic (hereinafter referred to jointly as "Jafri"), and Edward G. Jankowski, M.D., and Edward G. Jankowski, M.D., P.C. (hereinafter referred to jointly as "Jankowski"). We affirm.
I.
Plaintiff filed the present action on May 22, 2000, seeking damages for the loss of his sense of smell. Plaintiff alleged that defendants, three physicians, breached the various standards of practice applicable to each, including the failure to sooner refer plaintiff to an ear, nose, and throat (ENT) specialist (asserted as to defendants Fox and Jafri), and the failure to diagnose the cause of his sinus problems as a tumor (asserted as to defendant Jankowski). Plaintiff claimed that the delay in diagnosis of and surgery to remove the tumor resulted in the loss of his sense of smell.
Plaintiff was first seen for his sinus problems by defendant Fox, an emergency room specialist, on December 31, 1997. Sinus x-rays were taken and a diagnosis of sinusitis was made. Defendant Fox prescribed an antibiotic and referred plaintiff to his family physician for follow-up treatment. There was no referral to an ENT specialist, which plaintiff now claims violated the standard of care for an emergency room physician.
On January 14, 1998, plaintiff was seen for his sinus problems by defendant Jafri, an internal medicine physician. Defendant Jafri did not diagnose the tumor, but ordered additional sinus x-rays. On May 4, 1998, plaintiff was seen by defendant Jankowski, an ENT specialist. At a second visit on June 1, 1998, Jankowski noted the presence of a polyp and recommended surgery to address the problems that plaintiff complained of. According to plaintiff's complaint, it was at this visit that defendant Jankowski first violated the standard of care of an ENT specialist due to his failure to require further testing. The evidence indicates that plaintiff considered surgery but did not assent to the procedure until October 1998. The scheduled November surgery did not proceed as planned, however, because plaintiff's insurance company required a second opinion. Thus, in November 1998 plaintiff saw a second ENT specialist, at which time a CT scan revealed the presence of a nonmalignant tumor, an ameloblstoma. Surgery was finally performed four months later, in March 1999, by a third ENT specialist, at which time the tumor was completely removed.
Plaintiff's emergency medicine expert, Dr. Bucci, testified at his deposition that Dr. Fox properly examined and treated plaintiff at the St. John emergency department on December 31, 1997. Dr. Bucci opined that the only breach of the standard of practice by defendant Fox was the failure to refer plaintiff directly to an ENT specialist, rather than to a primary care physician. Plaintiff's internal medicine expert, Dr. Farber, asserted that the standard of practice applicable to defendant Jafri required that he also refer plaintiff to an ENT specialist.
Plaintiff's ENT expert, Dr. Mihail, who was also plaintiff's only expert to testify regarding causation, testified that defendant Jankowski, the ENT specialist, did not breach the standard of care when he first saw plaintiff on May 4, 1998. Dr. Mihail asserted, however, that by either June or August of 1998, Jankowski should have ordered more diagnostic studies which would have resulted in dia
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