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Zdrojewski v. Murphy11/15/2002
FOR PUBLICATION
Defendants appeal as of right from a judgment for plaintiff in this medical malpractice case. Plaintiff cross-appeals the trial court's decision to reduce the damages awarded by the jury pursuant to MCL 600.1483. We affirm.
I. Basic Facts and Proceedings Below
In April 1995, Dr. Donald Meyer referred plaintiff to defendant John M. Murphy, M.D. for treatment of a cancerous thyroid tumor. Dr. Murphy, who was the chief of surgery at defendant William Beaumont Hospital (Beaumont), performed the surgery at a Beaumont facility on June 12, 1995. Another physician, Dr. Bruce MacIntosh, and a physician's assistant, Frank Mercandonte, assisted Dr. Murphy in performing the surgery. According to Dr. Murphy, plaintiff's thyroid was "cement-like" and adherent to other structures due to past radioactive iodine treatment, which made the surgery more difficult. In addition, Dr. Murphy concluded that plaintiff's recurrent laryngeal nerve needed to be removed because it was encased by the tumor.
The day after the surgery, Dr. Murphy noted that plaintiff had an elevated temperature and drainage from the incision, and he ordered an esophagoscopy, which revealed a perforation in plaintiff's esophagus. Plaintiff was taken directly to surgery and a thoracic surgeon, Dr. Robert Welsch, repaired the perforation. Plaintiff recovered from this second surgery and was released from Beaumont on June 20, 1995.
Following the surgery at Beaumont, plaintiff had difficulty breathing, swallowing, and eating. In July 1995, plaintiff was admitted to another hospital suffering from aspiration pneumonia. According to plaintiff, no one informed her or her family that her recurrent laryngeal nerve was removed during the operation. Dr. Murphy completed a handwritten operative note following the surgery, but did not dictate his operative report until June 21, 1995, the day after plaintiff was discharged from Beaumont. The operative report stated that the recurrent laryngeal nerve was removed; however, the handwritten note contained no reference to the nerve removal, and the pathology report showed no indication that the nerve was involved in the tumor. In her complaint filed in March 1997, plaintiff alleged that Dr. Murphy and Beaumont or its "agents, servants and/or employees, either real or ostensible" were negligent.
In May 1998, Beaumont moved for partial summary disposition, arguing that it could not be liable for any alleged negligence of Dr. Murphy because he was not an agent of Beaumont. Beaumont claimed that plaintiff's treating physician referred her to Dr. Murphy, there was a pre- existing relationship between Dr. Murphy and plaintiff before the June 1995 surgery, and it did not take any action that would lead plaintiff to reasonably believe that Dr. Murphy was acting on its behalf. The trial court noted that plaintiff asserted that she looked to Beaumont for treatment because of the recommendation of her brother. The court further noted that plaintiff's injuries might have occurred due to the negligence of Dr. McIntosh, who plaintiff did not seek out for treatment. The trial court denied Beaumont's motion, stating that it could not find as a matter of law that there was no ostensible agency relationship between Beaumont and Dr. Murphy, or that Dr. Murphy's actions were the sole cause of plaintiff's injuries.
Before trial began in this case, plaintiff submitted proposed jury instructions that included a request for SJI2d 30.05, which is the standard jury instruction regarding res ipsa loquitur, to which defendants objected.
At trial, plaintiff presented three theories of negligence: that defendants allowed plaintiff's esophag
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