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Taylor v. Rajani10/25/2005
UNPUBLISHED
Before: Saad, P.J., and Jansen and Markey, JJ.
Defendant Dr. Ratan Rajani performed a right thyroidectomy on plaintiff Anna Marie Taylor to rule out the possibility that a lump in her throat was cancer. Dr. Rajani did not find cancer but after the operation Mrs. Taylor developed hoarseness, vocal weakness and choking. Plaintiffs sued defendants alleging Dr. Rajani committed malpractice by: (1) not providing sufficient information to permit informed consent to the operation, (2) performing a more risky procedure than necessitated by Mrs. Taylor's circumstances, and (3) injuring Taylor's recurrent laryngeal nerve during the surgery, thereby paralyzing her right vocal fold. After a five-day trial, the jury agreed and awarded plaintiffs $150,000. Defendants moved for judgment notwithstanding the verdict, new trial, or remittitur, which the trial court denied. We affirm.
I. Sufficiency of Evidence
Defendant first argues that the trial court erred by not granting his motion for directed verdict at the close of plaintiff's proofs and erred again by denying his motion for judgment notwithstanding the verdict (JNOV). Defendant contends plaintiff's evidence of malpractice was mere speculation, and therefore, insufficient to submit plaintiff's claim to the jury, or to sustain the jury's verdict in plaintiff's favor. We disagree.
We review de novo the trial court's ruling on both motions. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 491; 668 NW2d 402 (2003). With respect to directed verdict, this Court must consider the evidence presented up to the time the motion was made in the light most favorable to the nonmoving party, making all reasonable inferences in the nonmoving party's favor. Thomas v McGinnis, 239 Mich App 636, 643-644; 609 NW2d 222 (2000). A directed verdict is proper only when no factual question exists upon which reasonable minds could differ. Id. at 644. Similarly, the trial court should grant a JNOV motion only when the evidence and all legitimate inferences viewed in a light most favorable to the nonmoving party fails to establish a claim as a matter of law. Foreman v Foreman, 266 Mich App 132, 136; 701 NW2d 167 (2005). We recognize that both the jury and the trial judge have observed the witnesses, and it is the jury that determines the credibility of witnesses and the weight to be accorded the evidence. Id. "When the evidence presented could lead reasonable jurors to disagree, the trial court may not substitute its judgment for that of the jury." Id.; Wiley, supra at 491.
The plaintiff in a medical malpractice case bears the burden of proving: (1) the applicable standard of care, (2) that defendant breached the standard of care, (3) an injury, and (4) proximate cause. Locke v Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994); MCL 600.2912a. A malpractice claim fails when any one of these elements is not established. Wischmeyer v Schanz, 449 Mich 469, 484; 536 NW2d 760 (1995). In general, expert testimony is necessary to establish both the applicable standard of care and that the defendant breached the standard. Woodard v Custer, 473 Mich 1, 6; 702 NW2d 522 (2005). With respect to the element of proximate cause, the plaintiff must establish not only cause in fact - that it is more probable than not that "but for" the defendant's breach of the standard of care the injury would not have occurred - but also that the defendant's breach was a "legal" cause of the injury. Craig v Oakwood Hosp, 471 Mich 67, 86-87; 684 NW2d 296 (2004). Proximate cause is that which, in a natural and continuous sequence, unbroken by any independent, unforeseen cause, produces the injury. Wiley, supra at 496. Proximate cause will usually be
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