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Zainea v. Blue Care Network12/1/2005
UNPUBLISHED
Before: Jansen, P.J., and Cavanagh and Fort Hood, JJ.
Plaintiffs appeal as of right from a nunc pro tunc order granting defendants' motion for partial summary disposition and denying plaintiffs' motions to reopen or reinstate their case against defendants Andrew Shinar, M.D. and Associated Orthopedists of Detroit ("Associated").
We affirm.
Plaintiffs first allege that the trial court erred by granting defendants' motion for summary disposition. We disagree. We review the trial court's grant of summary disposition de novo. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 62; 642 NW2d 663 (2002).
The trial court held that summary disposition was proper because plaintiffs failed to present evidence of proximate causation. "In order 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." Craig v Oakwood Hospital, 471 Mich 67, 86; 684 NW2d 296 (2004). Additionally, MCL 600.2912a(2) provides, in relevant part:
In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. . [MCL 600.2912a(2).]
Thus, in a medical malpractice action, a plaintiff must show that, "but for" the defendant's breach of the standard of care, the "injury would not have occurred," and that the resulting injury was a foreseeable result of the defendant's breach. Craig, supra at 86-87, quoting Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994). "While a plaintiff need not prove that an act or omission was the sole catalyst for his injuries, he must introduce evidence permitting the jury to conclude that the act or omission was a cause." Craig, supra at 87 (emphasis in original). Further, the plaintiff must prove "specific facts that will support a reasonable inference of a logical sequence of cause and effect." Id., quoting Skinner, supra at 174. Plaintiffs "need not negate all other possible causes," but must "exclude other reasonable hypotheses with a fair amount of certainty." Craig, supra at 87-88, quoting Skinner, supra at 166. "Where the connection between the defendant's negligent conduct and the plaintiff's injuries is entirely speculative, the plaintiff cannot establish a prima facie case of negligence." Craig, supra at 93.
With respect to plaintiffs' claim against Dr. Shinar, the trial court held:
But Plaintiffs still have an evidentiary problem: they have produced no evidence that Dr. Shinar violated [his duty to ensure the correct anesthetic was used]. Indeed, the evidence shows otherwise: that is, the evidence shows that the anesthesiologist for the surgery in question knew that plaintiff wanted a general anesthetic. See Deposition of John Zainea at 34 (describing pre-operative visit in which Plaintiff told anesthesiologist that he preferred general anesthetic: "I specifically said that I wanted a general."). Since the pertinent personnel already knew of Plaintiff's preference, it is hard to see how any message from Dr. Shinar would have made a difference. Cf. Nichols v. Clare Comm. Hosp., 190 Mich App 679, 684[; 476 NW2d 493] (1991) (added warnings would have been useless where doctor already knew of dangers posed by drugs).
In this respect, plaintiffs' claim, th
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