-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

DENISE GOEDKER,

Plaintiff-Appellee, UNPUBLISHED May 10, 2016

V No. 324074 Washtenaw Circuit Court JON L. SCHRAM, M.D., LC No. 13-000195-NH

Defendant-Appellant,

and

FOREST HEALTH MEDICAL CENTER, LLC,

Defendant-Appellee,

and

DR. ELAINA VAYNTRUB and BARIATRIC INTERNISTS OF MICHIGAN, P.C.,

Defendants.

DENISE GOEDKER,

Plaintiff-Appellee,

V No. 324587 Washtenaw Circuit Court FOREST HEALTH MEDICAL CENTER, LLC, LC No. 13-000195-NH

Defendant-Appellant,

and

JON L. SCHRAM, M.D.,

Defendant-Appellee,-2- and

DR. ELAINA VAYNTRUB and BARIATRIC INTERNISTS OF MICHIGAN, P.C.,

Defendants.

DENISE GOEDKER,

Plaintiff-Appellee,

V No. 324822 Washtenaw Circuit Court DR. ELAINA VAYNTRUB, LC No. 13-000195-NH

Defendant-Appellant,

and

JON L. SCHRAM, M.D., FOREST HEALTH MEDICAL CENTER, LLC, ADDISON COMMUNITY PHYSICIAN SERVICE ASSOCIATION, d/b/ a BARIATRIC SPECIALISTS OF MICHIGAN, and BARIATRIC INTERNISTS OF MICHIGAN, P.C.,

Defendants.

Before: H OEKSTRA , P.J., and O’C ONNELL and M URRAY , JJ.

P ER C URIAM

. Defendants Dr. Jon L. Schram, Dr. Elaina Vayntrub, and Forest Health Medical Center, LLC, (collectively, the medical professionals) appeal as on lea ve granted 1 the trial court’s denial of their motions for summary disposition under MCR 2.116(C)(10) in this medical malpractice action. Plaintiff, Denise Goedker, alleged that the medical pr ofessionals failed to timely diagnose a bowel obstruction that Goedker developed after a sur gery, and that this failure led to an increased risk of bowel perforation during a later surgery t o remove the obstruction. Because

1 Goedker v Schram , 498 Mich 882 (2015).-3- the only factual support for causation was contained in an affi davit contrary to deposition testimony, we reverse and remand f or entry of summary dispositi on.

I. FACTUAL BACKGROUND

Dr. Schram performed a successful laparoscopic gastric bypass surgery for Goedker on September 27, 2010, and Dr. Vayntrub provided postoperative obs ervation and treatment. Goedker does not allege that Dr. Schram’s performance of the su rgery was negligent. However, Goedker developed complications from the surgery. Goedker’s nu rsing notes indicated that on September 28, 2010, Goedker had hypoactive bowel sounds, abdomi nal pain, nausea, and an inability to pass gas, and complained of these conditions throu ghout the day. Dr. Vayntrub testified that the results of an abdominal x-ray and upper GI s tudy on Goedker were negative for obstruction and, when Dr. Vayntrub visited Goedker that day, sh e was doing well and denied having nausea. Goedker began complaining of nausea again at ar ound midnight.

On September 29, 2010, Dr. Schram examined Goedker and diagnos ed her with a postoperative ileus, a common post-operative disruption of the inte stinal tract. Dr. Schram prescribed Goedker a medication to treat the condition and inst ructed nurses to discharge Goedker from the hospital if her situation resolved. As of 10: 23 p.m., Goedker’s nursing notes reflected that she was “voiding and passing flatus” and that he r vital signs were stable. Goedker was discharged from the hospital.

On September 30, 2010, Goedker again experienced nausea and ab dominal pain. Goedker arrived at the hospital at around 7:40 p.m. and a CT sc an revealed a complete bowel obstruction. During an emergency laparoscopic surgery, Goedker ’s bowel was perforated and she developed sepsis, which in turn caused more complications a nd an extended hospital stay.

Goedker filed this suit, alleging in pertinent part that the m edical professionals’ failure to timely diagnose her with a bowel obstruction led to an increase d chance of bowel perforation during her emergency surgery. Goedker did not allege that eith er the bypass or emergency laparoscopic surgeries were negligently performed, or that her bowel obstruction or the emergency surgery could have b een avoided. After extensive dis covery, the medical professionals moved for summary disposition under MCR 2.116(C)( 10), alleging in pertinent part that Goedker failed to provide evidence that the medical p rofessionals’ actions proximately caused her injury. Relying on an affidavit of Dr. John W. Bake r, which Goedker filed after Dr. Baker’s deposition, the trial cour t denied the medical professi onals’ motions for summary disposition.

II. STANDARD OF REVIEW

This Court reviews de novo the trial court’s decision on a mot ion for summary disposition. Maiden v Rozwood , 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary disposition under MCR 2.116(C)(10) if “there is no g enuine issue as to any material fact, and the moving party is entitled to judgment . . . as a m atter of law.” The trial court must consider all the documentary evidence in the light most favorab le to the nonmoving party. MCR 2.116(G)(5); Maiden , 461 Mich at 120. A genuine issue of material fact exists if, when viewing-4- the record in the light most favorable to the nonmoving party, reasonable minds could differ on the issue. Allison v AEW Capital Mgt, LLP , 481 Mich 419, 425; 751 NW2d 8 (2008).

To survive a motion for summary disposition, once the nonmovin g party has identified issues in which there are no dis puted issues of material fact, the burden is on the plaintiff to show that disputed issues exist. Quinto v Cross & Peters Co , 451 Mich 358, 362; 547 NW2d 314 (1996). The nonmoving party “must go beyond the pleadings to s et forth specific facts showing that a genuine issue of material fact exists.” Id . A party may not create an issue of fact by contradicting his or her deposition testimony with contradictor y statements in an affidavit. Dykes v William Beaumont Hosp , 246 Mich App 471, 480-481; 633 NW2d 440 (2001).

III. ANALYSIS

Goedker’s claims against the medical professionals all rest on whether a delayed diagnosis led to an increased chance of her injury. In each of their individual appeals, the medical professionals contend that the trial court erred in rel ying on Dr. Baker’s affidavit to establish proximate cause because that affidavit was directly c ontradictory to Dr. Baker’s testimony at deposition. We agree.

MCL 600.2912a(2) requires a plaintiff in a medical malpractice action to prove proximate cause:

In an action alleging medical m alpractice, the plaintiff has th e burden of proving that he or she suffered an injury that more probably than not w as proximately caused by the negligence of the defendant or defendants. In an action alleging medical malpractice, the plaintiff cannot recover for loss of . . . an opportunity to achieve a better result unless th e opportunity was greater than 50%.

It is undisputed that Goedker’s bowel obstruction would have r equired surgical treatment regardless of when it was diagnosed and that bowel perforation is a common complication of bowel obstruction surgery. Goedke r’s theory of the case is tha t had the medical professionals performed a radiological scan on September 29, 2010, instead of on September 30, 2010, her bowel obstruction would have bee n discovered sooner and its ear lier discovery would have reduced her chances of suffering a bowel perforation. In other words, Goedker contends that the delayed diagnosis made a positiv e outcome for her surgery less likely.

Two of Goedker’s experts did not offer opinions supporting thi s theory. Dr. David Winston testified that, “I think she should have been kept in t he hospital and perhaps a better outcome would have occurred.” And Dr. Kenneth Krause testified that, “You know, it’s always difficult to say what would have happened if you were there a d ay earlier or two days earlier,” but “you would like to identify these and treat . . . earlier r ather than later[.]” Neither expert opinioned whether a delayed diagnosis made Goedker’s injury mor e likely, and certainly neither opined regarding her opportunity t o receive a better result.

In determining that a genuine issue of material fact existed r egarding causation, the trial court relied on the affidavit of D r. Baker, provided after his deposition, in which Dr. Baker stated that the medical professionals s hould have diagnosed a bowel ob struction on September 29,-5- 2010, and that, as a result, Goedker suffered an increased risk of a bowel perforation. Dr. Baker’s affidavit provided:

b. That the bowel obstruction would have been diagnosed if rad iology testing was performed prior [to] Mrs. Goedker being discharged home from th e Forest Health Medical Center on September 29, 2010.

c. That discharging Mrs. Goedke r home from Forest Health Medic al Center on September 29, 2010 without diagnosing her bowel obstruction cre ated a lengthy delay in the diagnosis of her bowel obstruction and as a result she was not taken into the operating room until October 1, 2010.

d. That the repair surgery for a bowel obstruction becomes mor e difficult to perform and the risk of complica tions, including a perforation, substantially increases the longer a bowel obstruction goes undiagnosed and u ntreated.

e. That the delay in timely diagnosis of Mrs. Goedker’s bowel obstruction caused her bowel to become significantly dilated over time and greatly increased the risk of complications to surgically treat her condition, which inclu ded the risk of perforation of the bow el during surgery.

f. That had the bowel obstruction been timely diagnosed during Mrs. Goedker’s post-operative admission at Forest Health Medical Center, the r isk of perforation during the repair surgery would have been extremely low and mor e likely than not could have been avoided a nd would not have occurred.

e. That had earlier surgery been performed at Forest Health Me dical Center prior to Mrs. Goedker’s discharge home, it is more probable than not that the Plaintiff would not have suffered the serious damages and harm caused by the perforation that occurred during the emergency surgery . . . .

However, at his deposition, Dr. Baker did not testify with suc h certainty. Dr. Baker testified that the medical professionals should have performed a radiological study if Goedker’s condition was not improving:

Q . Do you have an opinion as to when the obstruction should hav e been diagnosed?

A . Yes.

Q . What is your opinion?

A . I think that they should have evaluated her when she did not continue the usual course that you’re use d to seeing with their patients that they’re going home the first or second day, that they’re tolerating liquid, t hat they’re passing flatus, they’ve stopped belching, they’re not nauseated, and th at they meet their general criterial for discharge. When you evaluate, you see a general course, and when somebody is falling outside of that course, then you start to address other-6- issues. You would then consider if they’re not getting better, do you do plain film, do you do a CAT Scan, do you try to evaluate them for it.

Dr. Baker testified that records indicated that Goedker was get ting better throughout the day on September 29, 2010:

Q . You are aware that over the course of that day, on the 29th, Mrs. Goedker represented that her pain was improving, correct?

A . Yes, sir.

Q . You are aware that she represented that her ability to pass flatus returned, correct?

A . Yes, sir.

Q . Those subjective representations from a plaintiff are incons istent with the manifestation of an obstruction, true?

A . Yes, sir.

And Dr. Baker testified that the medical professionals should n ot necessarily have suspected a bowel obstruction on September 29, 2010:

Q . When Dr. Schram saw Mrs. Goedker on the 29th, should he have suspected an obstruction?

A . Not necessarily.

Q . Up until that point you would agree that it was reasonable a nd appropriate for Dr. Schram to suspect and to formulate a treatm ent plan for an ileus, correct?

A . Yes, sir.

Q . And that’s what he did by initiating the administration of [ medication], correct?

A . Yes, sir.

Q . After the administration of the [medication] as we’ve alread y discussed, Mrs. Goedker’s abdominal pain improved, and, her abi lity to pass flatus returned, correct?

A . Yes, sir.

Q . Was Dr. Schram required to order the CT scan or an X-ray or some other radiograph on September 29th?-7- A . Mrs. Goedker continued to have some abdominal distension and nausea throughout the course of th e day. I think that would ha ve warranted at least a plain film abdominal se ries looking at the patients’ ab dominal both in flat and erected position to see if she had continued ileus or she w as developing signs of an obstruction.

Q . Do you have an opinion as to what plain film would have show n if it had been ordered? Let’s sa y at noon on September 29th?

A . It would have shown probably d ilated small bowel and colon. 2

We conclude that Dr. Baker’s a ffidavit is contrary to his depo sition testimony regarding causation. Dr. Baker stated in his affidavit that Goedker cert ainly had a bowel obstruction on September 29, 2010, and that a radiological scan would have dis covered it, and that therefore the failure to diagnose it directly led to an increased risk of bow el perforation. However, at his deposition Dr. Baker testified th at a radiological scan on the 29th would have shown a dilated bowel—which is consistent with an ileus. Dr. Baker also testif ied at his deposition that radiological testing should have been ordered if Goedker’s cond ition did not improve, and then acknowledged that Goedker’s condition improved throughout the d ay on September 29, 2010. Dr. Baker did not testify at his deposition that failure to con duct a radiological scan on September 29, 2010, led to a significantly increased risk of pe rforating Goedker’s bowel during her later surgery. However, that is what his affidavit provide s. We conclude that Dr. Baker’s affidavit contradicted his depos ition testimony, and that the t rial court should not have considered Dr. Baker’s contradi ctory affidavit when ruling on t he motion.

Because Dr. Baker’s contrary affidavit was the only support fo r the proposition that a radiological scan on September 29, 2010, would have led to a mo re positive outcome, we conclude that the trial court s hould have granted summary dispo sition. Accordingly, we direct the trial court to grant summary disposition in favor of the me dical professionals. Given our resolution of this issue, we need not reach the medical profess ionals’ remaining issues. 3

2 Dr. Baker previously testifie d that a dilated small bowel and colon was consistent with an ileus:

A . There was some small bowel and colon seen on [the GI study o n the 28th].
Q . Which would be consistent with the presence of an ileus?

A . Yes, sir.

3 However, we note that given Dr. Baker’s failure to address med ical probabilities in his affidavit, even if the trial cour t properly considered that aff idavit, it was deficient for the purposes of MCL 600.2912a(2). See Pennington v Longabaugh , 271 Mich App 101, 104-105; 719 NW2d 616 (2006).-8- We reverse and remand. We do not retain jurisdiction. The me dical professionals may tax costs. MCR 7.219(A).

/s/ Joel P. Hoekstra /s/ Peter D. O’Connell /s/ Christopher M. Murray