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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UNPUBLISHED 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, 
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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: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ. 

PER CURIAM. 

 Defendants Dr. Jon L. Schram, Dr. Elaina Vayntrub, and Forest Health Medical Center, 

LLC, (collectively, the medical professionals) appeal as on leave granted1

 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 professionals failed to timely 

diagnose a bowel obstruction that Goedker developed after a surgery, and that this failure led to 

an increased risk of bowel perforation during a later surgery to remove the obstruction. Because 

 

1 Goedker v Schram, 498 Mich 882 (2015). 
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the only factual support for causation was contained in an affidavit contrary to deposition 

testimony, we reverse and remand for entry of summary disposition. 

I. FACTUAL BACKGROUND 

 Dr. Schram performed a successful laparoscopic gastric bypass surgery for Goedker on 

September 27, 2010, and Dr. Vayntrub provided postoperative observation and treatment. 

Goedker does not allege that Dr. Schram’s performance of the surgery was negligent. However, 

Goedker developed complications from the surgery. Goedker’s nursing notes indicated that on 

September 28, 2010, Goedker had hypoactive bowel sounds, abdominal pain, nausea, and an 

inability to pass gas, and complained of these conditions throughout the day. Dr. Vayntrub 

testified that the results of an abdominal x-ray and upper GI study on Goedker were negative for 

obstruction and, when Dr. Vayntrub visited Goedker that day, she was doing well and denied 

having nausea. Goedker began complaining of nausea again at around midnight. 

 On September 29, 2010, Dr. Schram examined Goedker and diagnosed her with a postoperative ileus, a common post-operative disruption of the intestinal tract. Dr. Schram 

prescribed Goedker a medication to treat the condition and instructed 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 her vital signs were stable. Goedker 

was discharged from the hospital. 

 On September 30, 2010, Goedker again experienced nausea and abdominal pain. 

Goedker arrived at the hospital at around 7:40 p.m. and a CT scan 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 and an extended hospital stay. 

 Goedker filed this suit, alleging in pertinent part that the medical professionals’ failure to 

timely diagnose her with a bowel obstruction led to an increased chance of bowel perforation 

during her emergency surgery. Goedker did not allege that either the bypass or emergency 

laparoscopic surgeries were negligently performed, or that her bowel obstruction or the 

emergency surgery could have been avoided. After extensive discovery, 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 professionals’ actions proximately 

caused her injury. Relying on an affidavit of Dr. John W. Baker, which Goedker filed after Dr. 

Baker’s deposition, the trial court denied the medical professionals’ motions for summary 

disposition. 

II. STANDARD OF REVIEW 

 This Court reviews de novo the trial court’s decision on a motion 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 genuine issue as to any material 

fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must 

consider all the documentary evidence in the light most favorable to the nonmoving party. MCR 

2.116(G)(5); Maiden, 461 Mich at 120. A genuine issue of material fact exists if, when viewing 
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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 nonmoving party has identified 

issues in which there are no disputed 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 set 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 contradictory 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 relying on Dr. Baker’s affidavit to 

establish proximate cause because that affidavit was directly contradictory 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 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. In an action alleging 

medical malpractice, the plaintiff cannot recover for loss of . . . an opportunity to 

achieve a better result unless the opportunity was greater than 50%. 

 It is undisputed that Goedker’s bowel obstruction would have required surgical treatment 

regardless of when it was diagnosed and that bowel perforation is a common complication of 

bowel obstruction surgery. Goedker’s theory of the case is that had the medical professionals 

performed a radiological scan on September 29, 2010, instead of on September 30, 2010, her 

bowel obstruction would have been discovered sooner and its earlier discovery would have 

reduced her chances of suffering a bowel perforation. In other words, Goedker contends that the 

delayed diagnosis made a positive outcome for her surgery less likely. 

 Two of Goedker’s experts did not offer opinions supporting this theory. Dr. David 

Winston testified that, “I think she should have been kept in the 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 day earlier or two days earlier,” 

but “you would like to identify these and treat . . . earlier rather than later[.]” Neither expert 

opinioned whether a delayed diagnosis made Goedker’s injury more likely, and certainly neither 

opined regarding her opportunity to receive a better result. 

 In determining that a genuine issue of material fact existed regarding causation, the trial 

court relied on the affidavit of Dr. Baker, provided after his deposition, in which Dr. Baker stated 

that the medical professionals should have diagnosed a bowel obstruction on September 29, 
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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 radiology testing was 

performed prior [to] Mrs. Goedker being discharged home from the Forest Health 

Medical Center on September 29, 2010. 

c. That discharging Mrs. Goedker home from Forest Health Medical Center on 

September 29, 2010 without diagnosing her bowel obstruction created 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 more difficult to 

perform and the risk of complications, including a perforation, substantially 

increases the longer a bowel obstruction goes undiagnosed and untreated. 

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 included the risk of 

perforation of the bowel during surgery. 

f. That had the bowel obstruction been timely diagnosed during Mrs. Goedker’s 

post-operative admission at Forest Health Medical Center, the risk of perforation 

during the repair surgery would have been extremely low and more likely than not 

could have been avoided and would not have occurred. 

e. That had earlier surgery been performed at Forest Health Medical 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 such 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 have 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 used to seeing with their patients that they’re going 

home the first or second day, that they’re tolerating liquid, that they’re passing 

flatus, they’ve stopped belching, they’re not nauseated, and that 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 
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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 getting 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 inconsistent with 

the manifestation of an obstruction, true? 

A. Yes, sir. 

And Dr. Baker testified that the medical professionals should not 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 and 

appropriate for Dr. Schram to suspect and to formulate a treatment 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 already 

discussed, Mrs. Goedker’s abdominal pain improved, and, her ability 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? 
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A. Mrs. Goedker continued to have some abdominal distension and

nausea throughout the course of the day. I think that would have warranted at 

least a plain film abdominal series looking at the patients’ abdominal both in flat 

and erected position to see if she had continued ileus or she was developing signs 

of an obstruction. 

Q. Do you have an opinion as to what plain film would have shown if it 

had been ordered? Let’s say at noon on September 29th? 

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

 

 We conclude that Dr. Baker’s affidavit is contrary to his deposition testimony regarding 

causation. Dr. Baker stated in his affidavit that Goedker certainly had a bowel obstruction on 

September 29, 2010, and that a radiological scan would have discovered it, and that therefore the 

failure to diagnose it directly led to an increased risk of bowel perforation. However, at his 

deposition Dr. Baker testified that a radiological scan on the 29th would have shown a dilated 

bowel—which is consistent with an ileus. Dr. Baker also testified at his deposition that 

radiological testing should have been ordered if Goedker’s condition did not improve, and then 

acknowledged that Goedker’s condition improved throughout the day on September 29, 2010. 

Dr. Baker did not testify at his deposition that failure to conduct a radiological scan on 

September 29, 2010, led to a significantly increased risk of perforating Goedker’s bowel during 

her later surgery. However, that is what his affidavit provides. We conclude that Dr. Baker’s 

affidavit contradicted his deposition testimony, and that the trial court should not have 

considered Dr. Baker’s contradictory affidavit when ruling on the motion. 

 Because Dr. Baker’s contrary affidavit was the only support for the proposition that a 

radiological scan on September 29, 2010, would have led to a more positive outcome, we 

conclude that the trial court should have granted summary disposition. Accordingly, we direct 

the trial court to grant summary disposition in favor of the medical professionals. Given our 

resolution of this issue, we need not reach the medical professionals’ remaining issues.3

 

 

2

 Dr. Baker previously testified 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 on the 

28th]. 

Q. Which would be consistent with the presence of an ileus? 

A. Yes, sir. 

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 However, we note that given Dr. Baker’s failure to address medical probabilities in his 

affidavit, even if the trial court properly considered that affidavit, 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). 
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 We reverse and remand. We do not retain jurisdiction. The medical professionals may 

tax costs. MCR 7.219(A). 

/s/ Joel P. Hoekstra 

/s/ Peter D. O’Connell 

/s/ Christopher M. Murray