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### STATE OF MICHIGAN

COURT OF APPEALS

MARY STIRNEMANN, Personal Representative of the Estate of CRANDALL SUTTON,

Plaintiff-Appellee/Cross-Appellant, UNPUBLISHED December 8, 2015

v No. 323832
Oakland Circuit Court WILLIAM BEAUMONT HOSPITAL, ROYAL OAK SURGICAL ASSOCIATES PC, and ROBERT JURY, LC No. 2012-126706-NH

Defendants-Appellants/CrossAppellee,

and

KASIF QURESHI, also known as QURESHI KASIF,

Defendant.

Before: M URRAY , P.J., and M ETER and R IORDAN , JJ.

P ER C URIAM

.

Defendants, William Beaumont Hospital (Beaumont), Royal Oak Su rgical Associates, PC, and Robert Jury, 1 appeal as of right an order entering judgment in favor of plai ntiff.
Plaintiff 2 cross-appeals an order denying her motion for additur. We aff irm in part, and reverse in part, the order entering judgment in favor of plaintiff, and we affirm the trial court’s order denying plaintiff’s motion for additur.

1 Beaumont, Royal Oak Surgical Associates, PC, and Robert Jury w ill be referred to as defendants as they are the only rel evant defendants to this app eal.

2 Plaintiff refers to Mary Stirnemann, the decedent’s personal r epresentative.-2- I. FACTUAL BACKGROUND

This appeal arises out of the death of Crandall Sutton (Cranda ll). When Crandall was 81 years old, he suffered from a sore right knee and decided to ha ve knee replacement surgery. Prior to undergoing knee replacem ent surgery, Crandall was clea red to have the surgery by his cardiologist and his internal medicine physician, despite havin g atrial fibrillation, tachyarrhythmia, and hyperten sion. On March 18, 2009, Crandall had a successful knee replacement surgery.

After surgery, Crandall was dis charged from Beaumont and went to Heartland Rehabilitation Facility on March 21, 2009. The following day, Crandall began experiencing difficulty in breathing, abdominal pain, abdominal distension, nausea, and vomiting. As a result, Crandall went to the emergen cy room at Beaumont on March 23, 20 09.

Dr. Kasif Qureshi was the admitting physician. Robert Jury, a general surgeon at Royal Oak Surgical Associates, provided a general surgery consultatio n upon Crandall’s admission to the emergency room at Beaumont. Crandall was diagnosed with po stoperative ileus, which involves “the lack of motility of the bowel.” Dr. Jury recomme nded bowel rest and IV fluids and examined Crandall every day and assisted with Crandall’s care f rom March 23, 2009 to March 28, 2009. Rina Shah, a physician’s assistant under the supervi sion of Dr. Jury, also assisted in
the care of Crandall. On Mar ch 28, 2009, Crandall died as a re sult of multisystem organ failure.

Plaintiff later filed the inst ant medical malpractice action, alleging that Crandall suffered injury resulting from a breach of the applicable standard of ca re by defendants during Crandall’s postsurgical care. 3 Relevant to this appeal, plaintiff alleged that Jury was negl igent for failing to properly treat Crandall’s postope rative ileus. Specifically, p laintiff claimed that Jury should have either scheduled or perfor med a decompressive colonoscopy, or given the drug Neostigmine to Crandall to treat the postoperative ileus.

At trial, plaintiff’s medical expert, Leonard Francis Milewski opined Crandall suffered from a specific type of ileus, Ogilvie’s Syndrome. Ogilvie’s i s a type of ileus that affects the colon. The signs and symptoms of Ogilvie’s include a distended abdomen, abdominal pain, nausea, and vomiting. Evidence was presented that when Ogilvie ’s is left untreated, the colon is filled with air and gas and it continues to enlarge. The metho d of treatment for Ogilvie’s is to decompress the colon. In order to decompress the colon, a gene ral surgeon would order a decompressive colonoscopy or provide the medication Neostigmine . Milewski opined that it was a breach of the standard of care for failing to decompress the colon on March 26. Milewski opined that a decompressive colonoscopy or Neostigmine would ha ve prevented Crandall’s death, and that Jury breached the standard of care by continuin g only conservative measures, i.e., bowel rest and IV fluids, while caring for Crandall. Milewski testified that Crandall had a remaining life expectancy of 7.6 years had he not died.

3 Dr. Querishi was subsequentl y dismissed from the lawsuit.-3- On the other hand, defendants maintained that Jury adhered to the applicable standard of care when providing postsurgical care to Crandall. Specificall y, Jury opined that he adhered to the standard of care and did not give Crandall Neostigmine beca use he had a history of cardiac arrhythmia and Neostigmine could cause cardiac arrest. Jury be lieved that giving Crandall Neostigmine would have been “dangerous.” This opinion was bols tered by Scott Dulchavsky, defendant’s expert witness, who al so opined that Jury would hav e breached the standard of care if he gave Crandall Neostigmine because the drug can be dangero us to patients with cardiac
issues.

Dr. Jury also testified that performing a decompressive colono scopy would have required giving Crandall sedatives, which would have put Crandall at ris k of needing ventilator support. Dulchavsky opined that performing a decompressive colonoscopy w ould have been a “relatively high-risk procedure.”

Along with maintaining that Jury was not professionally negli gent, defendants
maintained that his conduct was not the cause of Crandall’s dea th. According to Jury and Dulchavsky, there were a “number of medical issues” that were “ complicating, contributing
factors” to Crandall’s death. D r. Jury believed that Crandall died as a result of a n infection in the knee or from bronchopneumonia. Dul chavsky, along with another expert Timothy Nostrant, opined that a decompressive colonoscopy or Neostigmine would no t have saved Crandall’s life.

After the close of proofs, closi ng arguments, and jury instruc tions, the jury rendered a verdict in plaintiff’s favor. T he jury awarded plaintiff $22,0 00 for past economic damages for medical and funeral expenses, and awarded $11,000 per year for eight years for loss of financial support. With regard to noneconomic damages, the jury awarded $15,000 for loss of companionship for the year of 2014, but did not award any damag es for loss of companionship for any other year. The jury di d not award plaintiff any damag es for pain and suffering.

After trial, plaintiff filed a motion for additur, arguing tha t the damages awarded were inadequate and against the great weight of the evidence. In op position, defendants argued that the trial court defer to the judgment of the jury regarding dam ages. After listening to arguments, the trial court stated that it would not rewrite the jury verdi ct and subsequently entered an order denying plaintiff’s motion for additur.

Before entering judgment in favor of plaintiff, the trial cour t held a collateral source hearing, pursuant to MCL 600.6303, to determine if any of plain tiff’s economic damages were paid or payable by a collateral source. At the hearing, defend ants argued that plaintiff acknowledged in her answer to in terrogatories that all economic losses were payable or had been paid by a collateral source. However, plaintiff argued that th e trial testimony established that prior to Crandall’s d eath, the Sutton fam ily’s household income was $39,000, and afte r his death, the household income decreased to $28,000. Ultimately, the tri al court found that plaintiff had suffered $11,000 in economic loss in the years following Cranda ll’s death and that the amount was not paid or payable by a collateral source, so it entered a n order denying defendants’ request to reduce the jury award . This appeal ensued.

II. DEFENDANTS’ APPEAL-4- A. ADMISSIBILITY OF RE NA SHAH’S DEPOSITION

1. HEARSAY

Defendants argue that the trial court abused its discretion byexcluding the deposition of Rana Shah on the basis that she was not available pursuant to t he Michigan Rules of Evidence governing hearsay. We conclude tha t defendants have waived thi s issue.

“A party waives an issue by affirmatively approving of a trial court’s action.” Muci v

State Farm Mut Auto Ins Co , 267 Mich App 431, 443; 705 NW2d 151 (2005), rev’d on other grounds 478 Mich 178 (2007). Moreover, a litigant may not harb or error, to which he or she consented, as an appellate parachute. Clohset v No Name Corp (On Remand) , 302 Mich App 550, 567; 840 NW2d 375 (2013).

At trial, defendants attempted to admit into evidence the depo sition of Rena Shah, who had since moved to Minnesota. Plaintiff objected on the basis that Shah’s deposition was inadmissible hearsay. In respons e to plaintiff’s hearsay objec tion, defendants con tended that the Shah deposition was admissible because the rules of evidence sp ecifically permit deposition testimony when a witness is not available. Ultimately, the tri al court held that the deposition testimony was inadmissible hearsay because defendant was unable to establish that Shah was unavailable pursuant to MRE 804(a) . After the trial court made its ruling, the trial court provided defendant an opportunity t o review the Michigan Rules of Evidence. After the short recess, defendants’ attorney st ated, “I apologize, Judge, I can ’t prove unavailability according to the Rules. Plain and simple. And so, I apologize, I’m sorry I got excited about it, but I can’t - - per that I can’t do it. All I can say is what happened.” Give n that defendants acknowledged that they were unable to prove that Shah was unavaila ble and approve d the trial court’ s ruling that the deposition was inadmissible hearsay, defendants cannot now comp lain about the admissibility of the deposition under the hearsay rules as their own unequivocal conduct waived this right. Marshall Lasser, PC v George , 252 Mich App 104, 109; 651 NW2d 158 (2002). Because defendants waived this issue, the waiver eliminated any error a nd appellate review is precluded. The Cadle Co v City of Kentwood , 285 Mich App 240, 255; 776 NW2d 145 (2009).

2. RULE OF COMPLETENESS

Defendants also argue, for the first time on appeal, that they were entitled to admit the entirety of Shah’s deposition pu rsuant to MRE 106. This unpres erved claim of error is reviewed for plain error affecting substantial rights. Lima Twp v Bateson , 302 Mich App 483, 503; 838 NW2d 898 (2013). To satisfy the plain error test, (1) error mu st have occurred, (2) the error must be plain, i.e., clear or obvious, and (3) the plain error affected substantial rights. Kern v
Blethen-Coluni , 240 Mich App 333, 336; 612 NW2d 838 (2000).

The “rule of completeness” i s contained in MRE 106, which prov ides:

When a writing or recorded statement or part thereof is introdu ced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.-5- Defendants’ principal contention is that the rule of completen ess required the admission of Shah’s deposition testimony to provide clarification to Shah ’s medical notes plaintiff admitted at trial. However, defendants have not established that fairne ss required Shah’s deposition to be considered contemporaneously with her medical notes as Shah’s m edical notes were complete without the introduction of her deposition testimony. While Sh ah’s deposition testimony may have explained her medical notes, her medical notes were not in complete and spoke for themselves. Furthermore, although plaintiff questioned many of the witnesses regarding Shah’s medical notes that were admitted into evidence, no portion of S hah’s deposition was admitted at trial or read into the record before the jury. As a result, de fendants were not entitled to request that plaintiff introduce any othe r part of the deposition testi mony. MRE 106. As such, no error
occurred.

B. SUPPLEMENTAL JURY INSTRUCTION

Defendants next argue that reversal is required as the trial c ourt gave an erroneous supplemental jury instruction. A trial court’s determination w ith regard to a supplemental jury
instruction is reviewed for an abuse of discretion and this Cou rt “will not reverse a trial court’s decision regarding supplemental instructions unless failure to vacate the verdict would be inconsistent with substantial justice.” Guerrerro v Smith , 280 Mich App 647, 660; 761 NW2d 723 (2008), quoting Grow v W A Thomas Co , 236 Mich App 696, 702; 601 NW2d 426 (1999).

Jury instructions are reviewed in their entirety and “[e]ven i f somewhat imperfect,
instructions do not create error requiring reversal if, on bala nce, the theories of the parties and the applicable law are adequately and fairly presented to the j ury.” Case v Consumers Power

Co. , 463 Mich 1, 6; 615 NW2d 17 (2000). “When the standard jury i nstructions do not adequately cover an area, the trial court is obligated to give additional instructions when requested if the supplemental instructions properly inform the jury of the applicable law and are supported by the evidence.” Stoddard v Manufacturers Na t’l Bank of Grand Rapids , 234 Mich App 140, 162; 593 NW2d 630 (1999). A supplemental jury instruc tion, which is to be modeled as nearly as practicable after t he standard jury instructions, “must be concise, understandable, conversational, unslante d, and nonargumentative.” Id . at 163. Reversal is warranted where
instructional error resulted in s uch unfair prejudice to the co mplaining party that the failure to vacate the jury verdict would be inconsistent with substantial justice. Case , 463 Mich at 6.

To establish a cause of action for medical malpractice, a plai ntiff must prove that the defendant’s breach of the applicable standard of care proximate ly caused the plaintiff’s injuries. Lockridge v Oakwood Hosp , 285 Mich App 678, 684; 777 NW2d 511 (2009). The disputed
instruction in this case was int ended to aid the jury in determ ining whether plaintiff’s injuries were the proximate result of t he defendant’s breach of the appl icable standard of care.

After the close of proofs, the t rial court instructed the jury , in relevant part:

When I use the words “proximate cause,” I mean first that the n egligent conduct must have been a cause of Plaintiff’s injuries and second, thatthe plaintiff’s injuries must have been a type that is a natural and probable r esult of the negligent conduct. There may be more than one proximate cause. To be a proximate cause, the claimed negligence need not be the only cause nor the last cause. A cause-6- may be proximate, although it and other cause – it and another cause act at the
same time or in a combination to produce the occurrence.

* * *

The Plaintiff has the burden of proof on each of the following: First, that the Defendant was professionally neglig ent in one or more of the wa ys claimed by the Plaintiff as stated in these instructions. Two, that the plain tiff has sustained injuries and damages. There, that the professional negligence or malpractice of the Defendant was the proximate cause of the injury and damages to the Plaintiff. Your verdict will be for the Plaintiff if the Defendant was neg ligent and such negligence was a proximate cause to the Plaintiff’s injuries an d if there were damages. Your verdict will be f or the Defendant if the Defenda nt was not professionally negligent or did not commit malpractice, or if t he Defendant was professionally negligent or did commit malpractice, but such pr ofessional negligence or malpractice was not a proximate cause of the Plai ntiff’s injuries or damages, or if the Plaintiff was not injured or damaged.

The following day, after the trial court read the deadlocked j ury instruction and suggested that the jury list the issues that “divide or confuse” them, th e jury wrote a note to the trial court that provided, “We are unable to -- we are unable to decide on question number 3 [on the verdict form].” Question 3 on the verdict form stated, “Was the defend ants’ professional negligence a proximate cause of injury and/or damages to Crandell [sic] Sutt on and/or his surviving family
members?”

After receiving the note from t he jury, the trial court subseq uently instructed the jury:

And I’m going to instruct you that in order for the Plaintiff to establish the requisite proximate causation in this medical malpractice actio n, she must show specific facts that would support a reasonable inference of a l ogical sequence of cause and effect. The evidence need not negate all other cause s, but the evidence must convince you by a preponderance of the evidence that Dr. J ury’s negligent
conduct was a cause of Mr. Sutto n’s death, and that Mr. Sutton’ s death was a natural and probable result of D r. Jury’s negligent conduct.

Having reviewed the jury instru ctions, the trial court’s instr uctions concerning proximate cause were adequate. The supplemental jury instruction require d plaintiff to prove by a preponderance of the evidence that Robert Jury’s conduct was a cause of Crandall’s death, that plaintiff was required to set forth facts that would support a reasonable inference of a logical sequence of cause and effect, and that Robert Jury’s conduct wa s a natural and probable result of Robert Jury’s negligent conduct, all in accordance with applica ble law. See Craig v Oakwood Hosp , 471 Mich 67, 87; 684 NW2d 296 (2004) (stating “a plaintiff es tablishes that the defendant’s conduct was a cause in fact of his injuries only if he sets forth specific facts that would support a reasonable infer ence of a logical sequence of c ause and effect.”) (citation and quotation marks omitted); Lockridge , 285 Mich App at 689 (holding a plaintiff must prove that the plaintiff’s damages and injuries are a natural and probable result of a defendant’s negligence.). While the trial c ourt’s supplemental instruction did not contain the phrase “but the-7- evidence must exclude other reasonable hypotheses with a fair a mount of certainty,” the trial court’s supplemental instruction was responsive to the jury’s r equest; was concise, understandable, conversational, unslanted, and nonargumentative ; and defendants suffered little prejudice from the phrase being omitted because the trial court nevertheless instructed the jury that plaintiff was required to prove proximate cause by the pre ponderance of the evidence by showing specific facts that woul d support a reasonable inferenc e of a logical sequence of cause and effect. The court adequately instructed the jury to protec t against the possibility that the verdict was rendered upon a mere possibility or plausible expla nation of causation. See Craig

, 471 Mich at 87.

Defendants’ main contention is that the supplemental jury inst ruction “cannot be considered unslanted” because it interfered with the jury’s rol e in determining whether Dr. Jury was professionally negligent. D espite defendants’ contention, neither the jury verdict form nor the trial court’s instructions indicated that the jury was requ ired to find that Dr. Jury was negligent. More importantly, the record shows that the jury wa s past the question of Dr. Jury’s negligence at the time they considered the supplemental instruc tion. In fact, Question 1 on the jury verdict form specifically asked, “Was the defendant, Rober t Jury, M.D., professionally negligent?” The verdict form th en instructed the jury not to a nswer subsequent questions if it responded negatively to Question 1. Because jurors are presume d to follow their instructions, Zaremba Equip, Inc v Harco Nat’l Ins Co , 302 Mich App 7, 25; 837 NW2d 686 (2013), the jury would have already determined that Robert Jury was professional ly negligent because the jury had proceeded to Question 3. Thus, the jury instruction did no t interfere with the jury’s role in determining whether Dr. Jury was professionally negligent, as t hat determination was already made by the jury at the time the trial court provided the jury with the supplemental instruction. After reviewing the jury instru ctions in their entirety, we dis cern no error demanding relief.

C. COLLATERAL SOURCE RULE

Defendants also challenge the t rial court’s factual findings c oncerning economic expenses that were paid or payable by a collateral source. We review a trial court’s findings of
fact for clear error. Chapdelaine v Sochocki , 247 Mich App 167, 169; 635 NW2d 339 (2001). “Clear error exists where, after a review of the record, the re viewing court is left with a firm and
definite conviction that a mistake has been made.” Marshall Lasser, PC , 252 Mich App at 110. A trial court’s interpretation and application of the collatera l source rule, as set forth in MCL 600.6303, is reviewed de novo. Shivers v Schmiege , 285 Mich App 636, 653; 776 NW2d 669 (2009). MCL 600.6303 provides, in relevant part:

In a personal injury action in which the plaintiff seeks to re cover for the expense of medical care, rehabi litation services, loss of earni ngs, loss of earning capacity, or other economic loss, evidence to establish that th e expense or loss was paid or is payable, in whole or in part, by a collateral so urce shall be admissible to the court in which the action was brought after a verdict for the plaintiff and before a judgment is entered on the verdict. Sub ject to subsection (5), if the court determines that all or part of the plaintiff' s expense or loss has been paid or is payable by a collateral source, the court shall reduce that portion of the judgment which represents damages paid or payable by a c ollateral source by an amount equal to the sum determined pursuant to subsection (2).-8- “Collateral source” means benefits received or receivable from an insurance policy; benefits payable pursuant to a contract w ith a health care corporation, dental care corporation, or health maintenance organization; employ ee benefits; social security be nefits; worker’s compensation benefits; or Medicare benefits. MCL 600.6303(4).

The trial court clearly erred in finding that plaintiff had eco nomic damages not paid or payable by a collateral source. Attached to defendants’ reques t for a collateral source hearing was plaintiff’s answer to inte rrogatories. Plaintiff’s interro gatory answers state , in relevant part:

30. Do you admit that the amount claimed by you for lost incom e, lost wages, or lost earning, medical bills, hospital expenses or any other amounts claimed as out-of-pocket expenses have been paid or are payable by a collateral
source such as benefits received or receivable from an insuranc e policy, healthcare corporation, dental c are corporation, health mainten ance organization, employee benefits, social security benefits, worker’s compensat ion and/or
Medicare benefits?

ANSWER: YES

31. If your answer to the preceding interrogatory is in the neg ative, please identify with specificity the exact amount of the lost i ncome, lost wages or lost earning, medical expenses, hospital bills to date which we re not paid or are not payable by a collateral source and state with specificity t he exact nature of your computation to reach tha t figure if any. (See MCLA 600.63 03).

ANSWER: Not applicable.

At the collateral source heari ng, plaintiff argued that the tr ial testimony demonstrated that plaintiff suffered an $11,000 loss in financial support per yea r upon Crandall’s death. Further, plaintiff submitted social security and pensions statements to the trial court to substantiate the amount of loss in financial support for the years after Crandal l’s death and to demonstrate that plaintiff’s economic loss was not paid or payable by social sec urity or Cranda ll’s pension. Although plaintiff presented evidence that the economic loss wa s not paid or payable by social security or Crandall’s pension (employee benefits), plaintiff s till failed to present evidence that the economic loss was not paid o r payable by any other of the c ollateral sources s et forth in MCL 600.6303(4), which was required to r ebut her admission in her i nterrogatory answer. See Bachus v West Traverse Twp (On Remand) , 122 Mich App 557, 559-562; 332 NW2d 535 (1983) (holding that the trial court clearly erred in its factual find ings when a party did not rebut the admission contained in their answer to interrogatories at an ev identiary hearing). Therefore, the trial court clearly erred in fi nding, on this record, that plai ntiff had economic damages that were not paid or payable by a collateral source. Id . Because plaintiff stated in her answers to interrogatories that alleconomic damages were paid or payable by a collateral source, the trial court, on remand, shall reduce that portion of the judgment whi ch represents damages paid or payable by a collateral source. MCL 600.6303.

III. PLAINTIFF’S APPEAL-9- Plaintiff argues that the trial court abused its discretion wh en it denied plaintiff’s motion for additur. Specifically, plai ntiff argues that the jury’s aw ard for loss of companionship is inadequate and against the great weight of the evidence. “This Court reviews a trial court’s decision on a motion for additur or a new trial for [an] abuse of discretion.” Taylor v Kent Radiology, PC , 286 Mich App 490, 524; 780 NW2d 900 (2009). A court abuses i ts discretion
when its decision falls outside t he range of principled outcome s. Pontiac Fire Fighters Union Local 376 v City of Pontiac , 482 Mich 1, 8; 753 NW2d 595 (2008).

A motion for new trial is supportable when, the verdict was “clearly or grossly inadequate or excessive,” or the verdict was against the great weight of the evidence. See MCR 2.611(A)(1)(d) and (e). The party asserting a claim has the bu rden of proving damages with reasonable certainty. Berrios v Miles, Inc , 226 Mich App 470, 478; 574 NW2d 677 (1997). This Court will defer to the judgment of the jury with regard to the weight to be accorded to the evidence concerning damages and “the jury is free to credit or discredit any testimony.” Taylor

, 286 Mich App at 525.

At trial, plaintiff presented testimony concerning noneconomic loss. With regard to loss of companionship, evidence was presented that Crandall was very involved in his children and grandchildren’s lives. Crandall ’s daughters, plaintiff and Lin da Kuhn, along with Crandall’s wife, Carrie Sutton (Carrie), e ngaged in a variety of activitie s with Crandall prior to his death. Further, evidence was presented that Carrie has been “very lone ly” since Crandall’s death. Although the testimony at trial c ould have supported some measu re of damages for loss of companionship for the years of 2009 to 2013 and from 2015 to 20 16, a reasonable jury could have concluded that plaintiff failed to meet her burden of proo f for those time periods. Particularly, the jury could have discredited part of the testi mony from plaintiff, Kuhn, and
Carrie. Taylor , 286 Mich App at 525. Accordingly, we will defer to the judgm ent of the jury in this regard. Id

.

Plaintiff also asserts that the jury’s verdict was against the great weight of the evidence because the jury failed to award damages for loss of society an d companionship for the years ranging from 2009 to 2013 and 2015 to 2016, but awarded damages for loss of financial support for those same years. However, “no legal principle requires th e jury to award one item of damages merely because it has awarded another item.” Kelly v Builders Square, Inc , 465 Mich 29, 39; 632 NW2d 912 (2001). Simply put, the jury was not requ ired to award damages for loss of society and companionship merely as a result of awarding dam ages for loss of financial support because the jury might have evaluated the evidence on p ain and suffering differently from the evidence concerning other proof of damages. Id . Therefore, the trial court’s denial of plaintiff’s motion for additur or a new trial was not outside t he range of reasonable and principled outcomes.

IV. CONCLUSION

For the reasons stated herein, we affirm in part, and reverse in part, the order entering judgment in favor of plaintiff, a nd we affirm the trial court’s order denying plain tiff’s motion for-10- additur. No costs, as neither pa rty fully prevailed on appeal. MCR 7.219(A).

/s/ Christopher M. Murray
/s/ Patrick M. Meter
/s/ Michael J. Riordan