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### STATE OF MICHIGAN

COURT OF APPEALS

EDIE TAYLOR,

Plaintiff-Appellant, UNPUBLISHED February 3, 2015

v No. 317766 Saginaw Circuit Court KAREN MCCARTHY, CRNA, ANESTHESIA STAFFING CONSULTANTS, INC.,
MACKINAW SURGERY C ENTER, L.L.C., and NUETERRA HEALTHCARE MANAGEMENT, L.L.C., LC No. 11-014069-NH

Defendants-Appellees,
and

COVENANT MEDICAL CENTER, INC. d/b/a
COVENANT HEALTHC ARE-MACKINAW,

Defendant.

Before: O’C ONNELL , P.J., and B ORRELLO and G LEICHER , JJ.

P ER C URIAM

.
Plaintiff Edie Taylor underwent surgery for hemorrhoids. The operation itself was uneventful. But at its outset, d efendant Karen McCarthy, CRNA, the nurse anesthetist responsible for Taylor’s anesthe sia, encountered difficulty int ubating Taylor. With the assistance of an anesthesiologi st, McCarthy successfully placed the endotracheal tube.

Three weeks after the surgery, a CT scan revealed a small frac ture of Taylor’s right mandible. Taylor filed this lawsuit, alleging that a negligent ly performed intubation caused the fracture and other jaw -related problems.-2- The trial court granted defendants’ motion for summary disposi tion, ruling that Taylor lacked expert testimony substan tiating that the intubation caus ed her claimed injuries. We
affirm. 1

I. BACKGROUND FACT S AND PROCEEDINGS

Taylor’s out-patient hemorrhoid surgery was performed on Septe mber 28, 2009. McCarthy recounted at her deposition that her initial attempt t o intubate Taylor failed because she was unable to fully visualize Taylor’s vocal cords. With a ssistance from the attending anesthesiologist, Dr. Craig B onhoff, McCarthy repositioned Tayl or’s head while Dr. Bonhofff applied cricoid pressure. These maneuvers brought Taylor’s voc al cords into better view. McCarthy then bent the endotrach eal tube into a “hockey stick” configuration, which allowed her to pass it into Taylor’s trachea. During the surgery, McCarthy noted blood in the endotracheal tube. After she extubated Tay lor, McCarthy observed blood in T aylor’s suctioned secretions.

Taylor testified that when she awoke from the anesthesia, her mouth was “sore and painful” and felt worse than her rectum. At home, she had diff iculty eating and opening and closing her mouth. Taylor could see abnormal areas inside of h er mouth she described as “scrapings.”

On October 8, 10 days after the operation, Taylor’s general su rgeon performed a routine postsurgical checkup. Taylor told him of her mouth pain. The surgeon’s note states: “She did sustain some perioral lacerations . Examination of the oral cav ity today does not reveal any large abscess. There are some small scrapings internally.”

On October 13, Taylor went to an emergency room complaining of jaw pain. The emergency room record provides: “had surgery in sept and ever s ince has had pain in mouth, states something ‘poked her mouth when she was put under’ now j aw hurts and has headache[.]” A physician’s note indicates: “in the right lower jaw she has a wisdom tooth that is coming and irregular. . . . I do not believe this problem is related to e ndotracheal intubation. [I] believe this is a dental problem.”

On October 15, Taylor visited a dentist who diagnosed her prob lem as a “canker sore,” but the next day determined that alveolar bone was exposed in a n area near her tongue. 2 Taylor then consulted an oral surgeon, Dr. Reynold J. Baumstark. Dr. Baumstark confirmed the presence of exposed bone in her right mandible, near a wisdom t ooth. The wisdom tooth was impacted and infected, and Dr. Baumstark recommended its remova l.

1 Taylor raises a second appellate issue as well: whether the tr ial court correctly granted summary disposition on agency grounds to Mackinaw Surgery Cente r and Nueterra Healthcare Management, LLC. Given our resolution of the proximate cause q uestion, we need not consider
this issue.

2 Alveolar bone is the “thin layer of bone . . . surrounding and containing the teeth.” Dorland’s Medical Dictionary (25th ed), p 217.-3- Apparently Taylor did not have the money for the extraction. On October 21, she returned to the emergency room complaining of “severe throbbing ” right jaw pain. A CT scan obtained that day revealed a small fracture of the tongue-side of the right mandible “at the region of the last molar.” Dr. Baumstark removed the impacted wisdom tooth. Unfortunately, Taylor required an additional operation to remove a retained bone frag ment. She also developed an infection near the operative si te as well as “temporomandibular joint pain.” Both conditions
necessitated addi tional treatment.

Taylor’s complaint alleges that McCarthy fractured Taylor’s ja w during the intubation. According to Taylor’s complaint, “[a]s a consequence of [McCart hy’s] negligence, [Taylor] required multiple surgeries to repair the fracture and develope d a significant infection requiring multiple hospitalizations and a prolonged course of intravenous antibiotics, as well as the sequelae therefrom. . . .” An affidavit of merit signed by Char les Barton, CRNA, avers that McCarthy used “excessive and/or inordinate force” when intubati ng Taylor, “which caused a fracture to the patient’s mandible.”

The parties obtained depositions of most of the physicians and dentists who treated Taylor. Although Dr. Baumstark conceded that the exposed alveo lar bone “could be consistent with an injury received during intubation,” he offered no opini on regarding the cause of Taylor’s jaw fracture. Further, he declined to state “within a reasonab le degree of medical certainty or probability” that the intubation had actually caused the expose d bone. Another treating dentist agreed that a jaw fracture should not occur during intubation “ in the absence of negligence.” The dentist offered no opinion regarding the cause of Taylor’s fracture, or the relationship of the fracture to her other ja w-related problems.

Barton testified that in his vi ew, Taylor’s mandible fractured because McCarthy negligently failed to administer adequate paralytic medication before attempting to pass the endotracheal tube. Taylor’s unrel axed jaw muscle worked as a f orce opposing McCarthy’s intubation efforts, Barton expl ained. He summarized: “I think the fracture occurred with the lifting of the jaw against the non-paralyzed masseter muscle th at’s resisting it. And that’s why it snaps right at that level where the masseter muscle is and wher e the last molar is.”

Defendants moved for summary disposition pursuant to MCR 2.116 (C)(10), contending that Barton was unqualified to provide expert causation testimo ny and that Taylor had offered no other competent evidence of proximate cause. According to defe ndants, nurses such as Barton are not permitted to make medical diagnoses, automatically dise ntitling them to testify regarding the cause of a patient’s disease or injury.

Taylor responded that Michigan law permits plaintiffs to estab lish causation with nonspeculative circumstantial ev idence, and that in this case, the evidence pointed directly to the intubation as the cause of Taylor’s jaw problems. Taylor furth er invoked the res ipsa loquitor doctrine. Taylor’s brief did not address whether Barton was qu alified to testify to proximate cause, and did not cite any of B arton’s testimony. During the oral argument, McCarthy’s attorney strenuously emphasized t hat Barton’s testimony “simply can’t give them causation.” Taylor’s counsel never addressed this argument.-4- In a written opinion, t he trial court grante d defendants’ summ ary disposition motion. The court first noted, “Plaintiff concedes that she has no expert t o testify as to causation.” The court then rejected Taylor’s argument that circumstantial evidence of causation sufficed, citing caselaw generally holding that expert testimony is necessary to establish a medical malpractice claim. Res ipsa loquitor, the court continued, allows a fact f inder to infer negligence, but not proximate cause. The trial court concluded: “Leaving a jury o f laypeople to speculate, in the absence of expert testimony, that Plaintiff’s intubation caused the injuries in question is simply not proper.” Taylor now challenge s the trial court’s summary d isposition ruling.

II. ANALYSIS

Taylor structures her appellate argument around Barton’s depos ition testimony, cited above, that McCarthy’s negligence during the intubation caused Taylor’s mandible fracture. According to Taylor’s appellate b rief, “[t]he trial court erred in disregarding th e testimony of Mr. Barton, a CRNA, just like McCarth y.” The brief continues, “His testimony, if believed, directly establishes ‘proximate cause.’ ” (Citation omitted.)

Defendants contend that Taylor failed to preserve this challen ge to the trial court’s ruling. Defendants correctly assert that i n the circuit court, Taylor f ailed to cite any te stimony offered by Barton in support of her proximate causation claim. Accordingl y, defendants insist, Taylor’s current argument—that Barton’s testimony sufficed to establish proximate cause—should not be
considered.

We agree with defendants that Taylor’s proximate causation arg ument in the trial court bears little resemblance to the argument she makes on appeal, a nd that Taylor failed to cite any portion of Barton’s testimony in h er trial court brief. Accord ingly, we decline to consider it. See Barnard Mfg Co, Inc v Gates Performance Engineering, Inc , 285 Mich App 362, 375-379; 775 NW2d 618 (2009).

We find no merit in Taylor’s remaining arguments. This Court has repeatedly held that in a medical malpractice case, “Expert testimony is essential t o establish a causal link between the alleged negligence and the alleged injury.” Pennington v Longabaugh , 271 Mich App 101, 104; 719 NW2d 616 (2006). We find this rule particularly appli cable here, as Dr. Baumstark’s testimony supports that Taylor’s impacted wisdom tooth or the n earby infected bone may have
caused or contributed t o her jaw fracture.

Lastly, we reject Taylor’s res ipsa loquitur argument on the s ame ground as did the trial court. “The major purpose of the doctrine of res ipsa loquitur is to create at lea st an inference of-5- negligence when the plaintiff is unable to prove the actual occ urrence of a negligent act.” Jones
v Porretta , 428 Mich 132, 150; 405 NW2d 863 (1987). The doctrine does no t supply an inference of proximate cause.

We affirm.

/s/ Peter D. O'Connell /s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher