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### STATE OF MICHIGAN

COURT OF APPEALS

ROY RUSHA,

Plaintiff-Appellant, UNPUBLISHED October 4, 2016

v No. 326745 Wayne Circuit Court ADAM M EDELMAN MD, BADAI ABDELATIF MD, RAMESH KILARU MD, LISA REEVES MD, CORIZON HEALTH OF MICHIGAN a/k/a CORIZON HEALTH INC f/k/a PRISON HEALTH SERVICES (PHS), and CORIZON INC d/b/a CORRECTIONAL MEDICAL SYSTEMS, LC No. 13-006487-NH

Defendant-Appellees,

and

JEFFREY STIEVE MD, VASILIOS POZIOS MD, and PATRICK GEML PA,

Defendants.

Before: S HAPIRO , P.J., and H OEKSTRA and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Plaintiff appeals by right the tr ial court’s grant of summary disposition in favor of the defendants who remained in the case after various dismissals no t at issue in this appeal. 1 The trial court accurately summarized that “[t] he gravamen of plai ntiff’s claim is that he was diagnosed with multiple sclerosis (‘MS’) and that he had a seiz ure disorder and that he was not given proper treatment [by defe ndants] while incarcerated. As a result, plaintiff contends, the conditions were allowed to progress when they could have been e ffectively controlled with proper medical treatment.” The trial court disallowed plaintif f’s treating physician from presenting evidence as an expert, and it therefore concluded th at plaintiff’s remaining experts

1 For convenience, “defendants” will refer only to the defendant s presently at issue.-2- could not “quantify loss or proba bility that plaintiff’s result would have been different had plaintiff been referred to a neurologist [as plaintiff contende d].” The trial court further characterized the matter as a “lost opportunity to achieve a be tter result” claim and, because plaintiff could not establish the statutorily required “greater than 50%” loss of opportunity under MCL 600.2912a(2), granted summary disposition in favor of defen dants. We do not find the trial court’s exclusion of the expert to be error under the cir cumstances, but the trial court incorrectly found this to be a “lost opportunity” case. Rather than attempt to evaluate defendants’ alternate ground for affirmance on the existing rec ord, we vacate and remand for further proceedings.

I. OVERVIEW

Plaintiff was incarcerated in a facility that contracted with defendants to provide medical services to inmates. Plaintiff contends that he suffered from multiple sclerosis. It is undisputed that he saw defendants numerous times for a variety of ailments . It is also undisputed that defendants did not, inter alia , refer plaintiff to a neurologi st, treat him for MS, or, appar ently, believe that he had MS. Plain tiff contends that defendants imp roperly treated him. Whether or not defendants actually improperly treated him is not at issue in this appe al. The evidence, chaotic as it is, appears to indi cate, insofar as we can determ ine, that plaintiff di d consistently tell defendants that he had a history of MS during his treatment wit h them. Furthermore, the evidence indicates that defendants did actually take plaintiff’ s reports seriously enough to review the records available to him and perform some diagnostic tests, and they concluded that he did not have MS. Plaintiff was diagnosed with MS after his release . Some medical records indicate that he may have received a dia gnosis earlier, but defendants s eemingly did not receive those records until after pl aintiff’s discharge.

II. PROCEDURAL HISTORY

The tortuous procedural history of this case is, unfortunately , relevant to one of the issues on appeal. Plaintiff filed his complaint on May 17, 2013. The trial court entered a scheduling order on October 29, 2013, requiring witnesses to be exchanged by January 24, 2014, and cutting off discovery on March 28, 2014. A settlement conference was s cheduled for the “Case Evaluation date Plus 42 days”; although case evaluation was not specified more narrowly than “May, 2014.” Defendants filed a motion for partial summary dis position on July 30, 2013, and a motion to limit the affidavits of merit on August 9, 2013. The trial court entered a scheduling order on July 30, 2013, setting a hearing on the motion for par tial summary disposition for December 20, 2013; however, the lower court register of actions indicates that it was reset to January 31, 2014, and then to January 23, 2014, although we can find no orders obviously doing so in the lower court record. The trial court subsequently ent ered several substantively identical orders on November 11, 2013, December 19, 2013, and December 20 , 2013; one of which referenced the motion to limit affidavits of merit and the othe rs did not reference any motion whatsoever, stating that oral argument was scheduled for Januar y 31, 2014, and that responses to the motion were due by January 17, 2014.

Defendants filed a witness list on January 22, 2014. We can f ind no order specifying a hearing date of January 23, 2014. Nevertheless, on January 23, 2014, the trial court entered an order granting partial summary disposition in favor of defendan ts and dispensing with oral-3- argument because plaintiff had not filed a timely response. Pl aintiff filed a response to the motion for partial summary disposition the next day. Apparentl y, a hearing was in fact held on January 31, 2014, where plaintiff contends he first learned of the order and the untimeliness of his response. Plaintiff admitted that he had, however, receive d the scheduling order specifying a January 17, 2014, deadline and had overlooked it. On February 18, 2014, defendants filed a motion to dismiss and/or for discovery sanctions based on plain tiff’s failure to file a witness list and otherwise comply with discovery orders. The lower court re gister of actions reflects a motion hearing held on March 12, 2014, no transcript of which h as been provided. On the same day, the trial court entered an o rder requiring plaintiff to fi le his witness list within ten days and keeping discovery “open to the settlement conference date.” Th e trial court otherwise denied plaintiff’s motion for reconsideration, stating that plaintiff had received the scheduling order but failed to open it.

Plaintiff filed his 43-page witness list the same day, on Marc h 12, 2014. In relevant part, Dr. David Mathis, M.D., was listed as plaintiff’s expert “in th e field of Primary Care/Family Practice,” and Dr. Neil J. Farber, M.D., was listed as plaintif f’s expert “in the field of Internal Medicine.” Several other doctors were noted as potential “stan dard of care and/or proximate cause” witnesses. Notably, however, Dr. Omar Ahmad, M.D., the expert witness at issue, was not named anywhere on that lis t, in any capacity. Although the witness list included “Any and all physicians, nurses, therapist s, technicians, assistants, ai des, agents and/or employees, involved in the case and treatm ent of Roy Rusha at [various ins titutions], including, but not limited to” the individually named persons; according to his CV , Dr. Ahmad is associated with the Michigan Neuroscience Clin ic, which was not among the insti tutions named.

However, defendants were actually aware of Dr. Ahmad and that Dr. Ahmad was one of plaintiff’s post-incarcera tion treating physicians. 2 Defendants do not dispute that on August 19, 2014, they served notice on Dr. Ahmad for taking his deposition and to produce records on August 29, 2014. Just over a week later, defendants re-noticed Dr. Ahmad’s deposition for a different date. Defendants subs equently cancelled the depositi on altogether.

On April 14, 2014, the parties st ipulated to adjourn case eval uation. The trial court entered an order setting case evaluation for July of 2014 and h olding “[d]iscovery open to new evaluation date.” In the meanti me, defendants moved to compel discovery, arguing that they had served various discovery requests on plaintiff, responses to wh ich had been due in October of 2013 but most of which remained ou tstanding. Almost two months later, the trial court entered an order requiring plaintiff to “ provide the remaining discover y within 14 days” and “provide available dates for his depositi on within 7 days.” The trial c ourt subsequently granted what was apparently a unanimous request by all parties to further extend discovery by handwriting on a

2 As will be discussed, the trial court’s ruling expressly permi tted plaintiff to offer testimony from Dr. Ahmad as a factualwitness as one of plaintiff’s treating physicians, but not as an expert witness.-4- faxed letter 3 that the settlement conference would be pushed back by a month and discovery would remain open to that date.

In October, plaintiff filed a motion seeking to extend discove ry. Plaintiff stated that by then, the settlement conference was set for October 4, 2014. P laintiff did not specifically name Dr. Ahmad, but did assert that de fense counsel had unilaterally cancelled a number of depositions without any consultation with plaintiff’s counsel. Defendants responded by arguing that discovery had been extended multiple times already due to various failures on plaintiff’s part and that defendants had been ent irely cooperative. In support of the latter assertion, defendants attached a tome of printouts of various email correspondences b etween counsels. The trial court ultimately granted plaintiff a small measure of relief and orde red that “Plaintiff may depose Defendants’ standard of care ex perts (only) within 30 days (on or before November 30, 2014).”

Defendants had, in the meantime, also filed a motion for summa ry disposition arguing that on the basis of the testim ony from plaintiff’s expert witn esses, plaintiff was unable to establish a prima facie case of medical malpractice. In relevant part, defendants argued that plaintiff’s malpractice claim was based on “[lost] opportunity to achieve a better result.” Defendants also argued that pla intiff’s experts, not being neur ologists, could not actually render an opinion whether defendants’ act ions proximately caused anyth ing, so a “traditional” medical malpractice analysis must also fail. The trial court entered a scheduling order setting a hearing date for February 6, 2015, and requiring plaintiff’s response t o be filed and served by 4:00 pm on January 23, 2015.

Plaintiff responded that he had provided evidence showing that he suffered direct harm in the form of actual, not speculativ e, degeneration of his MS con dition. He alleged that during his incarceration, defendants ignored h is medical history and his s ymptoms of MS, and they refused to treat him or permit him to b e treated properl y. Plaintiff a ttached, for the firs t time, an affidavit from Dr. Ahmad. The affidavit set forth several opinions held by Dr. Ahmad as well as several statements of fact based on Dr. Ahmad’s treatmentof plaintiff. Plaintiff’s response was filed at 4:21:52 pm on January 23. Defenda nts pointed thi s tardiness ou t in their reply, as well as the 33- page length thereof in v iolation of MCR 2.119(A)(2).

Defendants contended, baldly, that plaintiff had conceded that the case was a “lost opportunity” action. 4 Defendants also argued that Dr. Ahmad’s affidavit should be s truck because he had not been on plaintiff’s witness list, that the a ffidavit was speculative and did not support plaintiff’s position in a ny event, and that plaintiff’s own evidence showed that he had not really suffered any harm. The trial court held a brief hearing at which plaintiff reiterated that

3 We cannot find an independent copy of that document in the rec ord, or indeed any other order to that effect. The lower court register of actions reflects n othing on that date. However, it does state in a note regarding case evaluation later that its date h ad been changed “per p/c/ from court on 6/12.”

4 As we will discuss in greater detail, we find absolutely no su ch concession anywhere in any pleading from plaintiff.-5- defendants had known of Dr. Ahmad and cancelled the deposition themselves, that he was not pursuing a lost opportunity claim , and that he had complied wit h scheduling orders.

The trial court ruled that Dr. Ahmad would not be permitted to testify as an expert because he had not been listed as one, but that Dr. Ahmad would be permitted to testify as a fact witness. The trial court took the remainder of the motion unde r advisement. The trial court subsequently entered an opinion and order that, in relevant par t, seemingly assumed without analysis that the instant action was, in fact, a “lost opportun ity” claim. The tri al court concluded that even if it took as a given that plaintiff did have MS prio r to entering prison, without Dr. Ahmad’s affidavit, plaintiff’s re maining experts presented only equivocal testimony and could not establish the requisite proximate causation. The trial cou rt therefore granted summary disposition in favor of defendant s. The trial court subsequent ly denied plaintiff’s motion for reconsideration, clarifying that it found the claim to be a “lo st opportunity” one based on plaintiff’s assertion that if de fendants had treated him proper ly, plaintiff “lost 100% chance of avoiding further progression and a dvancement of his disease.” This appeal followed.

III. STANDARD OF REVIEW

A grant of summary disposition under MCR 2.116(C)(10) is revie wed de novo on the basis of the entire record to de termine if the evidence, when v iewed in the light most favorable to the non-moving party, establishes a genuine issue regarding any material fact. Maiden v Rozwood , 461 Mich 109, 118-120; 597 NW2d 817 (1999). The trial court’ s decision whether to admit evidence is reviewed for an abuse of discretion, but prel iminary legal determinations of admissibility are reviewed de novo; it is necessarily an abuse of discretion to admit legally inadmissible evidence. People v Gursky , 486 Mich 596, 606; 786 NW2d 579 (2010). This Court otherwise reviews de novo the tr ial court’s determinations of l aw; however, any factual findings made by the trial court in support of its decision are reviewed for clear error, and ultimate discretionary decisions are reviewed for an abuse of that discr etion. Herald Co

, Inc v Eastern Mich Univ Bd of Regents , 475 Mich 463, 470-472; 719 NW2d 19 (2006). Under the abuse o f discretion standard, this Court “cannot disturb the trial court ’s decision unless it falls outside the principled range of outcomes.” Id . at 472. The trial court has the discretion to disallow testimony from a witness not prope rly listed on a witness list, but the trial court must carefully consider the circumstances of the case to determine whether suc h a drastic sanction is truly the most appropriate sanction. MCR 2.401(I)(2); Duray Development LLC v Perrin , 288 Mich App 143, 162, 164-165; 792 NW2d 749 (2010).

IV. DR. AHMAD AS AN EXPERT WITNESS

Resolution of this appeal turns in significant part on the sec ond issue raised by plaintiff, which we address first: whether the trial court properly exclu ded Dr. Ahmad from testifying as an expert witness. “The purpose of witness lists is to avoid ‘ trial by surprise.’” Grubor Enterprises Inc v Kortidis , 201 Mich App 625, 628; 506 NW2d 614 (1993). “[T]he mere fact that a witness list was not timely filed does not, in and of it self, justify the imposition of [barring an expert witness or dismissing an action].” Dean v Tucker , 182 Mich App 27, 32; 451 NW2d 571 (1990). Conversely, the trial court’s failure to ensure th at the record reflects the trial court’s consideration of the circumstances of the case and the alternat ives available does not, in and of itself, constitute an abuse of its discretion, unless the r ecord otherwise manifestly show s that-6- such a sanction was appropriate. See id . at 33-34; see also Duray Dev , 288 Mich App at 165. A nonexhaustive list of factors that should be considered include s:
(1) whether the violation was willful or accidental; (2) the pa rty’s history of refusing to comply with discovery requests (or refusal to discl ose witnesses); (3) the prejudice to the defendant; (4) actual notice to the defend ant of the witness and the length of time prior to trial that the defendant receiv ed such actual notice; (5) whether there exists a history of plaintiff’s engaging in d eliberate delay; (6) the degree of compliance by the plaintiff with other provisions of the court’s order; (7) an attempt by the plaintiff to timely cure the defec t[;] and (8) whether a lesser sanction would better serve the interests of justice. [ Duray Dev , 288 Mich App at 165, quoting Dean , 182 Mich App at 32-33.]

“In exercising its discretion, th e trial court should [also] de termine whether the party can prove the elements of its position based solely on the parties’ testi mony and any other documentary evidence.” Grubor Enterprises , 201 Mich App at 629.

As an initial matter, the trial court’s stated reasoning for e xcluding Dr. Ahmad as an expert witness is a single sentence that suggests that the tria l court did not consider any circumstance of the case other than plaintiff’s tardiness, alth ough as noted, the tr ial court also did not impose the most drastic sanction possible. There is no req uirement that the trial court pontificate ad nauseum . See MCR 2.517(A)(2). However, we find that the trial court’ s statements do not rise to the lev el of the “[b]rief, definite, and pertinent findings and conclusions” required by the cour t rule. Consequently, the res olution of this issue turns on whether the trial court’s decision was so clearly proper that n o other option would have been reasonable.

It is clear from the record that the trial court did in fact c onsider more than just plaintiff’s tardiness. The trial court permitted plaintiff the opportunity to show that in fact Dr. Ahmad had been indirectly or impliedly included in the witness list, but there is no evidence in the record that plaintiff was able to do s o. Defendants point out that pl aintiff missed numerous deadlines, had in fact only filed his witness list because he was directly ordered to do so, and first disclosed Dr. Ahmad as an expert only in response to defendants’ motion f or summary disposition. Plaintiff focuses on the fact that formalities notwithstanding, defendants had actually been aware of Dr. Ahmad for some considerable period of time and even voluntarily gave up their own efforts to depose him.

We find no abuse of discretion in the trial court’s decision t o permit plaintiff to call Dr. Ahmad as a factual witness but not as an expert. Defendants we re well aware that Dr. Ahmad was plaintiff’s treating physician, and they had access to Dr. Ahmad’s records, so they could not have been surprised by the content or relevancy of his factual testimony. We are not persuaded by defendants’ argument that plaintiff willfully flouted deadli nes, but the record amply supports defendants’ observation that plaintiff had missed many deadline s and the trial court had been generous in extending leeway to plaintiff. Mere untimely discl osure of Dr. Ahmad as an expert would be an insufficient basis by itself to bar his testimony a s an expert, but we find no abuse of discretion in finding that disclosure to be egregiously late he re, rather than a mere failure to comply with a technicality, especially in light of plaintiff’s other tardiness. It was not-7- unreasonable for the trial court to exercise its discretion to impose the limited sanction of precluding plaintiff from utilizi ng Dr. Ahmad as an expert, whi le permitting him to testify as a fact witness, that “late in the game.” The trial court’s decis ion in this regard is not “outside the principled range of outcomes.” Herald Co , 475 Mich at 472.

We therefore need not consider d efendants’ alter nate asserted bases for affirming the trial court’s decision.

V. NATURE OF PLAINTIFF’S CLAIM

Plaintiff also argues on appeal that the trial court erred in concluding that his claim is a “lost opportunity” claim. We agree.

The gravamen of plaintiff’s clai med injury, as set forth in th e complaint, is:

¶ 98: Due to the lack of medicati on, Mr. Rusha’s MS advanced pr ematurely and be [sic] began experiencing seizures and other MS symptoms incl uding numbness, tingling, and left-sided weakness.

* * *

¶ 109: To this day, Plaintiff continues to suffer neurological deficits as a result of the progression of his MS due to the failure of the Defendants to properly treat him.

* * *

¶ 122: As a direct and proximate result of the acts of general negligence, medical negligence, gross negligence and/or wanton or reckless miscondu ct and/or reckless disregard for the safety of the Plaintiff, Defendants, either directly or through their agents, servants a nd/or employees caused Plaintif f’s seizures and MS to worsen and caused pain, suffering disfigurement [sic], lo ss of function and disability which otherwise would not have occurred. Such acts were a significant contributing factor in causing the damages complained of thereo f [sic].

Consequently, the gravamen of plaintiff’s claim is that he dire ctly suffered a concrete injury as a consequence of defendants’ alleged improper care, and that inju ry was both symptoms of MS he suffered during his incarceration because of non-treatment and accelerated degeneration of his MS.

We note that we are baffled by defendants’ conclusion that thi s is a “lost opportunity for a better result” claim. Both here and in the trial court, defe ndants simply state it baldly. We are further baffled by the trial co urt’s unexplained adoption of th at conclusion with no stated analysis or apparent considera tion. In so doing, the trial cou rt took one statement from plaintiff out of context to justify its con clusion, even though that stat ement was clearly made by plaintiff in response to and disputing defendants’ assertion that he was advancing a “lost opportunity” claim. Courts, however, should look to the substance of a clai m or transaction, not pure-8- superficial details. See In re Traub Estate , 354 Mich 263, 278-279; 92 NW2d 480 (1958); Wilcox v Moore , 354 Mich 499, 504; 93 NW2d 288 (1958).

We emphasize that we express no opinion whatsoever as to the s ubstantive merits of plaintiff’s claim. Whether or not it can be proven, plaintiff has consistently alleged that he was actually harmed by defendants’ alleged malpractice, not that he suffered an increased risk of harm due to the alleged malpractice. This is precisely the critica l distinction between the two theories of medical malpractice. See Compton v Pass , 485 Mich 920, 921; 733 NW2d 664 (2009); Stone v Williamson , 482 Mich 144, 151-162 (T AYLOR , C.J.), 166-171 (C AVANAGH , J); 753 NW2d 106 (2008). The only way to arrive at defendants’ and the trial court’s interpretation of plaintiff’s claims is to conclude that past pain and sufferi ng and/or actual degeneration in a person’s physical condition are not, themselves, cognizable inj uries. Such a conclusion has no basis in law. Whether or not the proofs will ultimately suppor t it, plaintiff clearly, unambiguously, and consistently articulated a traditionalmedical malpractice action asserting that defendant’s alleged malprac tice directly caused him an act ual injury.

Defendants argue in the alternative that plaintiff also cannot prevail under a traditional medical malpractice theory. Under the circumstances, we declin e to consider that argument at this time. Rather, we conclude that the traditional medical ma lpractice argument is better directed at the trial court, which has the discretion, should i t wish to use it, to require or permit the parties to conduct additional briefing or discovery in ligh t of this Court’s resolution of the two issues addressed above. We express no opinion as to the me rits of defendants’ alternate argument.

VI. CONCLUSION

The trial court’s ruling as to Dr. Ahmad is affirmed. However , the trial court’s finding that this case is a “lost opportunity” case was erroneous, and therefore the trial court’s grant of summary disposition is vacated. We remand this matter to the t rial court for further proceedings consistent with this opinion as the trial court deems necessary or proper. We do not retain jurisdiction. No costs , neither party havi ng prevailed in full

. /s/ Douglas B. Shapiro /s/ Joel P. Hoekstra /s/ Amy Ronayne Krause