-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

KAY FRAZIER,

Plaintiff-Appellant, UNPUBLISHED May 24, 2016

v No. 325241 Ingham Circuit Court GREGORY M. UITVLUGT, M.D., and EAST LANSING ORTHOPEDICS ASSOCIATION, P.C., LC No. 11-000672-NH

Defendants-Appellees.

Before: S AWYER , P.J., and M URPHY and R ONAYNE K RAUSE , JJ.

P ER C URIAM

.

Plaintiff appeals as of right from a judgment of no cause of a ction in this medical malpractice action entered follo wing a jury trial. We affirm.

Plaintiff treated unsuccessfully with a podiatrist in an attem pt to relieve pain in her ankles and feet caused by congenital fl at feet and bunions. She there after contacted defendant Gregory M. Uitvlugt, M.D., 1 an orthopedic surgeon employed by defendant East Lansing Ortho pedics Association, P.C., because she wanted to explore surgical optio ns. During an appointment with defendant, plaintiff initially de scribed her complaint as bunio n pain in her right foot. After listening to plaintiff’s descriptions of the pain she was exper iencing and obtaining x-rays, defendant discussed treatment options with plaintiff. He expla ined the risks and benefits of surgery, including a surgical procedure known as the “All Ameri can.” 2 Plaintiff decided to have the All American procedure on her left foot on February 2, 2009 . However, after further reviewing the information provided to her by defendant, plainti ff decided that she wanted surgery on the right foot inst ead of the left foot. Plaintiff informed defendant’s office of her decision on January 9, 2009.

1 Use of the singular term “defe ndant” in this opinion refers to Dr. Uitvlugt.

2 Defendant testified that “All Am erican” is a generic term that incorporates a series of procedures to address an acquired flat foot.-2- On the date scheduled for surgery, defendant informed hospital staff not to give any medication to plaintiff before he had the opportunity to talk w ith her to determine what her primary complaints were at that time and to confirm the surgery she wanted. Plaintiff’s primary complaint at the time involved right foot pain. According to d efendant, he explained to plaintiff that a bunionectomy would allevi ate the bunion pain but would n ot address the pa thology of the bunion, which included a tight heel ligament and a flat foot. He explained to plaintiff that he could perform the All American p rocedure on her right foot to a ddress all of the foot and ankle issues, or he could perform a bunionectomy, or she could choose not to have surgery at all. Plaintiff agreed that defendant told her that the decision was hers to make and that she initialed a revised consent form authorizing defendant to perform the All A merican procedure on her right foot. Plaintiff does not dispute that defendant properly perfo rmed the surgery and that she never complained to defendant or any hosp ital staff about the surgica l procedure performed.

At the end of April 2009, plaintiff addressed with defendant h er concern about drainage in the area of the surgery. Def endant did not observe any clin ical signs of inf ection. On May 17, 2009, plaintiff went to an urgent care center with this same co ncern and was advised to go to the hospital. Laboratory tests performed at the hospital did not r eveal the presence of an infection,

but defendant chose to treat the situation aggressively. He th us performed a second surgery on May 19, 2009 to debride the wound and remove all of the hardwar e that had been placed during the first surgery. Defendant obs erved no loose hardware or bre akage, both of which would have been indicative of infection. Laboratory tests were normal, bu t deep culture samples came back suggestive of infection. By O ctober 29, 2009, the surgical wou nd was completely healed.

On May 29, 2011, plaintiff filed the present suit in which she alleged, in relevant part, that defendant was negligent i n performing an unnecessary surgi cal procedure and in failing to obtain proper informed consent. T he jury determined that defen dants were not professionally negligent in one or more of the ways alleged by plaintiff and, accordingly, the trial court entered a judgment of no cause of action.

Plaintiff first argues that the trial court abused its discret ion by allowing defendants to amend their witness list after the close of discovery to add a witness who could present evidence that Richard Vance, M.D., an expert witness on the standard of care, had been censured by the American Academy of Orthopedic Surgeons (AAOS). She also argue s that the trial court abused its discretion by denying her requ est to present evidence regar ding the AAOS disciplinary procedures in order to establish bias. This Court reviews a tr ial court’s decision to allow

amendment of the witness list for an abuse of discretion. Tisbury v Armstrong , 194 Mich App 19, 20; 486 NW2d 51 (1991). A preserved issue regarding the ad mission or exclusion of

evidence is also reviewed for an abuse of discretion. People v Burns , 494 Mich 104, 110; 832 NW2d 738 (2013). A trial court doe s not abuse its discretion w hen it chooses an outcome within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co , 476 Mich 372, 388; 719 NW2d 809 (2006).

We reject plaintiff’s argument t hat the trial court’s pretrial ruling that Dr. Vance could be impeached with evidence of the AAOS censure precluded her from presenting Dr. Vance as a witness. Plaintiff chose not to present Dr. Vance’s deposition testimony after the trial court made a pretrial ruling with impeachment implications. Plaintif f was faced with a decision whether to present Dr. Vance’s testimony and face the possibili ty that evidence of the censure-3- would be entered, or to not present Dr. Vance as a witness. Sh e could have presented Dr. Vance’s and sought to counter the impeachment. Or she could ha ve sought out a different witness. Or she could have proceeded as she did. Moreover, as our Supreme Court observed in People v Boyd, 470 Mich 313, 319; 682 NW2d 459 (2004), “any possible har m from a trial court’s ruling in limine allowing impeachment” is speculative u ntil the testimony occurs. Moreover, the witness testimony is necessary in order to do a p roper harmless error analysis. Id. Or, to paraphrase the Supreme Court, error only occurs when err or occurs. Id. at 370. In short, we will not speculate about how the trial would have turned out had plaintiff presented Dr. Vance’s testimony and defendant had presented its impeachment e vidence.

Plaintiff also argues that the trial court erred by leaving th e bench over plaintiff’s objection during the presentation of the videotaped deposition of plaintiff’s expert witness, Dr.

Ronald Lederman. This Court revi ews for an abuse of discretion the trial court’s conduct during

a trial. See People v Romano , 181 Mich App 204, 220; 448 NW2d 795 (1989).

Plaintiff relies on Scott v Angie’s, Inc , 153 Mich App 652; 396 NW2d 429 (1986), in support of her argument that error requiring reversal occurs wh en a trial judge violates MCL 600.1501(3) by absenting himself or herself during the presenta tion of testimony by way of deposition. However, in Scott at 660, this Court noted the gen eral rule that “the party complaining of the absence of the trial judge during the course of the proceedings is entitled to reversal only if he or she is pr ejudiced as a result of the abs ence.” See People v Morehouse , 328 Mich 689; 44 NW2d 830 (1950). The Scott Court concluded that the plaintiff there was prejudiced because the trial judge was absent from the bench du ring the “greater portion of plaintiff’s case” and because the trial court was unable to rul e on the plaintiff’s objection that defense counsel mischaracterized the deposition testimony of a doctor during closing argument, instructing the jury that it would have to “recall the testimon y as best you can.” Scott , 153 Mich App at 663-664. The Court concluded that the judge’s absence f rom the courtroom resulted in too great a potential for mate rial prejudice to plaintiff to be viewed as harmless error. Id . at 664.

In this case, when the jury viewed the videotaped depositions, the trial judge’s role was primarily as an observer of the trial, not as a participant in the trial process. Before each videotaped deposition was played, the judge gave the jury a cau tionary instruction characterizing his position at this point as a neutral observer. The judge in structed that no inference for or against either party was to be drawn as a result of his absence while the videotaped depositions were being played. “It is well established that jurors are pr esumed to follow their instructions.” People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998). We, however, caution the trial court that it is always a better practice to not leave the benc h during the playing of a videotaped deposition.

Affirmed.

/s/ David H. Sawyer /s/ William B. Murphy /s/ Amy Ronayne Krause