-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF DOROTHY KUBACKI, by EUGENE KUBACKI, Personal Representative,

Plaintiff-Appellee, UNPUBLISHED June 11, 2015

v No. 319821
Oakland Circuit Court KIEN TRAN, D.O., JOAN CRAWFORD, D.O., and EASTLAKE CARDIOVASCULAR, P.C., LC No. 2011-117424-NH

Defendants,

and

ST. JOHN MACOMB OAKLAND HOSPITAL,

Defendant-Appellant.

Before: S TEPHENS , P.J., and B ORRELLO and G ADOLA , JJ.

P ER C URIAM

.

In this medical malpractice cas e, defendant St. John Macomb Oa kland Hospital (St. John) appeals as of right from the judgment awarding plaintiff $635,1 77.11, entered following a jury verdict, and from th e trial court’s post- judgment order denying defendant’s motions for judgment notwithstanding the verdict (JNOV), a new trial, or remittitur. We reverse the lower court’s denial of defendant’s motion for JNOV, vacate the judgment in f avor of plaintiff, and remand for entry of a judgment of no cause of action in favor of St. John because legally insufficient evidence supported th e jury’s verdict.

I. BACKGROUND

In 2011, plaintiff filed a complaint asserting medical malprac tice claims against defendants, St. John, Kien Tran, D.O., Joan Crawford, D.O., and Eastlake Cardiovascular, P.C. This case involves numerous allegations of professional neglige nce, which plaintiff asserts occurred between September 6, 2008, when decedent, Dorothy Kuba cki, was admitted to St. John as an inpatient, and Sept ember 9, 2008, when she died of a cardiac event. On September 6, 2008, Kubacki, a 49-year-old married woman with a history of hy pertension and hyperlipidemia, presented to the St. John emergency room complaining of chest a nd back pain. Hospital staff-2- performed an EKG and discovered abnormal results, and an emerge ncy room physician diagnosed Kubacki with acute unstable angina. Kubacki was then admitted as an inpatient at St. John. During her hospitalization, Dr. Tran, an internal medici ne doctor, acted as Kubacki’s attending physician. Dr. Crawfor d, a cardiologist, also treate d Kubacki during her hospital stay.

Following trial, a jury determined that St. John was professio nally negligent and that its negligence proximately caused K ubacki’s injuries and death. Th e jury found no professional negligence on the part of Dr. Crawford or Eastlake Cardiovascul ar, P.C., and the trial court entered a judgment of no cause of action with respect to these defendants. The parties dismissed Dr. Tran by stipulation at the b eginning of trial. After award ing case evaluation sanctions, the trial court entered a judgment of $635,177.11 in favor of plain tiff against St. John. St. John filed motions for JNOV, or, in the alte rnative, a new trial or remitt itur. Following a hearing on the matter, the trial court de nied St. John’s motions.

II. STANDARD OF REVIEW

We review a trial court’s deci sion on a motion for JNOV de nov o. Genna v Jackson , 286 Mich App 413, 417; 781 NW2d 124 (2009). In reviewing the denia l of such a motion, we view the evidence and all legitimate inferences arising therefrom in a light most favorable to the nonmoving party to determine whether the moving party was entit led to judgment as a matter of
law. Id . A court should grant a motion for JNOV only “when there is i nsufficient evidence presented to create a triable issue for the jury.” Id. If reasonable jurors could reach different conclusions regarding the evidence presented at trial, a jury’s verdict must stand. Nelson v

Dubose , 291 Mich App 496, 499; 806 NW2d 333 (2011).

III. PROXIMATE CAUSATION

On appeal, St. John argues that the trial court erred in denyi ng its motion for JNOV. Specifically, St. John contends t hat plaintiff failed to presen t sufficient evidence from which reasonable jurors could conclude t hat any breach of the applica ble standards of care by St. John or its employees proximately caused decedent’s injuries or deat h. We agree.

“In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by def endant, (3) injury, and (4) proximate causation between the alleged breach and the injury.” Wischmeyer v Schanz , 449 Mich 469, 484; 536 NW2d 760 (1995) . “Failure to prove any one of these elements is fatal.” Id. “ ‘Proximate cause’ is a legal term of art that incorporates bo th cause in fact and legal (or ‘proximate’) cause.” Craig ex rel Craig v Oakwood Hosp , 471 Mich 67, 86; 684 NW2d 296 (2004). A jury must first find that a defendant’s negligence w as the cause in fact of a plaintiff’s injuries before it may deem the defendant’s conduct a proximate or legal cause of those injuries.

Id. at 87. “Generally, an act or omission is a cause in fact of a n injury only if the injury could not have occurred without (or ‘but for’) that act or omission.” Id.

A plaintiff need not show that a defendant’s conduct was the sole catalyst for an injury, but must produce sufficient evidence to permit a jury to conclu de that the conduct was a cause. Craig , 471 Mich at 87. Moreover, a plaintiff must demonstrate more than a mere possibility or a plausible explanation of a causal theory. Id . A valid theory of causation must be based on-3- specific facts in evidence that would support reasonable infere nces of cause and effect. Id

. Although the evidence need not negate all other possible causes , the evidence must “exclude other reasonable hypotheses with a fair amount of certainty.” Id . at 87-88 (citations and quotation marks omitted). “Where the connection between the de fendant’s negligent conduct and the plaintiff’s injuries is entirely speculative, the plain tiff cannot establish a prima facie case of negligence.” Id . at 93. In a medical malpractice case, “[e]xpert testimony is required to establish the standard of care and a breach of that standard, a s well as causation.” Kalaj v Khan

, 295 Mich App 420, 429; 820 NW2d 223 (2012) (citations omitted).

In this case, plaintiff’s theory was that St. John and its sta ff, including its nurses and an intern, breached standards of care and proximately caused Kubac ki’s injuries or death because the breaches delayed Dr. Crawford’s performance of a cardiac ca theterization that would have led to the discovery of a partia l occlusion of Kubacki’s left a nterior descending (LAD) artery and to the surgical placement of a stent before Kubacki’s fatal car diac event at 2:35 a.m. on September 9, 2008. We agree with St. John that plaintiff faile d to present sufficient evidence to demonstrate that St. John or its employees breached the applica ble standards of care and that those breaches proximately cause d Kubacki’s injuries or death. We will address each of plaintiff’s theories of liability in turn.

A. THE MIDNIGHT EKG

Plaintiff’s first theory of liability is that St. John’s staff , including its nurses and intern, Dr. Bradley Ayman, failed to properly read and report the abnor mal results of an EKG performed on Kubacki at 12:28 a.m. on September 8 (the midnight EKG) to a more qualified physician, such as Dr. Tran or Dr. Crawford. Plaintiff’s exper t cardiologist, Dr . Arthur Levene, testified that the midnight EKG was profoundly different than t he EKG taken on September 6 when Kubacki was first admitted at St. John, and that the midni ght EKG suggested that “this is a
cardiac situation.” No one on St . John’s staff called Dr. Tran or Dr. Crawford about the results of the midnight EKG, but according to Dr. Levene, someone shoul d have called. Plaintiff’s expert nurse, Sharon VanRiper, testified that the nurses and th e intern should have called the physicians above them to report th e significant changes in the midnight EKG. VanRiper claimed that the intern, Dr. Ayman, “di dn’t know what he was doing” whe n he read the EKG and an experienced nurse should have said, “hey, I don’t like this, th is is different.” VanRiper asserted that St. John should have had a system in place to make Dr. Aym an aware that he needed to call a more experienced physician, suc h as Dr. Tran or Dr. Crawford.

Assuming that plaintiff established a breach of the applicable standards of care on the part of Dr. Ayman and the nurses in failing to properly read an d report the results of the midnight EKG, plaintiff presented no specific facts establishing a causa l connection between this alleged breach and Kubacki’s injuries or death. Although Dr. Ayman andthe nurses did not contact Dr. Crawford or Dr. Tran immediately, Dr. Crawford examined the mid night EKG the next morning
and reviewed the results. Dr. C rawford concluded that the resu lts of the midnight EKG were abnormal, showed changes from the earlier EKG, and suggested th e possibility that Kubacki was suffering from ischemia. However, Dr. Crawford testified that although the results required further investigation, in her opinion, the results did not mand ate that Kubacki undergo a cardiac catheterization. Dr. Crawford testified that the midnight EKG had no effect on the outcome of the case, and that “[t]here w as nothing alarming about that EKG .”-4- Further, although plaintiff’s e xpert cardiologist, Dr. Levene, testified that the midnight EKG suggested “a cardiac situation” and opined that Dr. Tran or Dr. Crawford should have been called after it was taken, Dr. Levene testified that, in his op inion, a catheterization was not required immediately after the midnight EKG because Kubacki’s p ain went away at that point. Rather, Dr. Levene testified that a cardiac catheterization sho uld have been performed in the afternoon of September 8 when Kub acki developed reoccurring che st pain. There are no facts establishing that informing Dr. Crawford or Dr. Tran sooner abo ut the results of the midnight
EKG would have altered the course of treatment in this case. D r. Crawford’s testimony reflects that she did not believe a catheterization was required after r eviewing the results of the midnight EKG, and plaintiff’s own expert cardiologist indicated that a c atheterization was not needed until the afternoon of September 8 when Kubacki developed recurrent c hest pain. Accordingly, plaintiff did not present any sp ecific facts demonstrating a ca usal connection between the hospital staff’s failure to properly read or report the midnigh t EKG and any delay in the performance of a cardiac catheterization.

B. ST. JOHN’S TRANSFER POLICIES

Plaintiff’s second theory of lia bility is that St. John failed to implement a proper policy or procedure to effectuate patient t ransfers to another medical fa cility with a 24-hour catheterization lab if a physician ordered a cat heterization when St. John’s la b was closed. There is no evidence in the record establishing either a breach of the standard of c are or causation with respect to this theory of liability. Plaintiff’s expert nurse, VanRiper, testi fied that St. John needed policies or procedures to move a patient to another hospital if the cathete rization lab was not available at St. John. VanRiper testified that she was unaware of any such poli cies or procedures, and said that she had not seen such procedures at St. John. VanRiper acknowl edged that only doctors had the authority to order the transfer of a patient. At trial, Dr. Cr awford testified that although cardiac
catheterizations were not done at St. John on weekends or after regular business hours, a patient could be transferred promptly to another hospital if such a cat heterization was needed on an emergency basis.

VanRiper’s testimony reflects that she was unaware whether St. John had a policy for transferring patients to anothe r facility upon a physician’s or der to perform a catheterization after
St. John’s catheterization lab had closed. Accordingly, there is no basis in evidence to conclude that St. John lacked such a policy or procedure. Nor was there any evidence produced at trial to dispute Dr. Crawford’s testimony that a patient could be transferred promptly to another hospital if a catheterization was needed on an emergency basis. Therefo re, plaintiff has not established a
breach of the standard of care on t his theory of liability. No r was there any evidence presented at trial that any alleged breach of the standard of care proximate ly caused Kubacki’s injuries or death. VanRiper conceded that only a doctor, not a nurse, had the authority to transfer a patient. There was no evidence that any physician ever ordered a transfe r of Kubacki to another facility, or that St. John’s purported failure to implement sufficient tr ansfer policies delayed or precluded
a transfer in this case. This th eory of liability was therefor e unsupported at trial.

C. COMPLETION OF THE AFTERNOON EKG

Next, plaintiff asserts that S t. John’s nurses failed to ensur e the completion of an EKG
Dr. Crawford ordered late i n the afternoon on September 8, and therefore breached the applicable-5- standard of care. Assuming that the failure to ensure completi on of this EKG constituted a breach, plaintiff presented nothing more than speculation to co nclude that any breach was causally connected to Kubacki’s injuries or death. Dr. Crawfor d testified that she ordered an EKG at around 3:45 p.m. on September 8, and that a nurse later called her and said that Kubacki could not undergo the EKG because she was vomiting. Dr. Crawfo rd testified that she “hoped [the EKG] was going to be done, but at the same time, [Kubacki] now said she was wanting to leave.” Dr. Crawford did not instruct the nurse to go back and see if she could perform the EKG at a later time. The hospital notes showed that Kubacki refuse d the EKG at 4:50 p.m. because she was vomiting and burping. According to medical notes, Kuba cki asked the medical personnel administering the EKG to come back later.

Anicia Lucas, a St. John nurse who came on duty at 7:00 p.m. o n September 8, testified that she did not try to administer the EKG that was ordered by Dr. Crawford earlier in the day because Kubacki was not having chest pain and was still nauseat ed and vomiting. Lucas testified that from the time she came on duty at 7:00 p.m., Kubacki had c ontinued complaints of nausea, gagging, or back pain, or she was crying. According to hospita l notes, after receiving antinausea medication, Kubacki was sleeping at 9:00 p.m., but at ap proximately 10:30 p.m., Kubacki was awake and sitting in a chair gagging again and trying to th row up.

At trial, plaintiff’s expert nurse witness, VanRiper, testifie d that the EKG ordered by Dr. Crawford should have been administered. According to VanRiper, it was reasonable for the EKG technician to give Kubacki “a little bit of space to finish vomiting,” but the nurses should
have made sure that the technician came back to finish the EKG. VanRiper claimed that the failure to ensure the completion of the EKG deprived Dr. Crawfo rd of information needed to
make further decisions about Kubacki’s care.

However, even if the St. John’s nurses breached the applicable standard of care, plaintiff presented no evidence demonstrating that the failure to ensure the completion of the EKG proximately caused Kubacki’s inju ries or death. There are no f acts establishing that Kubacki would have agreed to undergo th e EKG at any point during the ev ening of September 8. Kubacki remained nauseous and continued trying to vomit through out the night. It is therefore speculative to assert that Kuback i would have agreed to undergo the EKG and that St. John’s
staff would have been able to com plete the procedure. Further, even if the EKG could have been performed, there are no specific facts establishing that the re sults of the EKG would have led Dr. Crawford to order the transfer of Kubacki to another hospital f or an emergency cardiac catheterization, that Dr. Crawford would have then decided to p erform an emergency surgery to address Kubacki’s partially occl uded artery, and that all of th is would have occurred before Kubacki’s fatal cardiac event at 2:35 a.m. on September 9. Pla intiff has therefore failed to establish legally sufficient cau sation with respe ct to this the ory of liability.

D. FAILURE TO INFORM PHYSICI ANS OF CONTINUING SYMPTOMS

Finally, plaintiff contends tha t St. John’s nurses breached th e standard of care by failing to inform Dr. Crawford of Kubacki’s continuing symptoms during the evening hours of September 8. Lucas testified that during the evening of Septem ber 8, Kubacki complained of nausea, back pain, and an inability to sleep. Lucas did not ca ll Dr. Tran or Dr. Crawford, but
instead notified the house officer. Lucas testified that she d id not call Dr. Tran about Kubacki’s-6- 8:00 p.m. report of back pain because he had just been there, a nd Kubacki’s back pain was not a new symptom. After receiving a nti-nausea medication, Kubacki w as sleeping at 9:00 p.m. At approximately 10:30 p.m., Kubacki was awake and sitting in a ch air gagging and trying to throw up. Lucas testified that she did not call Dr. Tran, Dr. Crawfo rd, or the house officer at that point. According to Lucas, at midnight, Kubacki fell asleep again.

Dr. Crawford testified that, according to Kubacki’s chart, she had nausea, back pain, and difficulty sleeping during the late evening hours of September 8. No one called Dr. Crawford to notify her of these ongoing symptoms, but Dr. Crawford stated t hat Kubacki’s discomfort had been going on all day. Dr. Craw ford agreed that the hospital s taff had an obligation to call her or Dr. Tran about signs and symptoms that could be evidence of isc hemia. In response to a hypothetical question about whether she would have taken steps to do something to save a patient who had symptoms of a partially or fully occluded cardi ac vessel, Dr. Crawford answered, “Hypothetically, yes.”

Plaintiff presented no expert t estimony to establish that St. John’s nurses breached the standard of care in failing to call Dr. Crawford or Dr. Tran ab out Kubacki’s ongoing symptoms. 1 VanRiper, the only nurse who testified as an expert, did not te stify that these alleged omissions on the part of St. John’s nurses breached an app licable standar d of care. Moreover, even if a breach did occur, there was no testimony establishing a causal connection between the breach Kubacki’s injuries or death. Again, Dr. Crawford stated that a lthough no one notified her about these ongoing conditions in the late evening hours, Kubacki’s d iscomfort had been going on all day. Dr. Crawford was aware that Kubacki had been vomiting whe n she initially refused the
EKG. Dr. Crawford was also aware of Kubacki’s discomfort and b elching because Kubacki complained about these conditions and made unusual belching sou nds with almost every breath when Dr. Crawford saw her the afternoon of September 8. It is speculative to assert that, if St.
John’s staff had notified Dr. Cr awford of Kubacki’s continuing symptoms during the late evening hours of September 8, Dr. Crawford would have decided t o transfer Kubacki to another hospital, performed a cardiac catheterization, and then perform ed an emergency surgery to place a stent, and that all of this would have occurred in time to pr event Kubacki’s fatal cardiac event at 2:35 a.m. on September 9. Plaintiff has therefore failed to establish either a breach or causation with respect to th is theory of liability.

IV. CONCLUSION

For the reasons stated above, we conclude that the trial court erred in denying St. John’s
motion for JNOV. Plaintiff failed to present sufficient eviden ce from which reasonable jurors could find that any breach of the applicable standards of care by St. John or its employees proximately caused Kubacki’s injuries or death. In light of ou r resolution of this issue, we need
not address the other issues r aised by the parties on appeal.

1 Although Dr. Crawford testified that the nurses were obligated to call her or Dr. Tran about Kubacki’s symptoms that could be evidence of ischemia, Dr. Craw ford was not qualified at trial as an expert on the standard of care applicable to nurses.-7- The lower court’s order denying defendant’s motion for JNOV is reversed, the judgment in favor of plaintiff is vacated, and the case is remanded for entry of a judgment of no cause of action in favor of St. John because legally insufficient eviden ce supported the jury’s verdict at
trial. We do not ret ain jurisdiction.

/s/ Cynthia Diane Stephens /s/ Stephen L. Borrello
/s/ Michael F. Gadola