If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

LEE STARNES,

Plaintiff

- Appellant, UNPUBLISHED April 11, 2019

v No. 341195

Schoolcraft Circuit Court SCHOOLCRAFT MEMORIAL HOSPITAL, JOHN GALEY, M.D., and BARBARA FIK, LC No. 2015

- 004947

- NH

Defendants

- Appellees.

Before: S WARTZLE

, P .J., and C AVANAGH and C AMERON , JJ.

P ER C URIAM

.

Plaintiff, Lee Starnes, appeals an opinion and order granting defendants, Schoolcraft Memorial Hospital, John Galey, M.D., and Barbara Fik, summary disposition under MCR 2.116(C)(10). We affirm.

I. FACTS

In January 2012, Starnes had an MRI performed on his right knee. On October 29, 2013,

Starnes met with Dr. Galey, a board

- certified orthopedic surgeon employed with Schoolcraft

Memoria l Hospital, for a pre

- operation examination. Dr. Galey diagnosed Starnes with arthritis

and a medial meniscus tear in the right knee. Starnes also informed Dr. Galey that the pain in his left knee was worse than in his right knee. U pon physical examination, Dr. Galey believed that

Starnes had a torn meniscus in his left knee as well , and he decided to perform an art hroscopy on the left knee instead of the right knee

.

On the same day as Dr. Galey’s examination

, Starnes signed a consent form for a “knee arthroscopy with chondroplasty meniscectomy and/or lateral release as ind icated by arthroscopic findings

. ” The co nsent form include d an “(R)” and “(L)” for designating on which knee to perform the operation

. D efendant Fik, a nurse at the hospital, circled t he “(R)” on Starnes’s form, but then she crossed it out and wrote her initials next to the marking. She then c ircled the “(L)

. ” She testified at her deposition that these changes were made before she gave the form to

Starnes to sign , and the only reason it had been changed was becau se she filled out the form before Dr. Galey examined Starnes and decided to perfor m the arthroscopy on the left knee- 2

- rather than the right knee . On October 29, 2013, Nurse Fik also completed, and Dr. Galey signed, three pre

- surgery forms, all of which indicated that a “left knee arthroscopy” was to be performed.

On November 5, 2013, the day before the scheduled arthroscopic surgery, Nurse Roxanne Paquette conducted an ambulatory care initial interview over the phone with Starnes

. In her affidavit, Nurse Paquette attested that Starnes consented to a left knee arthroscopy. The

electronic medical record created based on their conversation indicates that the procedure to be performed was a “left knee arthroscopy” and the reason for the procedure w as a “left medial

meniscus tear

. ”

Denis e McMullen, a pre

- operation and surgical nurse employed at Schoolcraft Memorial Hospital, attested in her affidavit that she confirmed with Starnes that the October 29, 2013 consent form, which identified that the procedure would be a left knee arthroscopy , was correct. Nurse McMullen stated that before the procedure, Starnes verified the proper surgical site on his left knee, and he also gave verbal verification that the procedure was to be performed on his left

knee. She also stated that other “nurses i ndependently verified with [ Starnes ] that the proper site

of the arthrosco py was his left knee

. ” Nurse McMullen stated that “[ Starnes ’s] left knee was also propped up, immobilized, and shaved” before the procedure. “Dr. Galey also marked the left knee ap proximately 20 minutes before [ Starnes ] was taken to the operating room

. ” Thomas DeBerardino, M.D. , a medical expert for Starnes , stated that , due to the aforementioned procedures, patients normally know immediately if the wrong knee is about to be opera ted on

. He stated that there would have be en a viol ation of the standard of care if the safe guards like the

ones above had not been completed before surgery

.

On November 6, 2013, Dr. Galey performed an arthro scopy on Starnes ’s left knee . Dr.

DeBerardi no indicated that , while there is debate amongst physicians about whether an MRI is necessary before probing a knee

, Dr. Galey’s choice to probe Starnes ’s knee without first performing an MRI was not a breach of the standard of care.

Nurse McMullen attested that “after the left knee arthroscopy, [ Starnes ] verbalized a small ache at the surgical site [on the left knee], and an understanding of his discharge instructions. Neither he nor his wife made any complaint before or at the time of discharge

. ” The day after the surgery, a nurse made a follow

- up phone call to Starnes , but he did not mention

tha t he thought that Dr. Galey had operated on the wrong knee

. Subsequently, Starnes visited Dr. Marc Anderson, who confirmed the previous diagnoses Dr. Gal ey had made about Starnes ’s

left knee

— that there was an issue with the meniscus and that the knee was arthritic. Starnes complained to Dr. Anderson that he had no pain in his left knee before the arthroscopy. Dr. Anderson performed an other arthroscopy of Starnes ’s left knee approximate ly six months after Dr. Galey ’s operation

.

II. ANALYSIS

Starnes argues that the trial court erred in granting defendants’ motion for summary disposition. We disagree.- 3

- This Court reviews de novo a trial court’s decisio n under MCR 2.116(C)(10) in determining whether the moving party is entitled to judgment as a matter of law. Cuddington v

United Health Servs

, Inc , 298 Mich App 264, 270; 826 NW2d 519 (2012). A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Joseph v Auto Club Ins Ass’n , 491 Mich 200, 206; 815 NW2d 412 (2012). “ The moving party must specifically identify the matters that have no disputed factual issues, and it has the initial burden of supporting its position by affidavits, depositions, admissions, or other documentary

evidence. ” Bronson Methodist Hosp v Auto

- Owners Ins Co , 295 Mich App 431, 440; 814 NW2d 670 (2012). “In reviewing a motion brought under MCR 2.116(C)(10), we review the evidence

submi tted by the parties in a light most favorable to the nonmoving party to determine whether there is a genuine issue regarding any material fact.” Cuddington , 298 Mich App at 270. “A genuine issue of material fact exists when the record leaves open an issu e on which reasonable

minds could differ.” Id . at 270

- 271 (quotation marks and citation omitted)

.

T he p laintiff then b ears the burden of demonstrating that a genuine issue of material fact existed with respect to at least one of the following: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the all eged breach and injury. Wiley v Henry Ford Cottage Hosp , 257 Mich App 488, 492; 668 NW2d 402 (2003). In this case, there is no dispute that the standard of care require s Dr. Galey perform

s urgery on the correct body part and obtain consent to do so. Ins tead, t he issue here is limited to

whether defendants breach ed th is standard of care.

Defendants produced considerable evidence demonstrating that Starnes asked for a probe of his left knee because that knee was more bothersome than his right knee

. Fur ther, Starnes consented to a probe of the left knee at a pre

- procedure consultation with Nurse Fik, then on the phone with Nurse Paquette the day before the procedure occurred, and then numerous times while in the hospital before Dr. G aley performed the ar throscopy . Dr. DeBerardino, when deposed, and in direct contradiction to his affidavit of merit, declined to opine that defendants breached their standard of care in operating on the left knee, confirmed that numerous opportunities to consent or not conse nt were provided to Starnes regarding his left knee, stated that he had no evidence to suggest that defendants altered Starnes ’s medical records, and stated that he did not have evidence to demonstrate that there was a conspiracy to conceal Dr. Galey’s

sup posed mistake. Given de fendant’s exhaustive documentation and Starnes ’s failure to counter

it , the record does not leave open an issue on which reasonable minds could differ. Cuddington

, 298 Mich App at 270

- 271.

Instead of pointing to genuine factual disputes about whether healthcare professionals

obtained his consent to probe his left knee, Starnes provides this Court with speculative allegations that Dr. Galey and Nurse Fik, or someone within Schoolcraft Memorial Hospital, changed his medical record s to cover up the fact that they performed a procedure on the wrong knee. To support his allegation of a cover

- up, Starnes states that Nurse Fik’s handwritten correction to a surgical consent form evidences the existence of a conspiracy to conceal the healthcare professionals’ failure to obtain appropriate consent from him. However, this assertion, without corroborating evidence, is speculative and does not establish a question of fact

as to whether defendants failed to obtain consent to operate on Sta rnes’s left knee

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- Starnes also relies upon Dr. DeBerardino’s affidavit of merit, in which Dr. DeBerardino

states that Starnes ’s medical records suggest that he did not consent to an arthroscopy of his left knee, that Dr. Galey performed a probe on the w rong knee, and that Starnes ’s medical records were altered. First, Starnes misrepresents what is contained in the affidavit of merit ; Dr.

DeBerardino only stated that it appeared that the medical records were changed, but he offered

no theory as to whethe r this change was to conceal a mistake after the probe was allegedly performed on the wrong knee . In his affidavit of merit, Dr. DeBerardino stated:

It appears to me that the medical records of Lee Starnes have been inappropriately altered. In my experie nce it is unheard of and extremely inappropriate to cross out and replace the surgery site on a surgical consent form without having the patient specifically sign/initial the change. I also am aware of no reason why a

handwritten amendment would be made t o an electronic medical record other than

to be able to make the amendment without an electronic time

- stamped record of when the change was made.

Even if Dr. DeBerardino’s assertion is accurate , the hand

- written alteration of a medical record

does not de monstrate that defendants failed to obtain Starnes’s consent. Dr. DeBerardino does not offer any evidence independent of the form’s alteration, and any theory from Dr. DeBerardino as to why the change to the form was made is merely speculative. Starnes ’s speculation about defendants’ motivation to chang e his medical record s and Dr. DeBerardino’s statement in his affidavit of merit do not create a genuine issue of material fact with regard to

breach of the standard of care. Smith v Globe Life Ins Co , 223 Mich App 264, 273; 565 NW2d 877 (1997), rev’d on other grounds 460 Mich 446 (1999) (holding that speculation and conjecture are insufficient to create a genuine issue of material fact).

Moreover, Starnes may not rely on Dr. DeBerardino’s affidavit of merit to establish the existence of a genuine issue of material fact as to the breach of the standard of care. I n his deposition testimony , Dr. DeBerardino explicitly stated that he had no evidence to demonstrate that the medical records were improper ly altered to conceal a mistake. Moreover, after being asked to review medical records, Dr. DeBerardino affirmed that the medical records indicated

that defendants asked for Starnes ’s consent before performing the procedure on his left knee, and

that Star nes gave his consent for the procedure on his left knee. Although Dr. DeBerardino may have made statements at his deposition which were contrary to his affidavit of merit, in Dykes v William Beaumont Hosp , 246 Mich App 471, 479; 633 NW2d 440 (2001) , this Court held that parties may not contrive factual issues by relying on an affidavit of merit when a witness gives damaging testimony in a deposition

. Dykes , 246 Mich App at 4 79

- 482. A party may not contrive factual issues “by relying on an affidavit when unfavorable deposition testimony shows

that the assertion in the affidavit is unfounded.” Id . at 481. As the trial court determined, it is Dr. DeBerardino’s sworn deposition testimony that controls , not his affidavit

.

Finally, Starnes argues that the trial court erred in granting defendants’ motion for summary disposition because

, at the very least, it is for the jury to d etermin e the accuracy of the

medical records. Thus, he claims, the trial court erred because the evidence it used to make its

decision

, specifically Dr. DeBerardino’s deposition testimony, meant Dr. DeBerardino accept ed the accuracy and validity of the medical records. However, Dr. DeBerardino was directly asked whether the records were improperly altered, and he stated that he had no evidence to support- 5

- that assertion. In the course of this case, Starnes offered no e vidence that the medical records

were altered after the procedure . With respect to the most suspicious record, which had crossed out the designation for the right knee and circled the designation for the left knee, Nurse Fik

testified that she altered the consent form before the procedure and before Starnes signed it to

reflect his desire for a probe of his left knee. Starnes ’s suspicions of post

- surgery alteration s to the record appear to be based purely on speculation and conjecture. The trial court did not err when it concluded that there were no genuine issues of material fact and summary disposition was proper under MCR 2.116(C)(10).

Affirmed.

/s/ Brock A. S wartzle /s/ Mark J. Cavanagh

/s/ Thomas C. Cameron