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UNPUBLISHED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: SWARTZLE, P.J., and CAVANAGH and CAMERON, JJ.

PER CURIAM.

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 

Memorial 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. Upon physical examination, Dr. Galey believed that 

Starnes had a torn meniscus in his left knee as well, and he decided to perform an arthroscopy 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 indicated by arthroscopic 

findings.” The consent form included an “(R)” and “(L)” for designating on which knee to 

perform the operation. Defendant Fik, a nurse at the hospital, circled the “(R)” on Starnes’s 

form, but then she crossed it out and wrote her initials next to the marking. She then circled 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 because she filled out the form 

before Dr. Galey examined Starnes and decided to perform the arthroscopy on the left knee 
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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 was a “left medial 

meniscus tear.”

Denise 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 independently verified with [Starnes] that the proper site 

of the arthroscopy 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 approximately 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 operated on. 

He stated that there would have been a violation of the standard of care if the safeguards like the 

ones above had not been completed before surgery. 

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

DeBerardino 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 

that he thought that Dr. Galey had operated on the wrong knee. Subsequently, Starnes visited 

Dr. Marc Anderson, who confirmed the previous diagnoses Dr. Galey 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 another arthroscopy of Starnes’s left knee approximately 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. 
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This Court reviews de novo a trial court’s decision 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 

submitted 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 issue on which reasonable 

minds could differ.” Id. at 270-271 (quotation marks and citation omitted). 

The plaintiff then bears 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 alleged 

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 requires Dr. Galey perform 

surgery on the correct body part and obtain consent to do so. Instead, the issue here is limited to 

whether defendants breached this 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. Further, 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. Galey performed the arthroscopy. 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 consent 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 

supposed mistake. Given defendant’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 records 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 Starnes’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 wrong 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 whether 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 experience 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 to 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 demonstrate 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 change his medical records 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. In his 

deposition testimony, Dr. DeBerardino explicitly stated that he had no evidence to demonstrate 

that the medical records were improperly 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 Starnes 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 479-482. 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 determine 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 accepted

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 
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that assertion. In the course of this case, Starnes offered no evidence 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 alterations 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. Swartzle 

/s/ Mark J. Cavanagh 

/s/ Thomas C. Cameron