                            STATE OF MICHIGAN

                            COURT OF APPEALS


ESTATE OF BETTY SIMMS-NORMAN, by its                                 UNPUBLISHED
Personal Representative, MARCIA BUTTS,                               June 19, 2018

               Plaintiff-Appellee,

v                                                                    No. 334892
                                                                     Macomb Circuit Court
ST. JOHN MACOMB-OAKLAND HOSPITAL,                                    LC No. 2015-00135-NH
ST. JOHN PROVIDENCE HEALTH SYSTEM,
SETH B. PARKER, M.D., and GREAT LAKES
MEDICINE, PLC,

               Defendant-Appellants.


Before: JANSEN, P.J., and SERVITTO and SHAPIRO, JJ.

JANSEN, P.J. (dissenting)

       Because I believe defendants were entitled to summary disposition, I dissent.

        In a medical malpractice case, it is plaintiff’s burden to prove that defendant’s breach of
the standard of care was the proximate cause of his or her injuries. Lockridge v Oakwood Hosp,
285 Mich App 678, 684 (2009), citing Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296
(2004). “Proximate cause is a term of art that encompasses both cause in fact and legal cause.”
Craig, 471 Mich at 86. Plaintiff must prove that “ ‘but for’ the defendant’s actions, the
plaintiff’s injury would not have occurred. On the other hand, legal cause or ‘proximate cause’
normally involves examining the foreseeability of consequences, and whether a defendant should
be held legally responsible for such consequences.” Skinner v Square D Co., 445 Mich 153, 163;
516 NW2d 475 (1994) (citations omitted). A plaintiff need not prove that the defendant’s
actions were the sole cause of his or her injuries, however plaintiff must “introduce evidence
permitting the jury to conclude that the act or omission was a cause.” Craig, 471 Mich at 87.

        Michigan law is clear that causation cannot be established by “mere speculation.” Genna
v Jackson, 286 Mich App 413, 417-418; 781 NW2d 124 (2009). “A mere possibility of . . .
causation is not sufficient; and when the matter remains one of pure speculation and conjecture,
or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a
verdict in favor of the defendant.” Id. Additionally, an act that occurs after the actor’s negligent
act was committed, “ ‘which actively operates in producing harm to another[,]’ ” may break the
causal chain. McMillian v Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985) (citations omitted).

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Such an act will constitute a superseding cause that relieves the original actor from liability. Id.
Generally, proximate cause is a question for the jury; however, “if reasonable minds could not
differ regarding the proximate cause of plaintiff’s injury, the court should decide the issue as a
matter of law.” Nichols v Dobler, 253 Mich App 530, 532; 655 NW2d 787 (2002).

        As an initial matter, it appears as though my colleagues ignore the testimony of plaintiff’s
treating nephrologist Dr. Navkiranjot Brar, who is also a board certified nephrologist. Dr. Brar
was clear in her opinion that plaintiff’s eventual dialysis treatment was the result of acute tubular
necrosis (ATN), and not acute interstitial nephritis (AIN) caused by plaintiff’s use of a proton
pump inhibitor (PPI) medication. Specifically, Dr. Brar testified that if the PPI medications
administered to plaintiff were causing her acute kidney failure, when plaintiff was taken off of
the PPI drugs, her kidney function would have improved, and she would not have “ended up with
renal failure.” However, that did not happen in this case. During plaintiff’s second
hospitalization, plaintiff showed no signs of AIN. She did not have a fever, she did not exhibit a
rash, and there was no presence of eosinophil in her urine. Dr. Brar testified:

          Yes, she has renal failure. You’re trying to find out why she’s in renal failure.
          Could it be [the PPI medication]? I stopped [the PPI medication]. I expect the
          kidney numbers to be better. Didn’t happen. Okay. I give IV fluids. The patient
          was dehydrated, but it’s still not happening. So what’s going on? So then we
          check the urine sediment, and this time she had just tons of granular cast sitting
          there which tells, okay, yes, this is ATN.

Dr. Brar further explained that when PPI drugs cause

          damage to the kidney, it’s a different form, and I wasn’t see[ing] any of those
          results on the lab tests. When the other things your heart failure, prerenal causing
          and leading to ATN, there is a different component of the kidney being affected.
          And all the data was suggestive it is more ATN. We didn’t have any data to
          support that it’s AIN. [Emphasis added.]

Plaintiff has failed to present evidence suggesting that PPI medications can, or did in this case,
cause ATN. Accordingly, in my view, plaintiff has failed to establish cause-in-fact, and on that
basis alone defendants were entitled to summary disposition in their favor.

        Further, I disagree with my colleagues that plaintiff has established legal causation. The
record here is clear that before plaintiff was admitted to the emergency room, Dr. Yalala,
plaintiff’s nursing home physician, had been treating plaintiff with Prilosec, a PPI medication,
and when plaintiff returned to the nursing home, Dr. Yalala continued to administer Prilosec.1
Accordingly, Protonix, the PPI medication listed, but not proscribed, by Dr. Seth Parker in the
discharge instructions was never administered to plaintiff. This is significant because despite
being members of the same class of drugs, Prilosec and Protonix are not the same medication.
Prilosec and Protonix have different chemical compositions, and one is not the generic for the


1
    Dr. Yalala’s first name does not appear in the record.


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other. Indeed, plaintiff’s expert witness, Dr. David Winston, testified that most of the medical
literature that attributes PPI medication to AIN focuses on a patient’s use of Prilosec, not
Protonix. Dr. Winston specifically testified that “[b]ecause of the prevalence of omeprazole or
Prilosec use being far greater than Protonix, the greater number of cases have been omeprazole;
however the authors would speculate that its due to the ratio of overall prescribing and use.”
However, such speculation is insufficient to establish causation. Genna, 286 Mich App at 417-
418. Additionally, there is no testimony that Dr. Yalala, or any other medical professional at the
nursing home, ever relied on the discharge instructions written by Dr. Parker. Although Dr.
Winston testified that it was “usual and customary” for a nursing home doctor to rely on the
discharge instructions, it is speculative to assume that Dr. Yalala did so here. Again, plaintiff
cannot prove proximate causation based on speculation or conjecture. Id.

        Assuming arguendo that plaintiff had established proximate causation, my colleagues
also ignore the fact that Dr. Yalala used her independent medical judgment and continued to treat
plaintiff with a PPI medication upon plaintiff’s return to the nursing home, despite the discharge
instructions being clear that plaintiff was suffering from kidney failure. Specifically, the
discharge instructions state in large, bold, and capital letters that plaintiff was suffering from
renal failure. Dr. Yalala’s judgment is particularly questionable in light of Dr. Winston’s expert
opinion that the medical community widely accepted that PPI drugs can be linked to AIN, and
possible subsequent kidney failure. I would conclude that Dr. Yalala’s equally negligent medical
treatment was a superseding cause of plaintiff’s injuries, which breaks the causal chain and
relieves Dr. Parker of all liability. Regardless, in my view, plaintiff has presented only
speculative evidence regarding legal causation. Reasonable minds could not differ that Dr.
Parker was not the proximate cause of plaintiff’s injuries, and for that reason, defendants were
entitled to summary disposition as a matter of law.



                                                            /s/ Kathleen Jansen




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