                               STATE OF MICHIGAN

                                COURT OF APPEALS



ESTATE OF PATRICIA A. WATLAND by ERIC                                 UNPUBLISHED
WATLAND, Personal Representative,                                     December 26, 2017

               Plaintiff-Appellant/Cross-Appellee,

v                                                                     No. 331563
                                                                      Wayne Circuit Court
ALI J. MANNS, R.N., DEARBORN SURGERY                                  LC No. 13-005798-NH
CENTER, L.L.C., doing business as DEARBORN
SURGERY CENTER, KELLY MORSE, R.N.,
MARC J. MILIA, M.D., MICHIGAN
ORTHOPEDIC SPECIALISTS, and MICHIGAN
BONE AND JOINT SOUTHSHORE,

               Defendants-Appellees/Cross-
               Appellants.


Before: MURRAY, P.J., and K. F. KELLY and FORT HOOD, JJ.

PER CURIAM.

        In this medical malpractice action, plaintiff appeals by right an order reflecting the jury’s verdict
of “no cause of action” as to any of the defendants. Finding no errors warranting reversal, we affirm. 1

                                            I. BASIC FACTS

        The decedent, Patricia Watland (Patricia), died two days following arthroscopic knee surgery to
repair a torn meniscus. Her estate (“plaintiff”) brought a medical malpractice action against a number of
defendants, including the surgeon who performed the surgery, Marc J. Milia, M.D. (Milia), as well as
the Dearborn Surgery Center (“surgery center” or “DSC”) where the surgery took place, and Ali J.
Manns, R.N. (Manns), a nurse who spoke with Patricia the day after her surgery.2



1
 Given the fact that we are affirming the judgment, we decline to address defendants’ cross appeals,
which are only relevant if the matter had been remanded.
2
  There are a number of defendants named in the suit, but these three were the focus at trial and are the
focus on appeal.


                                                     -1-
        Patricia died as a result of a pulmonary embolism (PE) most likely brought on by a deep vein
thrombosis (DVT). Plaintiff alleged that Milia was negligent for failing to recognize that Patricia had a
number of risk factors making her more susceptible to DVT and that Milia could have taken a number of
prophylactic steps – both before and after the surgery – to prevent the DVT. Plaintiff alleged that
Manns was negligent in failing to direct Patricia to the emergency room after learning that Patricia had a
swollen foot and a cold calf. Manns had called Patricia the day after her surgery to see how she was
doing and plaintiff alleged that Manns failed to recognize the seriousness of the situation. In addition to
the hotly debated standard of care testimony, a major issue at trial was whether a post-operative call
sheet was a “medical record.” There was no dispute that, after learning that Patricia had died, Manns
went back and added information to the call sheet. Specifically, Manns added that she told Patricia that
if her symptoms got worse or did not improve, she should call her doctor or take herself to the
emergency room. Following the evidence, the jury returned a verdict of no cause of action against any
of the defendants.

                                  II. ROBERT HINES’S TESTIMONY

        Plaintiff argues that the trial court erred when it struck portions of testimony of its causation
expert, Dr. Robert Hines. Conceding that Hines was a causation expert, plaintiff nevertheless alleges
that defendants “opened the door” to standard of care testimony and that the trial court erred when it
precluded plaintiff from asking follow-up questions on re-direct.

        “[T]he qualification of a witness as an expert and the admissibility of the testimony of the
witness are in the trial court’s discretion and we will not reverse on appeal absent an abuse of that
discretion. An abuse of discretion exists if the decision results in an outcome outside the range of
principled outcomes.” Surman v Surman, 277 Mich App 287, 304–305; 745 NW2d 802 (2007).

       In order for a medical malpractice plaintiff to prevail, she must prove a number of elements:

       In order to establish a cause of action for medical malpractice, a plaintiff must establish
       four elements: (1) the appropriate standard of care governing the defendant’s conduct at
       the time of the purported negligence, (2) that the defendant breached that standard of
       care, (3) that the plaintiff was injured, and (4) that the plaintiff’s injuries were the
       proximate result of the defendant’s breach of the applicable standard of care. [Craig v
       Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004).]

Proximate cause involves both the “cause in fact” and the “legal cause.” Skinner v Square D Co, 445
Mich 153, 162-63; 516 NW2d 475 (1994). The first requires a showing that “but for” defendants’
action, plaintiff would not have been injured whereas the latter focuses on foreseeability and whether a
defendant should be held legally responsible for such consequences. Id. “A plaintiff must adequately
establish cause in fact in order for legal cause or ‘proximate cause’ to become a relevant issue.” Id.

        Hines testified only as to the “cause in fact” of Patricia’s death. He explained how a PE is
formed and how it can be fatal. All of the parties agree that Hines was a causation expert and was not
offered to testify regarding standard of care. In fact, under MCL 600.2169(1)(a), he was not qualified to
offer standard of care testimony. “[I]f a defendant physician is a specialist, the plaintiff’s expert witness
must have specialized in the same specialty as the defendant physician at the time of the alleged
malpractice.” Woodard v Custer, 476 Mich 545, 560–61; 719 NW2d 842 (2006).

                                                    -2-
       Plaintiff argues that although Hines was not qualified to offer an opinion as to the standard of
care, defense counsel “opened the door” to such questions during cross-examination when defense
counsel questioned Hines about whether a PE can occur even in the absence of negligence. Because
Hines’s deposition was played for the jury in lieu of his testimony at trial, the parties and the trial court
were able to discuss and exclude the evidence prior to its presentation. Defense counsel had questioned
Hines about whether it was possible to have a PE in the absence of negligence:

              Q. And you have seen those pulmonary emboli come from a good many things;
       you’ve seen them come about as a result of surgery?

               A. Yes.

               Q. You have seen them come about as a result of surgeries, where they were done
       by the finest [surgeon] in the Akron area where you practiced or in Baltimore where you
       trained, and the patient still got an embolism?

               A. That can happen, certainly.

              Q. You have seen it develop in patients who appear to be in very good health, but
       they grew an embolism?

               A. Yes, that can happen.

               Q. You have seen patients who were, particularly on this . . . I-75 corridor,
       patients who are on those trips to or from Florida, after sitting in those cars for periods of
       time?

               A. Yes. It’s I-71.

               Q. It’s I-71 but you know what I’m talking about.

               A. Yes.

                Q. And people regrettably, unfortunately people get sick from those, from just
       sitting in the car?

               A. It can happen.

               Q. It does happen. You have seen it happen to people who just got off the
       airplane?

               A. Yes.

               Q. And wind up in your hospital and your ICU?

               A. Yes.

               Q. From sitting for four or five hours?


                                                    -3-
              A. Yes.

              Q. Is, what does the term “phenomena” mean when used in medicine?

              A. Something that happened.

              Q. It’s something that happens?

              A. Something that happens.

               Q. And again, with medicine, because of the misfortune of the facts that you, as
       well as you are, have controlled everything, I think you may not be aware of this, because
       you never testified in Michigan, but the jury is going to get an instruction from the Judge
       in this case that there are inherent risks in medicine that are beyond the physician’s
       control. Do you agree with that? Do you agree with that? That there are inherent risks in
       medicine?

              A. Yes, I would agree with that.

                                                    * * *

              Q. Okay. And sometimes, again, seeing what you’ve seen, particularly seeing
       what you have seen as a critical care physician and as an internist, situations develop but
       do not reflect the fact that care was given based on doctor’s training and the doctor’s
       experience and you can still get a bad outcome; you see that weekly, don’t you?

              A. You mean if the care was fine?

              Q. Yes.

              A. But you have a bad outcome?

              Q. Yes.

              A. Yes, that can happen.

                Q. Okay. It’s like ten people who still get diabetes or who’s never smoked who
       still get lung cancer?

              A. Yes.

      The trial court sustained defense counsel’s objection to the following exchange during re-direct
examination:

                                     REDIRECT EXAMINATION

       BY MR. HAFELI:



                                                   -4-
              Q. I have a few follow-up questions. Doctor, do you have an opinion as to
       whether this case, this Patricia Watland case was the case of a bad outcome, where the
       physician and nurse performed proper care?

               MR. COPELAND: Objection. That is standard of practice, and he is not qualified
       to offer an expression as to whether or not the care given was standard of practice.

               MR. GALBRAITH: Join.

               MR. HAFELI: You opened the door and just asked that question.

               MR. COPELAND: I didn’t open the door.

               MR. HAFELI: Yes, you did. You just asked him. So I will take an answer.

               THE WITNESS: Yes, I have an opinion.

       BY MR. HAFELI:

               Q. What is your opinion?

              A. I believe, in my opinion, that this is not a matter of proper care being given
       and a bad outcome. I believe that the outcome was preventable with better care.

       Plaintiff complains that the jury was deprived of Hines’s opinion that this was not a case in
which a bad result came about in the absence of negligence. It cites to a number of cases in which
otherwise inadmissible evidence may be admitted and pursued where the opposing party “opens the
door” or makes it an issue in the case. However, defense counsel did not open the door to otherwise
inadmissible standard of care testimony. Instead, defense counsel merely asked Hines whether it was
possible to have a bad result in the absence of negligence, which touches on the standard jury instruction
for “medical uncertainty”:

       There are risks inherent in medical treatment that are not within a doctor’s control. A
       doctor is not liable merely because of an adverse result. However, a doctor is liable if the
       doctor is negligent and that negligence is a proximate cause of an adverse result. [M Civ
       JI 30.04 Medical Malpractice: Cautionary Instruction on Medical Uncertainties.]

Defense counsel’s questioning did not touch upon what a reasonable orthopedic surgeon would have
done, but whether a bad medical outcome can result in the absence of negligence. As such, the door was
not opened for plaintiff’s attorney to question Hines about whether Milia had, in fact, breached the
standard of care.

       Moreover, contrary to plaintiff’s argument, the jury was not deprived of Hines’s opinion
regarding the effect of Milia’s actions on Patricia’s death. Prior to the above exchanges, plaintiff’s
counsel had questioned Hines:

              Q. In the record, it’s revealed that following the surgery, Dr. Milia didn’t give
       any type of anti-coagulant shot to Mrs. Watland and he didn’t use sequential compression

                                                   -5-
          pumps during the surgery and he didn’t use compression stockings during the surgery. Do
          you have an opinion whether Dr. Milia’s actions with regard to those three things I just
          mentioned, whether his failure to take those three steps was a proximate cause of Mrs.
          Watland’s death within a reasonable degree of medical certainty?

                 A. Yes I have an opinion.

                 Q. Okay.

                  A. That opinion is that yes, that was a causation factor. Had those measures been
          taken, there is a definite possibility, more likely than not, that a blood clot would not have
          formed and that she subsequently would not have suffered a pulmonary emboli.

                 Q. All right. Is that opinion within a reasonable degree of medical certainty?

                 A. Yes.

Therefore, contrary to plaintiff’s contention, the jury heard that the outcome in this case may have been
preventable.3

       The trial court did not abuse its discretion when it struck Hines’s standard of care testimony
because he was not qualified to offer an opinion regarding Milia’s treatment. Defense counsel did not
open the door to such testimony by simply asking Hines whether a pulmonary embolism may result in
the absence of negligence. In any event, the jury heard Hines’s testimony that Patricia’s pulmonary
embolism may have been avoidable.

                                       III. INSTRUCTIONAL ERROR

        Claims of instructional error are generally reviewed de novo. Cox v Bd of Hosp Managers for
City of Flint, 467 Mich 1, 8; 651 NW2d 356 (2002). However, a trial court’s determination whether a
standard instruction was applicable and accurate is reviewed for an abuse of discretion. Moore v Detroit
Entertainment, LLC, 279 Mich App 195, 223; 755 NW2d 686 (2008). Additionally, “when the standard
jury instructions do not adequately cover an area and a party requests a supplemental instruction, the
trial court is obligated to give the instruction if it properly informs the jury of the applicable law and is
supported by the evidence.” Silberstein v Pro-Golf of Am, Inc, 278 Mich App 446, 451; 750 NW2d 615
(2008). That decision, is likewise “within the trial court’s discretion.” Id.

                               A. THE JURY’S REQUEST FOR EVIDENCE

       Plaintiff argues that the trial court violated MCR 2.513(P) when it refused the jury’s request for a
copy of Hines’s testimony.

        A trial court’s decision whether to provide evidence that the jury requested during deliberations
is reviewed for an abuse of discretion. People v Howe, 392 Mich 670, 677; 221 NW2d 350 (1974).


3
    In fact, this exchange forms the basis for defendants’ cross-appeal.


                                                       -6-
          MCR 2.513(P) provides:

          If, after beginning deliberation, the jury requests a review of certain testimony or
          evidence that has not been allowed into the jury room under subrule (O), the court must
          exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may
          not refuse a reasonable request. The court may make a video or audio recording of
          witness testimony, or prepare an immediate transcript of such testimony, and such tape or
          transcript, or other testimony or evidence, may be made available to the jury for its
          consideration. The court may order the jury to deliberate further without the requested
          review, as long as the possibility of having the testimony or evidence reviewed at a later
          time is not foreclosed.

        Plaintiff argues that the trial court violated MCR 2.513(P) when it “refused” to provide Hines’s
testimony. However, plaintiff starts with the false premise that the trial court “refused” to provide the
jurors Hines’s testimony. The trial court did not refuse anything. Instead, upon realizing that it had
provided an incomplete instruction under M Civ JI 4.114, the trial court decided to re-instruct the jury
and allow it to make future requests, if needed. These actions did nothing to foreclose a subsequent
request for Hines’s testimony. In the context of criminal law, our Supreme Court has noted that there
are logistical problems associated with requests for transcripts and that the key inquiry is whether an
instruction impermissibly forecloses to the jury the possibility of later reviewing the requested
testimony. In so doing, the Court acknowledged that such requests call upon a trial court to exercise
discretion:

          While it is true that trial transcripts often are not prepared until well after trial, we caution
          against instructing the jury in this manner as such instruction forecloses to the jury the
          possibility of later reviewing the requested testimony, e.g., by having the court reporter
          read back the testimony, and consequently, violates the court rule. However, we also note
          that, given that the jury made the request for the testimony of four witnesses only fifteen
          minutes into deliberations, the trial court could have properly refused the request and
          instructed the jury to continue deliberating had it done so in a manner which did not
          foreclose the possibility of having the testimony reviewed at a later time. [People v
          Carter, 462 Mich 206, 214 n 10; 612 NW2d 144, 148 (2000).]

Here, it is clear that the trial court’s instruction complied with the court rule as it did not foreclose the
opportunity to review the testimony at a later time.

                                B. STANDARD JURY INSTRUCTION 12.01

          Plaintiff argues that the trial court erred when it refused to instruct the jury on M Civ JI 12.01.

        Jury instructions “should include all the elements of the plaintiff’s claims and should not omit
material issues, defenses, or theories if the evidence supports them.” Zaremba Equipment, Inc v Harco
Nat’l Ins Co, 280 Mich App 16, 26; 761 NW2d 151 (2008). MCR 2.512(D)(2) provides:


4
    That deposition testimony should be treated the same as testimony at trial.


                                                        -7-
              Pertinent portions of the instructions approved by the Committee on Model Civil
       Jury Instructions or the Committee on Model Criminal Jury Instructions or a predecessor
       committee must be given in each action in which jury instructions are given if

       (a) they are applicable,

       (b) they accurately state the applicable law, and

       (c) they are requested by a party.

However, “it is error to instruct a jury about an issue unsustained by the evidence or the pleadings.”
Murdock v Higgins, 454 Mich 46, 59; 559 NW2d 639 (1997).

       M Civ JI 12.01 provides:

       We have a state statute which provides that [here quote or paraphrase the applicable part
       of the statute as construed by the courts].

       If you find that the [defendant / plaintiff] violated this statute before or at the time of the
       occurrence, you may infer that the [defendant / plaintiff] was negligent. (You must then
       decide whether such negligence was a proximate cause of the occurrence.) [M Civ JI
       12.01 Violation of Statute—Negligence.]

The footnote to the instruction provides, in relevant part:

       This instruction should be given only if defendant or plaintiff has alleged a statutory
       violation as a ground for negligence, and only if –

       the statute is intended to protect against the result of the violation;

       the plaintiff is within the class intended to be protected by the statute; and

       the evidence will support a finding that the violation was a proximate contributing cause
       of the occurrence. [M Civ JI 12.01, n a1.]

The statute plaintiff’s attorney believed that Manns violated was MCL 750.492a, a criminal statute that
provides, in part:

       (1) Except as otherwise provided in subsection (3), a health care provider or other person,
       knowing that the information is misleading or inaccurate, shall not intentionally,
       willfully, or recklessly place or direct another to place in a patient’s medical record or
       chart misleading or inaccurate information regarding the diagnosis, treatment, or cause of
       a patient’s condition. A violation of this subsection is punishable as follows:

        The trial court did not abuse its discretion when it declined to instruct the jury on M Civ JI 12.01.
According to the footnote, the instruction should only be given if plaintiff has alleged a statutory
violation as a ground for negligence and violating the statute was a proximate cause of Patricia’s death.
Plaintiff alleges that Manns was negligent in failing to direct Patricia to an emergency room upon

                                                     -8-
hearing her symptoms, instead telling Patricia to elevate the leg. Manns's documentation of the
conversation (or her addition/alteration) did not cause Patricia’s death. At most, the addition might
reflect a “consciousness of guilt”, which plaintiff pursued at length during trial. This is simply not a
situation for which the jury instruction was intended. Instead, it is better applied to scenarios such as
traffic accidents where one driver’s moving violation may allow the jury to infer that the driver was
negligent.

         Even when there is instructional error, reversal is not required unless failure to do was would be
inconsistent with substantial justice. MCR 2.613(A). “[T]here is no error requiring reversal if, on
balance, the theories of the parties and the applicable law were adequately and fairly presented to the
jury.” Murdock, 454 Mich at 59. “Reversal is not warranted when an instructional error does not affect
the outcome of the trial.” Jimkoski v Shupe, 282 Mich App 1, 9; 763 NW2d 1 (2008). It cannot be said
that the trial court’s decision not to instruct the jury on M Civ JI 12.01 had any impact on the outcome of
the trial. Plaintiff spent an inordinate amount of time at trial trying to show that Manns had altered the
record for some nefarious purpose. But, again, the “alteration” of Patricia’s medical record (if it was so)
had no bearing on the proximate cause of her death. Manns’s alleged negligence was in failing to
instruct Patricia to go to the hospital upon hearing her symptoms. Her notation on the call sheet had no
bearing on whether her advice was negligent.

                                  C. SPECIAL JURY INSTRUCTION

        Plaintiff argues that the trial court erred when it refused to give plaintiff’s proposed special jury
instruction regarding Manns’s alteration of the medical record.

        Plaintiff proposed the following special instruction, based on New Jersey’s Standard Civil Jury
Instruction 5.50H:

                                     Alteration of Medical Records

               Nurses have a duty to ensure that all treatment records accurately reflect the
       treatment or services rendered. Corrections or changes to entries may be made only
       where the change is clearly identified as such, dated and initialed by the person making
       the change. In fact, it is against the law in this State to alter medical records with the
       intent to deceive or mislead anyone.

              In this case you have heard evidence that Defendant, Ali J. Manns, R.N., came
       back and added the following language to the Postoperative Follow-Up Call sheet: “ . . .if
       worsens or 0 improvement call DR or -. ER.”

                The alteration of medical records is admissible as evidence of a defendant’s own
       belief that the actual records do not support her defense. If you find that Defendant, Ali J.
       Manns, R.N., altered the medical records with the intent to deceive or mislead anyone,
       you may infer that the alteration of the records in this case occurred because Defendant,
       Ali J. Manns, R.N. believed that the original record would have been unfavorable in the
       trial of this matter.

        The trial court did not abuse its discretion in declining to give plaintiff’s requested special jury
instruction. Michigan does not have a standard instruction similar to New Jersey’s, but it does have an

                                                    -9-
instruction that allows for a negative inference when evidence has been destroyed. M Civ JI 6.01(a)
provides:

       (The [plaintiff / defendant] in this case has not offered [the testimony of [name] / [identify
       exhibit]]. As this evidence was under the control of the [plaintiff / defendant] and could
       have been produced by [him / her], and no reasonable excuse for the [plaintiff’s /
       defendant’s] failure to produce the evidence was given, you may infer that the evidence
       would have been adverse to the [plaintiff / defendant].) [M Civ JI 6.01 Failure to
       Produce Evidence or a Witness.]

The instruction entitles the jury to draw an adverse inference only when “(1) the evidence was under the
party’s control and could have been produced; (2) the party lacks a reasonable excuse for its failure to
produce the evidence; and (3) the evidence is material, not merely cumulative, and not equally available
to the other party.” Ward v Consolidated Rail Corp, 472 Mich 77, 85-86; 693 NW2d 366 (2005). “It is
well settled that missing evidence gives rise to an adverse presumption only when the complaining party
can establish intentional conduct indicating fraud and a desire to destroy evidence and thereby suppress
the truth.” Id. at 84.

       No evidence was lost or destroyed. Manns readily admitted that she made additions to the call
sheet. The sheet itself remained intact and available for analysis. It was not thrown away, shredded,
suppressed or destroyed. The original call sheet was intact and made available to plaintiff’s handwriting
experts.

                               D. DEADLOCKED JURY INSTRUCTION

        Plaintiff’s arguments are two-fold. It first argues that the trial court erred in failing to read the
jury’s question into the record and inviting the attorneys to respond. It then argues that the trial court
erred in failing to comply with the “Notes on Use” in M Civ JI 60.02.

       Regarding the first of these two arguments, MCR 2.513(N)(2) provides, in relevant part:

       If questions arise, the court and the parties shall convene, in the courtroom or by other
       agreed-upon means. The question shall be read into the record, and the attorneys shall
       offer comments on an appropriate response. The court may, in its discretion, provide the
       jury with a specific response to the jury’s question, but the court shall respond to all
       questions asked, even if the response consists of a directive for the jury to continue its
       deliberations.

There is no support for plaintiff’s contention that the trial court failed to comply with the court rule. A
review of the record reveals that although the trial court did not read the jury’s “question” verbatim, it
clearly informed the parties that the jury had indicated it was at an impasse. The trial court also clearly
invited the attorneys’ comments on how to respond.

       Ultimately, the trial court instructed the jury:

               The Court has previously instructed you that it is your duty to determine the facts
       from evidence received in open court and to apply the law to the facts and in this way
       decide the case.

                                                    -10-
               I am now asking you to return to the jury room for further deliberations. In your
       deliberations, you should re-examine the questions submitted with the proper regard and
       consideration for each other’s opinions.

              You should listen to each other’s arguments with open minds and make every
       reasonable effort to reach a verdict.

               I will give you this written instruction. The deputy at this time, you will need to
       return and continue to deliberate.

       The trial court’s instruction was in keeping with Michigan’s standard jury instruction to
deadlocked juries. M Civ JI 60.20 provides:

       The Court has previously instructed you that it is your duty to determine the facts from
       evidence received in open court and to apply the law to the facts and in this way decide
       the case. I am now asking you to return to the jury room for further deliberations. In your
       deliberations you should reexamine the questions submitted with a proper regard and
       consideration for each other’s opinions. You should listen to each other’s arguments with
       open minds and make every reasonable effort to reach a verdict.

       [Because it appears you are (at an impasse / in need of assistance), I invite you to list the
       issues that (divide / confuse) you so that I can see if I can be of some assistance by
       clarifying or amplifying the final instructions.]

The trial court declined to give the bracketed portion, which is based on MCR 2.513(N)(4):

       When it appears that a deliberating jury has reached an impasse, or is otherwise in need
       of assistance, the court may invite the jurors to list the issues that divide or confuse them
       in the event that the judge can be of assistance in clarifying or amplifying the final
       instructions. [Emphasis added.]

The “Notes on Use” in the model instruction adds: “The Court may then make inquiry of the foreperson
regarding the jury’s ability to reach a verdict and, if further deliberations appear warranted, may give the
instruction and return the jury to the jury room.”

         Plaintiff fails to recognize that “[a] model jury instruction does not have the force and effect of a
court rule.” MCR 2.512(D)(1). Moreover, “use of the term “may” instead of the term “shall” indicates
discretionary, rather than mandatory, action.” Murphy v Michigan Bell Tel Co, 447 Mich 93, 100; 523
NW2d 310 (1994). Finally – and most importantly – plaintiff fails to acknowledge that the jury, in fact,
successfully reached a verdict within one hour of the trial court’s instruction. Therefore, the trial court’s
failure to ask the foreperson whether further deliberations would be warranted is of no moment.

                IV. MILIA’S OWNERSHIP INTEREST IN THE SURGERY CENTER

        Finally, plaintiff raises a number of separate –yet related – issues. Plaintiff argues that the
surgery center’s informed consent contains false statements of fact and law because the form indicates
that the surgeons are independent contractors but the surgery center and its physicians are actually
involved in a joint venture. Plaintiff contends that Milia’s ownership interest results in the surgery

                                                    -11-
center being responsible for Milia’s decisions. Plaintiff believes that the jury should have been able to
decide whether these misrepresentations vitiated Patricia’s consent to surgery and that the trial court
erred in excluding evidence regarding Milia’s ownership interest.

       These issues were addressed at hearings on defendants’ motion for summary disposition and
defendants’ motion in limine. A trial court’s decision on a motion for summary disposition is reviewed
de novo on appeal. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A trial court’s
decision whether to admit evidence is reviewed for an abuse of discretion. Edry v Adelman, 486 Mich
634, 639; 786 NW2d 567 (2010).

       The informed consent provides:

       11. I understand that the physicians providing services to me, including but not limited to,
       the surgeon, anesthesiologist, radiologist and pathologist are independent contractors
       with me and are not employees or agents of the Surgery Center or the Hospital. When a
       patient is under the care and supervision of a physician who is an independent contractor,
       it is the responsibility of the Surgery Center and its nursing staff to carry out the
       instructions of such physician. Neither the Surgery Center nor the Hospital is
       responsible for the medical decisions or actions of such physicians. [Emphasis added.]

        Plaintiff concedes that Milia is not an employee of the surgery center but claims that Milia is
involved in a joint venture and is part owner of the surgery center. Plaintiff argues that, as an owner,
Milia’s negligence is imputed on to the surgery center. Plaintiff cites MCL 333.20813(a) of the public
health code, MCL 333.201 et seq:

       The owner, operator, and governing body of a freestanding surgical outpatient facility
       licensed under this article:

       (a) Are responsible for all phases of the operation of the facility, selection of medical
       staff, and quality of care rendered in the facility.

However, as the trial court and defendants aptly note, an identical provision in the public health code
applies to hospitals:

       The owner, operator, and governing body of a hospital licensed under this article:

       (a) Are responsible for all phases of the operation of the hospital, selection of the medical
       staff, and quality of care rendered in the hospital. [MCL 333.21513(a).]

Our Court has held that § 333.21513(a) does not create a private cause of action. Fisher v WA Foote
Mem Hosp, 261 Mich App 727, 730; 683 NW2d 248 (2004). There is no reason for surgical centers to
be treated differently. Moreover, Grewe v Mt Clemens Gen Hosp, 404 Mich 240, 250; 273 NW2d 429
(1978), confirms that hospitals are not vicariously liable for the negligence of a physician who is an
independent contractor and uses the hospital to provide treatment unless the patient looked to the
hospital to provide medical care. There is no reason to treat surgery centers differently. Moreover, in
denying plaintiff’s motion for a new trial, the trial court noted: “Plaintiff’s arguments that the
negligen[ce] of the physicians is imputable to the DSC and other joint ventures is irrelevant where the
jury has found no negligence.” We agree. Plaintiff’s claim that Patricia’s consent was vitiated because

                                                   -12-
of factual and legal misstatements in the informed consent must fail based on counsel’s
acknowledgement that Milia’s ownership interest was, in fact, stated in the patient handbook and at the
reception desk. Plaintiff’s agency arguments were never pleaded in the trial court and he has not
demonstrated how the public health code changes the well-established rule that hospitals are not liable
for doctors who use the hospital as a situs for patient care. More importantly, in the face of the jury’s
verdict of no negligence, vicarious liability has no application.

       Affirmed. Defendants may tax costs as the prevailing party. MCR 7.219.



                                                           /s/ Christopher M. Murray
                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Karen M. Fort Hood




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