                          STATE OF MICHIGAN

                             COURT OF APPEALS



ESTATE OF GEORGE HEIDT, by BRIAN                                    UNPUBLISHED
HEIDT, Personal Representative,                                     October 30, 2018

               Plaintiff-Appellant,

v                                                                   No. 339695
                                                                    Wayne Circuit Court
ST. JOHN HOSPITAL AND MEDICAL                                       LC No. 16-004761-NH
CENTER,

               Defendant-Appellee,

and

EMERGENCY MEDICINE SPECIALISTS, PC,
SOUTHFIELD RADIOLOGY ASSOCIATES,
PLLC, DON M. BENSON, M.D., DENIS
LINCOLN, M.D., BRIAN PUZSAR, M.D., C.L.,
K.T., J.A., JANE DOE, and JOHN DOE,

               Defendants.


Before: TUKEL, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

        Plaintiff, Estate of George Heidt, appeals the trial court’s order granting summary
disposition under MCR 2.116(C)(10) (no genuine issues of material fact) to defendant St. John
Hospital and Medical Center. We conclude that the trial court erred in ruling that plaintiff failed
to establish questions of material fact as to the standard of care, breach, and causation.
Accordingly, we reverse and remand.

                                            I. FACTS

        Plaintiff’s decedent, George Heidt, died in January 2012, approximately three months
after receiving emergency and surgical care at defendant-hospital. According to his wife, Rita,
George fell at home on October 15, 2011. After being assisted up, he was able to walk, but was
sore. Three days later he was still sore and not feeling better. Rita convinced him to see his
primary care physician, and after examining George on October 18, 2011, his physician referred

                                                -1-
him to defendant-hospital for MRI imaging. The emergency room (ER) physicians noted that
George had some tingling in one leg and so, concerned about the possibility of spinal
compression, ordered an MRI. Rita testified that during the approximately eight hours in
defendant’s ER prior to being transported to the MRI suite, George was able to walk around the
room. Similarly, Jeff Aldis, who transported George to the MRI suite, testified that George was
able to get out of his chair on his own power and transfer to a wheelchair for transport.

        George had a severe curvature of the spine. According to plaintiff’s radiology expert, x-
rays demonstrated that George “had almost a 90 degree bend of his lumbar, thoracic and cervical
spine,” meaning that he was “bent over pretty bad.” This condition of leaning forward from
scoliosis is called kyphosis.1 Charles LaFollette, one of the MRI technicians, recalled
defendant’s posture in the MRI suite as “a little kyphotic” and “a little bent forward.” The
second MRI technician, Katie Shaw, testified that she did not view George while he was briefly
standing and she was unable to discern “if he was hunched.” Aldis testified that he recalled
George being able to stand up straight. An MRI screening form provided to George asked,
“Have you ever had an MRI examination before and had a problem?” George answered “yes”
with the following explanation: “had a hard time getting into the machine.”

        George was eventually supine, i.e., flat on his back, on the MRI table. As will be
discussed below, the manner in which he was placed in that position is a disputed question of
fact. However, it is not disputed that once he was supine he immediately told the MRI
technicians that he had a severe burning pain in his abdomen. They assisted him back to a seated
position and he told them that he could no longer feel his legs. The technicians returned George
to his wheelchair and Aldis transported him back to the ER for further evaluation.

        Rita testified in deposition that when George was returned from the MRI suite he was in
pain and very upset. He told Rita that he “couldn’t feel his legs, he couldn’t move his feet,” and
that “the rest of me hurts because they repositioned me in a way that was very uncomfortable and
very painful.” Rita testified that George also told her that he “was very uncomfortable during the
MRI, that he was—they pushed, manipulated him into position. . . . Manipulated, flexed—
repositioned, I guess is the word I’m looking for, him to be put into an MRI in a way that he was
not happy with. It hurt him.”

        Shaw, Aldis, and LaFollette each testified in deposition. Aldis and LaFollette did not
recall how George moved from his seated position on the table to a supine position. Shaw did
recall the process and testified that George was able to get onto the table unassisted. As for how
he was placed on his back, Shaw testified that she stood at George’s feet while either LaFollette
or Aldis stood next to him “to help guide from behind.” She explained that “there’s a 1, 2, 3
count, and then legs are lifted just to the height of the table and smoothly moved and then laid


1
  According to the American Academy of Orthopedic Surgery, “Kyphosis is a spinal disorder in
which an excessive outward curve of the spine results in an abnormal rounding of the upper
back. The condition is sometimes known as ‘roundback’ or—in the case of a severe curve—as
‘hunchback.’ ” <https://orthoinfo.aaos.org/en/diseases--conditions/kyphosis-roundback-of-the-
spine> (accessed October 26, 2018).


                                               -2-
back on the table, so it’s one fluent [sic] motion.” She further explained: “When I’m standing at
his feet and then there’s someone in front of him and behind him, I would have been supporting
his legs, ready to move, everyone else is ready for him to lie back and then all at once he’s turned
and then reclined. . . . [I]t would have all happened at once . . . .” She could not recall if George
was ever completely flat on the table. She wrote a note in the chart immediately after the
attempted MRI that George was “unable to lie flat without severe burning pain in abdomen. . . .
Also unable to feel feet/legs upon sitting back up.”

        As noted, Aldis and LaFollette did not recall the process of getting George into a supine
position. However, they each offered testimony about their normal procedure for getting patients
in position on the table. Aldis testified that “if they can do it on their own power, they do it on
their own power; if not than [sic] one person would grab the patient’s feet and the other person
would help him them [sic] on the side and lift his legs and sit him up and then lay down.” He
stated that it is usually a two-step procedure in which he and the technicians “get them up and lie
them down.” He testified that if the patient was having trouble lying down that the staff would
offer their arms for the patient to hold onto for support and guidance while the patient lowered
him or herself down, but that the technicians would not use force to assist the patient down.
LaFollette testified that typically if a patient has difficulty lying back, the technician would grab
the patient’s forearm and have the patient grab the technician’s forearm to help guide the patient
down.

        After the incident, George underwent emergency neurosurgery in which it was
determined that his T-10 vertebra was fractured and that the fracture had displaced so as to cause
severe injury to his spinal cord. While the fracture was surgically reduced and fixated during the
surgery, the damage to his spinal cord was irreparable. George remained a paraplegic until he
died of complications a few months later.

        After George’s death, his estate filed a complaint against defendant, the MRI technicians,
and the named physicians and their professional corporations. The claims against the physicians
were ultimately dismissed by stipulation. Following discovery, defendant moved for summary
disposition under MCR 2.116(C)(10) on the grounds that plaintiff’s experts had offered
conflicting and unsupported testimony about the standard of care and had presented speculative
theories of causation regarding the remaining defendant MRI technicians. The trial court agreed
and granted summary disposition.

                                  II. STANDARD OF REVIEW

        We review de novo a lower court’s decision on a motion for summary disposition. See
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled to summary
disposition if “there is no genuine issue as to any material fact, and the moving party is entitled
to judgment . . . as a matter of law.” MCR 2.116(C)(10). A genuine issue of material fact exists
if, when viewing the record in the light most favorable to the nonmoving party, reasonable minds
could differ on the issue. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 116;
839 NW2d 223 (2013). We review the trial court’s decision to exclude evidence for an abuse of
discretion. See Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). Questions of law

                                                -3-
relating to evidentiary rulings are reviewed de novo. Elher, 499 Mich at 21. “The admission or
exclusion of evidence because of an erroneous interpretation of law is necessarily an abuse of
discretion.” Id.

                                          III. ANALYSIS

        “The plaintiff in a medical malpractice action bears the burden of proving: (1) the
applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4)
proximate causation between the alleged breach and the injury.” Cox v Hartman, 322 Mich App
292, 299; 911 NW2d 219 (2017) (quotation marks and citation omitted). “Generally, expert
testimony is required in a malpractice case in order to establish the applicable standard of care
and to demonstrate that the professional breached that standard.” Elher, 499 Mich at 21
(quotation marks and citation omitted). MRE 702 governs the admission of expert testimony:

               If the court determines that scientific, technical, or other specialized
       knowledge will assist the trier of fact to understand the evidence or to determine a
       fact in issue, a witness qualified as an expert by knowledge, skill, experience,
       training, or education may testify thereto in the form of an opinion or otherwise if
       (1) the testimony is based on sufficient facts or data, (2) the testimony is the
       product of reliable principles and methods, and (3) the witness has applied the
       principles and methods reliably to the facts of the case.

“MRE 702 incorporates the standards of reliability that the United States Supreme Court
established in Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469
(1993), in interpreting the equivalent federal rule of evidence.” People v Muhammad, ___ Mich
App ___, ___; ___ NW2d ___ (2018) (Docket No. 338300); slip op at 4. MCL 600.2955 sets
forth factors to consider when the trial court is examining the admissibility of “a scientific
opinion” by a qualified expert. MCL 600.2955(1).

                                    A. STANDARD OF CARE

       Plaintiff argues that the trial court erred in disregarding its experts’ standard-of-care
opinions. We agree.

        Plaintiff’s primary standard-of-care expert was Darlene Perelka. Perelka testified that she
had over 20 years’ experience as a radiological technician certified to perform MRIs and
defendant did not challenge her qualification as an expert in this field. She opined that the
standard of care required that the MRI technicians allow George to lie down by himself instead
of manipulating him into a supine position using force. She testified that moving George from a
seated position on the table to a supine position in the “one fluid motion” as described by Shaw
was a violation of the standard of care which requires that the patient be positioned in a safe and
prudent manner rather than with the use of force. She explained that the standard of care
required the technicians to “wait[] for Mr. Heidt to be ready to lay down and under his power to
lay down.” She further stated that when the patient is ready to lie back, it is not a breach to assist
the patient by supporting his weight but that it was a breach to “forcibly lay him down.” She
also stated that with a kyphotic patient the standard of care requires “patience and time to let the
patient get acclimated on the table and not [move the patient in] one continuous motion.”

                                                 -4-
Perelka stated that her opinion was supported by the American Registry of Radiologic
Technologists (ARRT) Code of Ethics.

        The trial court said that it was disregarding Perelka’s testimony for two reasons. First, it
opined that her standard-of-care testimony conflicted with the testimony of Dr. Ronald
Washburn, plaintiff’s radiology expert. Dr. Washburn testified that a kyphotic patient should be
placed on his side rather than his back when undergoing an MRI. However, neither the trial
court nor defendant has explained why a conflict between experts renders either of their opinions
inadmissible; no caselaw has been cited to support such a principle. Moreover, Dr. Washburn’s
testimony was not materially inconsistent with Perelka’s because he agreed that force should not
be used to get a patient into a supine position. Specifically, in his affidavit of merit, Dr.
Washburn opined that the standard of care required diagnostic radiologists, “directly or indirectly
through their assistants,” i.e., MRI technicians, to “refrain from manipulating the decedent’s
body utilizing excessive force on the spinal column . . . .” This was fully consistent with
Perelka’s testimony. In other words, the experts disagreed on precisely how to take an MRI of a
kyphotic patient. But they agreed that the technicians should not use force to get the patient flat
on his or her back, which is what is at issue in this case.

         The trial court’s second basis for disregarding Perelka’s testimony was its conclusion that
“Perelka has no scientific basis for her opinion beyond ethic codes that require MRI technicians
to exercise caution and care and safety for the patient.” Regardless of its admissibility at trial,
we see no reason why a code of ethics would be irrelevant to the court’s inquiry into the
reliability of Perelka’s testimony.2 The ARRT Code of Ethics is relevant to that determination
because it supports Perelka’s view that “the exercise of caution and care and safety [of] the
patient” is part of the technician’s duty. The Code provides that “[t]he radiologic technologist
assesses situations; exercises care, discretion and judgment; assumes responsibility for
professional decisions; and acts in the best interest of the patient.”3 By contrast, defendant’s
expert’s affidavit indicates that the technician’s duty is to get the patient lying flat and makes no
reference to any duty to do so with care and caution for the patient’s safety. 4 Moreover, we do
not agree with the trial court’s conclusion that it is necessary to have “scientific” support for the
principle that MRI technicians should not use physical force to place a kyphotic patient into a
supine position. Daubert acknowledged that “[s]ome propositions . . . are too particular . . . or of
too limited interest to be published.” Daubert, 509 US at 593. Given that neither party has cited




2
  In a legal malpractice action, for example, a violation of the Code of Professional
Responsibility “is rebuttable evidence of malpractice.” Lipton v Boesky, 110 Mich App 589,
597-598; 313 NW2d 163 (1981).
3
  Perelka testified to that specific precept; the ARRT Code of Ethics can be found online.
<https://www.arrt.org/docs/default-source/Governing-Documents/code-of-ethics.pdf?sfvrsn=10>
(accessed October 26, 2018).
4
  Defendant’s expert also stated that if a patient is unable to tolerate a study due to pain, the
technicians should consult a physician.


                                                -5-
any medical literature on the subject, we conclude that the standard for safely positioning
kyphotic MRI patients is one of those propositions.

        Further, Perelka was not presenting testimony pertaining to the scientific process. See Id.
at 590 (determining that that “[t]he adjective ‘scientific’ implies a grounding in the methods and
procedures of science.”). She did not offer an opinion regarding a novel or complex scientific
theory and did not provide a medical opinion regarding the cause of the injury.5 Her standard-of-
care opinion—that a patient with difficulty lying flat should not be placed into that position by
the use of physical force, but instead be afforded time and physical support—is grounded in
common sense combined with long professional experience rather than controlled studies6 and
publications.

        For those reasons, we conclude that Perelka was not rendering a scientific opinion.
Accordingly, the factors set forth in MCL 600.2955 were not applicable in this case and the trial
court erred in focusing on the lack of a scientific basis for Perelka’s opinion. Nonetheless, we
note that there was evidence presented from which to conclude that her testimony was “generally
accepted within the relevant expert community.” MCL 600.2955(1)(c). As noted, Dr. Washburn
opined that the standard of care required diagnostic radiologists, either directly or through MRI
technicians, to refrain from exercising force on a patient’s spinal column. The ARRT Code of
Ethics also demonstrates a general acceptance of Perelka’s opinion. Further, LaFollette’s and
Aldis’s testimony describing their typical procedure for assisting a patient into a supine position
was consistent with Perelka’s standard-of-care opinion. They did not express disagreement with
that standard as defined by Perelka, but with her assertion that they violated it.7

       In sum, there was sufficient evidence to establish the reliability of Perelka’s standard-of-
care opinion. Her opinion was supported by her long professional experience, Dr. Washburn’s
testimony, the testimony of the defendant’s technicians, and the ARRT Code of Ethics.
Inconsistencies between Perelka’s and Dr. Washburn’s testimony may lead the jury to give their
testimony diminished weight, but it is not relevant to the admissibility of their opinions. The
claimed lack of a scientific basis for Perelka’s opinion was also irrelevant because she was not
rendering a scientific opinion. Thus, the trial court abused its discretion in disregarding
Perelka’s testimony.

                                              B. BREACH



5
    We agree with defendant that Perelka is not qualified to testify about causation.
6
    Given the risk to patients, it is unlikely that such studies could be ethically performed.
7
   The trial court also concluded that there was “a question of whether the standard of care
requires the MRI technicians to diagnose kyphosis.” The trial court is correct that MRI
technicians are not required or permitted to diagnose a patient’s illness or injury. However, there
is evidence that George’s kyphosis, or bent spine, was apparent. Regardless of its cause, that
abnormality would be relevant to a technician’s duty to assess the situation and exercise care and
caution for the patient.


                                                   -6-
       We conclude that the court also erred when it determined that there was no evidence to
support Perelka’s opinion that the MRI technicians breached the standard of care.

        A breach is a deviation from the standard of care. See Martinez v Redform Comm Hosp,
148 Mich App 221, 230; 384 NW2d 134 (1986). Perelka testified that the technicians breached
the standard of care by using force to place George supine rather than allowing him to lie down
on his own. The trial court found that Perelka’s opinion was “speculative and based on
conjecture” because, in the court’s view, there was no evidence in the record that the MRI
technicians did use force.

        A review of the record, however, does provide support for Perelka’s conclusion. First, as
noted, one of the technicians, Shaw, testified that they actively moved George by lifting his legs,
turning him, and laying him on his back all in one motion. Defendant does not explain how
those three actions could all occur simultaneously without the use of force.8 Second, George’s
own statements to his wife immediately after the incident recounted the use of substantial force
by the technicians. Rita testified that George was in pain and very upset when he returned from
the MRI. According to Rita’s testimony, when George returned he told her that he “couldn’t feel
his legs, he couldn’t move his feet,” and he stated that “the rest of me hurts because they
repositioned me in a way that was very uncomfortable and very painful.” Rita testified that
George also told her that “they pushed, manipulated him into position” during the MRI in a way
that was hurtful. Certainly the decedent’s statement that he was “pushed” and “manipulated”
along with Shaw’s description of the action is sufficient to provide factual support for Perelka’s
opinion.

         The trial court also erred by giving little or no weight to Rita’s testimony, noting that her
testimony occurred more than five years after the event and that she had not been in the MRI
suite with George. This was plainly a credibility determination, which is a finding of fact; see
MCR 2.613(C). The trial court may not find facts or assess credibility when ruling on a motion
for summary disposition. Skinner v Square D Co, 445 Mich 153, 161; 516 NW2d 475 (1994); In
re Peterson Estate, 193 Mich App 257, 261; 483 NW2d 624 (1993). Further, “[i]t is for the trier
of fact to assess credibility; a jury may choose to credit or discredit any testimony.” Bank of
America, NA v Fidel Nat Title Ins Co, 316 Mich App 480, 512; 892 NW2d 467 (2016). And
given that Rita was testifying as to her husband’s description of what occurred, the fact that she
was not in the MRI suite to personally witness the events is irrelevant. Moreover, the trial court
erred by drawing inferences in favor of defendant, the moving party, rather than plaintiff, the
nonmoving party. Dextrom v Wexford Co, 287 Mich App 406, 415; 789 NW2d 211 (2010).




8
  To the degree the court did consider this testimony; it appears to have inferred that the MRI
technicians’ motions did not involve force. However, when deciding a motion for summary
disposition, a court must consider the evidence in the light most favorable to the nonmoving
party, Gorman, 302 Mich App at 116, and all reasonable inferences are to be drawn in favor of
the nonmovant, Dextrom v Wexford Co, 287 Mich App 406, 415; 789 NW2d 211 (2010).



                                                 -7-
        On appeal, defendant argues that the trial court’s decision to ignore the content of Rita’s
testimony, even if erroneous, was harmless because the court could have excluded Rita’s
testimony recounting her husband’s statements as hearsay. We disagree. Hearsay is “a
statement, other than the one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted.” MRE 801(c). It is generally
inadmissible, unless it is subject to a hearsay exception. MRE 802. A hearsay exception exists
concerning “[a] statement relating to a starting event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” MRE 803(2). The trial court
may consider indications that the witness was still in shock and under a continuing level of
stress. See People v Smith, 456 Mich 543, 552-553; 581 NW2d 654 (1998).

        Rita testified that her husband was very upset and stressed when he told her what had
happened to him in the MRI suite. Indeed, we think it extraordinarily unlikely that the shock and
stress of being made paraplegic would dissipate in just a few minutes. Accordingly, Rita’s
testimony about what George said to her was subject to the excited utterance hearsay
exception—it was a statement concerning a startling event or condition, made while George was
still under the stress of the event or condition.9 Given Rita’s testimony and Shaw’s testimony,
the trial court erred in concluding that Perelka’s testimony regarding breach was factually
unsupported.

                                        C. CAUSATION

       Finally, plaintiff argues that the trial court erred when it determined that plaintiff had
presented only speculative evidence concerning causation. Again, we agree.

        In a medical malpractice action, proximate cause requires (1) that the negligent conduct
was the “but for” cause of plaintiff’s injury and (2) that without the conduct, plaintiff’s injury
would not have occurred. O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 496; 791 NW2d
853 (2010). It is well-established that “the negligence must be ‘a proximate cause’ not ‘the
proximate cause.’ ” Id. at 497. In other words, more than one cause may have contributed to a
plaintiff’s injury. Id. at 496-497. A plaintiff can prove factual causation by circumstantial
evidence, but the plaintiff’s circumstantial evidence “must facilitate reasonable inferences of
causation, not mere speculation.” Skinner, 445 Mich at 163-164. The plaintiff’s theory of
causation must have some basis in facts from which the jury could conclude that, more likely
than not, the plaintiff’s injuries would not have occurred but for the defendant’s conduct. Id. at
164-165. An expert’s opinion may be based on well-established physical principles. See People
v Carll, ___ Mich App ___, ___; ___ NW2d ___ (2018) (Docket No. 336272); slip op at 6
(concerning principles of hydraulics).

       In this case, the court stated, “No expert in this case has any evidence beyond conjecture
and correlation that what happened—or what the MRI techs did caused plaintiff’s injuries.” The
record does not support this conclusion. Plaintiff’s causation experts testified that the MRI


9
 It is likely that the statements would also be admissible as a present sense impression, MRE
803(1), and as the decedent’s statements regarding his existing physical condition, MRE 803(3).


                                                -8-
technicians caused plaintiff’s injuries—either by causing the displaced fracture itself, or by
displacing a non-displaced fracture. Their testimony was sufficient to create a genuine issue of
material fact on the issue of causation. 10

        Plaintiff presented three causation experts: two neurosurgeons, Dr. Mary Edwards-
Brown11 and Dr. Mark Hornyak, and a radiologist, Dr. Washburn. Dr. Edwards-Brown testified
that the fracture most likely occurred in the fall and that it was displaced on the MRI table. She
explained:

               [I]t seems logical . . . that [the vertebra] broke when he fell. But at that
       point it was an unstable injury. So you can’t call it a stable injury just because he
       didn’t have a spinal cord injury [at that time] . . . . But his soft tissues were
       holding it more or less in position, and the muscles are holding it in position. And
       muscles experience pain if they’re stretched and if there’s a fracture in the
       vicinity. And so the muscles tend to spasm, tend to hold it.

               And—but—when placed in a supine position, the—upper torso, which has
       some weight behind it, they say the head weighs about like a bowling ball, so
       that’s a fair amount of force, plus shoulders, when tipped into supine position that
       would likely be enough to cause the fracture to separate and become tragically
       dislocated, and spinal cord compression.

Dr. Edwards-Brown indicated that the displacement would have been avoided had George
attempted to lay down on his own power:

              But were he to try to [lay back] himself without any help, the muscle
       spasm, which goes along with an acute injury, would tend to hold him until he
       had enough pain and then he would say “Hey, I can’t do that.”



                                              * * *




10
  The record, at least at this stage of the litigation, does not state defendant’s position regarding
the cause of George’s paralysis.
11
   Defendant argues that the testimony of Dr. Edwards-Brown is not part of the record below
because the transcript of that deposition was not provided to the trial court. Dr. Edwards-Brown
testified shortly before the motion hearing and the transcript was not yet available. Plaintiff’s
counsel explained this to the trial court and described the expert’s testimony during the hearing.
For those reasons, we consider Dr. Edwards-Brown’s testimony as part of the record.


                                                 -9-
       It’s a self-protective mechanism. Pain stops us from doing things that hurt, hurt a
       lot. You can push through pain if it’s a mild amount, but a large amount of pain is
       going to stop you.[12]

        Dr. Hornyak similarly opined that George came into the ER with a non-displaced fracture
caused by his fall three days earlier and that the actions of the MRI technicians caused that
fracture to displace, damaging the spinal cord. Dr. Hornyak’s opinion that the MRI technicians
caused the injury to the spinal cord was based on biomechanical principles, specifically relating
to forces that cause particular spinal injuries. He explained that fractures have an axis of
rotation, which is “the vector that would be applied relative to the spine and some fulcrum . . . .”
In plaintiff’s case, Dr. Hornyak testified that the injury was the result of George’s body being
“rotated posteriorly about an axis of the fracture.”

        The court stated that Dr. Hornyak’s opinion was speculative because the doctor testified
that he did not know how the MRI technicians applied force to George. When viewed in
context, Dr. Hornyak’s testimony does not support this conclusion. First, Dr. Hornyak testified
that the imaging studies showed that the injury was an extension injury, i.e., consistent with
“excessive force or force” directed at laying George down on his back. He explained that this
was demonstrated by the bony fragments of the T-10 vertebra. And while Dr. Hornyak testified
that he did not know exactly how the force was applied because he was not present in the room,
he ruled out the possibility that George’s fracture would have displaced merely by lying back
under his own power. He concluded instead that the fracture displacement could only have
occurred due to a vector of force being applied toward placing George in a supine position.

        Dr. Washburn was mostly in agreement with Dr. Hornyak regarding the cause of
George’s paraplegia. But contrary to Dr. Hornyak, Dr. Washburn opined that the fall at home
was unlikely to have caused George’s fracture and that the MRI technicians’ actions caused the
T-10 vertebra to both fracture and displace into the spinal cord. The different views of when the
fracture initially occurred is not material, however, because the experts agreed that what was
relevant for causation was not when the fracture occurred but when and how it became
displaced, given that a non-displaced fracture would not have caused George’s spinal injury and
paralysis.

                                       IV. CONCLUSION

        In sum, viewing the evidence in a light most favorable to the nonmoving party, plaintiff
established questions of fact as to the standard of care, its breach, and the causation of the
decedent’s paraplegia.




12
   This testimony also supports the conclusion that the technicians used force in getting George
to a supine position because it indicates that had he done so on his own, the pain would have
caused him to sit back up in a self-protective action.


                                               -10-
        Accordingly, we reverse the grant of summary disposition to defendant and remand for
further proceedings consistent with this opinion. We do not retain jurisdiction.



                                                        /s/ Jonathan Tukel
                                                        /s/ Jane M. Beckering
                                                        /s/ Douglas B. Shapiro




                                            -11-
