                       STATE OF MICHIGAN

                         COURT OF APPEALS



DENISE GOEDKER,                           UNPUBLISHED
                                          May 10, 2016
           Plaintiff-Appellee,
V                                         No. 324074
                                          Washtenaw Circuit Court
JON L. SCHRAM, M.D.,                      LC No. 13-000195-NH

           Defendant-Appellant,

and

FOREST HEALTH MEDICAL CENTER, LLC,

           Defendant-Appellee,

and

DR. ELAINA VAYNTRUB and BARIATRIC
INTERNISTS OF MICHIGAN, P.C.,

           Defendants.


DENISE GOEDKER,

           Plaintiff-Appellee,
V                                         No. 324587
                                          Washtenaw Circuit Court
FOREST HEALTH MEDICAL CENTER, LLC,        LC No. 13-000195-NH

           Defendant-Appellant,

and

JON L. SCHRAM, M.D.,

           Defendant-Appellee,


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and

DR. ELAINA VAYNTRUB and BARIATRIC
INTERNISTS OF MICHIGAN, P.C.,

                Defendants.


DENISE GOEDKER,

                Plaintiff-Appellee,
V                                                                   No. 324822
                                                                    Washtenaw Circuit Court
DR. ELAINA VAYNTRUB,                                                LC No. 13-000195-NH

                Defendant-Appellant,

and

JON L. SCHRAM, M.D., FOREST HEALTH
MEDICAL CENTER, LLC, ADDISON
COMMUNITY PHYSICIAN SERVICE
ASSOCIATION, d/b/a BARIATRIC
SPECIALISTS OF MICHIGAN, and BARIATRIC
INTERNISTS OF MICHIGAN, P.C.,

                Defendants.


Before: HOEKSTRA, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

        Defendants Dr. Jon L. Schram, Dr. Elaina Vayntrub, and Forest Health Medical Center,
LLC, (collectively, the medical professionals) appeal as on leave granted1 the trial court’s denial
of their motions for summary disposition under MCR 2.116(C)(10) in this medical malpractice
action. Plaintiff, Denise Goedker, alleged that the medical professionals failed to timely
diagnose a bowel obstruction that Goedker developed after a surgery, and that this failure led to
an increased risk of bowel perforation during a later surgery to remove the obstruction. Because



1
    Goedker v Schram, 498 Mich 882 (2015).


                                                -2-
the only factual support for causation was contained in an affidavit contrary to deposition
testimony, we reverse and remand for entry of summary disposition.

                                 I. FACTUAL BACKGROUND

         Dr. Schram performed a successful laparoscopic gastric bypass surgery for Goedker on
September 27, 2010, and Dr. Vayntrub provided postoperative observation and treatment.
Goedker does not allege that Dr. Schram’s performance of the surgery was negligent. However,
Goedker developed complications from the surgery. Goedker’s nursing notes indicated that on
September 28, 2010, Goedker had hypoactive bowel sounds, abdominal pain, nausea, and an
inability to pass gas, and complained of these conditions throughout the day. Dr. Vayntrub
testified that the results of an abdominal x-ray and upper GI study on Goedker were negative for
obstruction and, when Dr. Vayntrub visited Goedker that day, she was doing well and denied
having nausea. Goedker began complaining of nausea again at around midnight.

        On September 29, 2010, Dr. Schram examined Goedker and diagnosed her with a post-
operative ileus, a common post-operative disruption of the intestinal tract. Dr. Schram
prescribed Goedker a medication to treat the condition and instructed nurses to discharge
Goedker from the hospital if her situation resolved. As of 10:23 p.m., Goedker’s nursing notes
reflected that she was “voiding and passing flatus” and that her vital signs were stable. Goedker
was discharged from the hospital.

       On September 30, 2010, Goedker again experienced nausea and abdominal pain.
Goedker arrived at the hospital at around 7:40 p.m. and a CT scan revealed a complete bowel
obstruction. During an emergency laparoscopic surgery, Goedker’s bowel was perforated and
she developed sepsis, which in turn caused more complications and an extended hospital stay.

        Goedker filed this suit, alleging in pertinent part that the medical professionals’ failure to
timely diagnose her with a bowel obstruction led to an increased chance of bowel perforation
during her emergency surgery. Goedker did not allege that either the bypass or emergency
laparoscopic surgeries were negligently performed, or that her bowel obstruction or the
emergency surgery could have been avoided. After extensive discovery, the medical
professionals moved for summary disposition under MCR 2.116(C)(10), alleging in pertinent
part that Goedker failed to provide evidence that the medical professionals’ actions proximately
caused her injury. Relying on an affidavit of Dr. John W. Baker, which Goedker filed after Dr.
Baker’s deposition, the trial court denied the medical professionals’ motions for summary
disposition.

                                  II. STANDARD OF REVIEW

        This Court reviews de novo the trial court’s decision on a motion for summary
disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). A party is entitled
to summary disposition under MCR 2.116(C)(10) if “there is no genuine issue as to any material
fact, and the moving party is entitled to judgment . . . as a matter of law.” The trial court must
consider all the documentary evidence in the light most favorable to the nonmoving party. MCR
2.116(G)(5); Maiden, 461 Mich at 120. A genuine issue of material fact exists if, when viewing



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the record in the light most favorable to the nonmoving party, reasonable minds could differ on
the issue. Allison v AEW Capital Mgt, LLP, 481 Mich 419, 425; 751 NW2d 8 (2008).

        To survive a motion for summary disposition, once the nonmoving party has identified
issues in which there are no disputed issues of material fact, the burden is on the plaintiff to show
that disputed issues exist. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314
(1996). The nonmoving party “must go beyond the pleadings to set forth specific facts showing
that a genuine issue of material fact exists.” Id. A party may not create an issue of fact by
contradicting his or her deposition testimony with contradictory statements in an affidavit.
Dykes v William Beaumont Hosp, 246 Mich App 471, 480-481; 633 NW2d 440 (2001).

                                         III. ANALYSIS

        Goedker’s claims against the medical professionals all rest on whether a delayed
diagnosis led to an increased chance of her injury. In each of their individual appeals, the
medical professionals contend that the trial court erred in relying on Dr. Baker’s affidavit to
establish proximate cause because that affidavit was directly contradictory to Dr. Baker’s
testimony at deposition. We agree.

      MCL 600.2912a(2) requires a plaintiff in a medical malpractice action to prove
proximate cause:

       In an action alleging medical malpractice, the plaintiff has the burden of proving
       that he or she suffered an injury that more probably than not was proximately
       caused by the negligence of the defendant or defendants. In an action alleging
       medical malpractice, the plaintiff cannot recover for loss of . . . an opportunity to
       achieve a better result unless the opportunity was greater than 50%.

       It is undisputed that Goedker’s bowel obstruction would have required surgical treatment
regardless of when it was diagnosed and that bowel perforation is a common complication of
bowel obstruction surgery. Goedker’s theory of the case is that had the medical professionals
performed a radiological scan on September 29, 2010, instead of on September 30, 2010, her
bowel obstruction would have been discovered sooner and its earlier discovery would have
reduced her chances of suffering a bowel perforation. In other words, Goedker contends that the
delayed diagnosis made a positive outcome for her surgery less likely.

        Two of Goedker’s experts did not offer opinions supporting this theory. Dr. David
Winston testified that, “I think she should have been kept in the hospital and perhaps a better
outcome would have occurred.” And Dr. Kenneth Krause testified that, “You know, it’s always
difficult to say what would have happened if you were there a day earlier or two days earlier,”
but “you would like to identify these and treat . . . earlier rather than later[.]” Neither expert
opinioned whether a delayed diagnosis made Goedker’s injury more likely, and certainly neither
opined regarding her opportunity to receive a better result.

        In determining that a genuine issue of material fact existed regarding causation, the trial
court relied on the affidavit of Dr. Baker, provided after his deposition, in which Dr. Baker stated
that the medical professionals should have diagnosed a bowel obstruction on September 29,


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2010, and that, as a result, Goedker suffered an increased risk of a bowel perforation. Dr.
Baker’s affidavit provided:

       b. That the bowel obstruction would have been diagnosed if radiology testing was
       performed prior [to] Mrs. Goedker being discharged home from the Forest Health
       Medical Center on September 29, 2010.

       c. That discharging Mrs. Goedker home from Forest Health Medical Center on
       September 29, 2010 without diagnosing her bowel obstruction created a lengthy
       delay in the diagnosis of her bowel obstruction and as a result she was not taken
       into the operating room until October 1, 2010.

       d. That the repair surgery for a bowel obstruction becomes more difficult to
       perform and the risk of complications, including a perforation, substantially
       increases the longer a bowel obstruction goes undiagnosed and untreated.

       e. That the delay in timely diagnosis of Mrs. Goedker’s bowel obstruction caused
       her bowel to become significantly dilated over time and greatly increased the risk
       of complications to surgically treat her condition, which included the risk of
       perforation of the bowel during surgery.

       f. That had the bowel obstruction been timely diagnosed during Mrs. Goedker’s
       post-operative admission at Forest Health Medical Center, the risk of perforation
       during the repair surgery would have been extremely low and more likely than not
       could have been avoided and would not have occurred.

       e. That had earlier surgery been performed at Forest Health Medical Center prior
       to Mrs. Goedker’s discharge home, it is more probable than not that the Plaintiff
       would not have suffered the serious damages and harm caused by the perforation
       that occurred during the emergency surgery . . . .

         However, at his deposition, Dr. Baker did not testify with such certainty. Dr. Baker
testified that the medical professionals should have performed a radiological study if Goedker’s
condition was not improving:

              Q. Do you have an opinion as to when the obstruction should have been
       diagnosed?

              A. Yes.

              Q. What is your opinion?

                A. I think that they should have evaluated her when she did not continue
       the usual course that you’re used to seeing with their patients that they’re going
       home the first or second day, that they’re tolerating liquid, that they’re passing
       flatus, they’ve stopped belching, they’re not nauseated, and that they meet their
       general criterial for discharge. When you evaluate, you see a general course, and
       when somebody is falling outside of that course, then you start to address other

                                              -5-
       issues. You would then consider if they’re not getting better, do you do plain
       film, do you do a CAT Scan, do you try to evaluate them for it.

Dr. Baker testified that records indicated that Goedker was getting better throughout the day on
September 29, 2010:

             Q. You are aware that over the course of that day, on the 29th, Mrs.
       Goedker represented that her pain was improving, correct?

              A. Yes, sir.

              Q. You are aware that she represented that her ability to pass flatus
       returned, correct?

              A. Yes, sir.

              Q. Those subjective representations from a plaintiff are inconsistent with
       the manifestation of an obstruction, true?

              A. Yes, sir.

And Dr. Baker testified that the medical professionals should not necessarily have suspected a
bowel obstruction on September 29, 2010:

              Q. When Dr. Schram saw Mrs. Goedker on the 29th, should he have
       suspected an obstruction?

              A. Not necessarily.

               Q. Up until that point you would agree that it was reasonable and
       appropriate for Dr. Schram to suspect and to formulate a treatment plan for an
       ileus, correct?

              A. Yes, sir.

              Q. And that’s what he did by initiating the administration of [medication],
       correct?

              A. Yes, sir.

               Q. After the administration of the [medication] as we’ve already
       discussed, Mrs. Goedker’s abdominal pain improved, and, her ability to pass
       flatus returned, correct?

              A. Yes, sir.

               Q. Was Dr. Schram required to order the CT scan or an X-ray or some
       other radiograph on September 29th?


                                              -6-
                  A. Mrs. Goedker continued to have some abdominal distension and
          nausea throughout the course of the day. I think that would have warranted at
          least a plain film abdominal series looking at the patients’ abdominal both in flat
          and erected position to see if she had continued ileus or she was developing signs
          of an obstruction.

                 Q. Do you have an opinion as to what plain film would have shown if it
          had been ordered? Let’s say at noon on September 29th?

                   A. It would have shown probably dilated small bowel and colon.2

        We conclude that Dr. Baker’s affidavit is contrary to his deposition testimony regarding
causation. Dr. Baker stated in his affidavit that Goedker certainly had a bowel obstruction on
September 29, 2010, and that a radiological scan would have discovered it, and that therefore the
failure to diagnose it directly led to an increased risk of bowel perforation. However, at his
deposition Dr. Baker testified that a radiological scan on the 29th would have shown a dilated
bowel—which is consistent with an ileus. Dr. Baker also testified at his deposition that
radiological testing should have been ordered if Goedker’s condition did not improve, and then
acknowledged that Goedker’s condition improved throughout the day on September 29, 2010.
Dr. Baker did not testify at his deposition that failure to conduct a radiological scan on
September 29, 2010, led to a significantly increased risk of perforating Goedker’s bowel during
her later surgery. However, that is what his affidavit provides. We conclude that Dr. Baker’s
affidavit contradicted his deposition testimony, and that the trial court should not have
considered Dr. Baker’s contradictory affidavit when ruling on the motion.

        Because Dr. Baker’s contrary affidavit was the only support for the proposition that a
radiological scan on September 29, 2010, would have led to a more positive outcome, we
conclude that the trial court should have granted summary disposition. Accordingly, we direct
the trial court to grant summary disposition in favor of the medical professionals. Given our
resolution of this issue, we need not reach the medical professionals’ remaining issues.3




2
    Dr. Baker previously testified that a dilated small bowel and colon was consistent with an ileus:
                   A. There was some small bowel and colon seen on [the GI study on the
          28th].
                   Q. Which would be consistent with the presence of an ileus?
                   A. Yes, sir.
3
  However, we note that given Dr. Baker’s failure to address medical probabilities in his
affidavit, even if the trial court properly considered that affidavit, it was deficient for the
purposes of MCL 600.2912a(2). See Pennington v Longabaugh, 271 Mich App 101, 104-105;
719 NW2d 616 (2006).


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        We reverse and remand. We do not retain jurisdiction. The medical professionals may
tax costs. MCR 7.219(A).

                                                        /s/ Joel P. Hoekstra
                                                        /s/ Peter D. O’Connell
                                                        /s/ Christopher M. Murray




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