                           STATE OF MICHIGAN

                             COURT OF APPEALS



ROBERT HOLCOMB, as personal representative                           UNPUBLISHED
of the Estate of ROBERTA HOLCOMB, deceased,                          January 10, 2017

               Plaintiff-Appellant/Cross-Appellee,

v                                                                    No. 328762
                                                                     Tuscola Circuit Court
JAMES NEUENSCHWANDER, M.D.,                                          LC No. 12-027483-NH

               Defendant-Appellee/Cross-
               Appellant,
and

CARO COMMUNITY HOSPITAL,
EMERGENCY PHYSICIANS MEDICAL,
RICHARD HODGE, M.D., LEIGHTON LUM,
D.O., KELLAM & ASSOCIATES, P.C., and
VIRTUAL RADIOLOGIC,

               Defendants.


Before: BOONSTRA, P.J., and CAVANAGH and K. F. KELLY, JJ.

PER CURIAM.

        In this medical malpractice action, plaintiff’s estate appeals as of right an order for “no
cause of action” against defendant following a jury trial. Defendant cross-appeals from the same
order, arguing that the matter should never have proceeded to trial and that the trial court erred in
failing to grant defendant’s earlier motion for summary disposition. Finding no errors
warranting reversal, we affirm as to the primary appeal. Given this decision, there is no need to
consider defendant’s cross appeal.

                                        I. BASIC FACTS

       On Wednesday, April 14, 2010, 68-year-old Roberta Holcomb (Roberta) underwent a
laparoscopic cholecystectomy (gallbladder removal) with her surgeon, Dr. Lathrup. By 10:00
p.m. Friday evening, she developed pain in her side and went to Caro Community Hospital
where she saw defendant. Defendant, an emergency room physician, had not performed
Roberta’s surgery. Absent Roberta’s abdominal pain and recent surgery, defendant found no

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other clinical evidence that Roberta suffered from a post-operative infection or bowel
perforation. He discharged Roberta at 2:00 a.m. with instructions that she see her general
surgeon at Covenant Hospital if the pain worsened. Roberta’s pain returned once home, so she
proceeded to Covenant as instructed at 5:00 a.m. on April 17th. There, she was seen by Lathrup’s
professional partner, Dr. Todd Richardson. Richardson, also noting the lack of clinical
indications of a perforation, suggested a conservative course of treatment. Rather than
immediately taking Roberta into surgery, Richardson suggested that Roberta, who was receiving
intravenous antibiotics, remain under close observation. Eventually Roberta’s symptoms
worsened and Richardson performed exploratory surgery at 12:00 p.m. on April 17th. During
the surgery, Richardson discovered and repaired a small perforation in Roberta’s bowel.
Roberta’s recovery was complicated. She spent a number of days in the intensive care unit and
was ultimately discharged from Covenant on April 30th. Roberta died at home in her sleep at
home five days later on May 5th. The May 6, 2010 autopsy indicates that “Roberta Holcomb
died of congestive heart failure and peritonitis.[1] She had recent surgery for gallbladder with
subsequent peritonitis and wound infection. There are no other diseases contributing to her
death. The manner of death is natural.”

         Plaintiff sued a number of individuals and institutions.2 For purposes of this appeal, the
only party that matters is defendant. It was plaintiff’s theory that defendant was negligent in
discharging Roberta from Caro, given her symptoms and recent surgery. Plaintiff contended
that, at a minimum, defendant should have called Roberta’s surgeon and discussed her condition.
Plaintiff also believed that defendant should have transferred Roberta to Covenant hospital for
further treatment and observation since Caro did not have a surgeon on staff at the emergency
room. Plaintiff further maintained that defendant was negligent in failing to immediately
administer prophylactic antibiotics and that this delay in administering antibiotics resulted in
post-surgical complications that could have been avoided.

        Defendant moved for summary disposition, arguing that his actions were not the cause of
Roberta’s injuries. Defendant noted that plaintiff did not take issue with Richardson’s “wait and
see” approach at Covenant, but then blamed defendant for failing to refer Roberta to a surgeon
sooner. Defendant argued that if Richardson’s conservative approach was acceptable, it follows
that defendant’s actions were unlikely to have changed the result. Plaintiff responded that
defendant dismissed a constellation of Roberta’s symptoms for a perforation, including Roberta’s
significant pain, pus around the wound, and the presence of “free air” on x-rays. Plaintiff argued
that “but for” defendant’s negligence, Roberta would have been seen and attended to at a time
when she would have been able to recover. While the trial court granted summary disposition on
a number of small issues, it found that there was a genuine issue of material fact whether
defendant breached the standard of care by failing to immediately contact Roberta’s surgeon,


1
 Peritonitis is the inflammation of the peritoneum – the tissue that lines the inner abdominal wall
– due to bacterial or fungal infection.
2
  Those sued included both hospitals as well as the two radiologists that read her Caro CAT
scans. Dr. Hodge provided the initial radiology report and worked off-sight. Dr. Lum, who
worked at Caro, provided the later, more comprehensive report.


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discharging Roberta rather than transferring her to Covenant, failing to administer antibiotics,
and failing to properly make a differential diagnosis of a bowel perforation.

       The matter proceeded to trial where each side presented numerous experts who offered
opinions on the standard of care of an emergency room physician, as well as a history of
Roberta’s particular condition and treatment. After less than two hours of deliberation, the jury
found that defendant was professionally negligent in one or more ways claimed by plaintiff, but
that Roberta was not injured as a result of defendant’s negligence. The trial court entered a “no
cause of action” order.

        Thereafter, plaintiff filed a motion for judgment notwithstanding the verdict (JNOV) and
new trial, arguing that the jury’s verdict was not only inconsistent and illogical but against the
great weight of the evidence. Plaintiff alleged that defendant’s actions resulted in the delay in
diagnosing Roberta, which caused the sepsis. Plaintiff pointed to the undisputed autopsy report,
which indicated that Roberta died due to the effect that being septic had on her heart. The trial
court denied plaintiff’s motion and it now appeals as of right, citing the same reasons for reversal
as in the motion for new trial.

                                 II. STANDARD OF REVIEW

        Pursuant to MCR 2.611(A)(1)(a) and (e), a new trial may be granted based on an
“irregularity in the proceeding” or if the verdict was “against the great weight of the evidence or
contrary to law.” A trial court’s decision on a motion for new trial is reviewed for an abuse of
discretion. Zaremba Equip, Inc v Harco Nat Ins Co, 302 Mich App 7, 21; 837 NW2d 686
(2013). “An abuse of discretion occurs when the decision results in an outcome falling outside
the range of principled outcomes.” Id.

       This Court may overturn a jury verdict that is against the great weight of the
       evidence. But a jury’s verdict should not be set aside if there is competent
       evidence to support it. Determining whether a verdict is against the great weight
       of the evidence requires review of the whole body of proofs. The issue usually
       involves matters of credibility or circumstantial evidence, but if there is
       conflicting evidence, the question of credibility ordinarily should be left for the
       fact-finder. Similarly, the weight to be given to expert testimony is for the jury to
       decide. [Dawe v Bar-Levav & Assoc (On Remand), 289 Mich App 380, 401; 808
       NW2d 240 (2010) (footnotes omitted).]

        “A motion to set aside or otherwise nullify a verdict or a motion for a new trial is deemed
to include a motion for judgment notwithstanding the verdict as an alternative.” MCR
2.610(A)(3). “We review de novo a trial court’s ruling on a motion for JNOV.” Zaremba, 302
Mich App at 15. In reviewing a motion for JNOV, an appellate court reviews the evidence and
all legitimate inferences in a light most favorable to the nonmoving party. Sniecinski v Blue
Cross & Blue Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). “A motion for
directed verdict or JNOV should be granted only if the evidence viewed in this light fails to
establish a claim as a matter of law.” Id. “When the evidence presented could lead reasonable
jurors to disagree, the trial court may not substitute its judgment for that of the jury.” Foreman v
Foreman, 266 Mich App 132, 136; 701 NW2d 167 (2005).

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                                         III. ANALYSIS3

       At the close of proofs, the trial court instructed the jury:

              Your verdict will be for the plaintiff if the defendant was negligent and
       such negligence was a proximate cause of the plaintiff’s injuries and if there were
       damages.

               Your verdict will be for the defendant if the defendant was not
       professionally negligent or did not prac – excuse me. Did not commit malpractice
       or if the defendant was professionally negligent or did commit malpractice but
       such professional negligence or malpractice was not a proximate cause of the
       plaintiff’s injuries or damages or if the plaintiff was not injured or damaged.

The verdict form provided:




        Plaintiff argues that, having answered Question #1 in the affirmative, “there was no
reasonable evidentiary basis that would account for the jury’s answer to question number two
(2).” In so doing, plaintiff glosses over causation.

              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


3
  Plaintiff’s 12-page appellate brief does not accurately reflect the extent and complexity of the
6-day trial. It is woefully lacking in facts and analysis. In addition, plaintiff has failed to supply
the transcripts related to the motion for new trial. We will nevertheless attempt to address
plaintiff’s arguments.


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       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 Oakwoood 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, Roberta 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.

        At trial, plaintiff alleged that defendant was negligent in a variety of ways: (1) failing to
immediately call Roberta’s surgeon; (2) failing to transfer Roberta directly to Covenant; (3)
failing to administer antibiotics; and, (4) failing to make a proper differential diagnosis of bowel
perforation; and, (5) discharging Roberta. In answering Question #2 in the negative, the jury
clearly determined that Roberta’s injury was not the result of defendant’s malpractice “in one or
more of the ways claimed by Plaintiff.”

        The jury’s determination that defendant acted below the standard of care in one or more
ways plaintiff alleged did not compel a finding that Roberta’s injury was the result of
defendant’s negligence. This is especially true in light of Richardson’s testimony that he would
not have done anything differently had Roberta presented to Covenant sooner. Her symptoms
when she arrived at Covenant did not cause Richardson to believe that Roberta was suffering
from a bowel perforation. Roberta was not feverish and had normal vital signs. There was no
evidence of rebounding or guarding. Like defendant, Richardson believed that the presence of
free air in Roberta’s x-rays was the result of her surgery two days prior. In fact, plaintiff’s
experts did not take issue with Richardson’s “wait and see” approach. It was only after
Roberta’s condition worsened that Richardson took her into surgery. Under these circumstances,
the jury was justified in determining that defendant’s conduct was not the cause of Roberta’s
injuries. As in Allard v State Farm Ins Co, 271 Mich App 394, 407–408; 722 NW2d 268 (2006),
while the parties and the trial court “both believed that Question No. 3 was the proper causation
question, the trial court correctly determined that the jury found a lack of causation in Question
No. 2.” There was nothing inconsistent about the jury’s verdict.

        To the extent plaintiff argues that the jury simply got it wrong and should have rendered a
verdict for plaintiff, there was ample competent evidence to support the jury’s verdict. Although
plaintiffs’ experts testified that Roberta’s outcome would have been different had defendant
administered antibiotics sooner, defendant’s experts disagreed. “The weight given to the
testimony of experts is for the jury to decide, and it is the province of the jury to decide which
expert to believe.” Guerrero v Smith, 280 Mich App 647, 669; 761 NW2d 723 (2008) (quotation
marks omitted).

        Plaintiff goes on to argue that the trial court erred in permitting defendant to raise
alternative theories of cause of death, in contravention of MRE 803(9) and MCL 326.16
regarding Roberta’s cause of death.

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        Just as defendant was prepared to call his first witness on the fourth day of trial, plaintiff
filed a motion in limine to prevent defendant’s experts from offering an opinion on Roberta’s
cause of death. Plaintiff’s counsel argued that Roberta’s death certificate was prima facie
evidence of the facts contained therein. Defense counsel and the trial court noted that while the
death certificate may have been the best evidence, it did not preclude defendant from presenting
competing evidence as to Roberta’s cause of death. In denying plaintiff’s motion, the trial court
noted that the issue was not one of admissibility but of weight. At trial, defendant’s general
surgery expert, James McQuiston, took issue with the pathologist’s report regarding the cause of
Roberta’s death:

       [I]n looking at the pathologist’s report, the pathologist used a clinical diagnosis
       she died of complications related to the bowel perforation from the gallbladder.
       But in terms of the actual cause of why she passed way, I – no, and I don’t think
       we’ll ever know, I mean.

                                                 ***

       It’s a clinical diagnosis that was given, not a pathologic, which means that – that
       it’s based on the fact that we – we – the pathologist didn’t in my opinion make a
       determination of what the actual cause of her death was. I mean she didn’t –
       didn’t say that . . .there was overwhelming sepsis, didn’t say that she had a heart
       attack, didn’t say that she had a stroke. Just kind of a very – I hate to say it –
       generic that it happened because of this. But we don’t know. I mean she was
       discharged on the – on the 30th with the expectation that she was gonna get better
       and five days later she died.

         MRE 803(9) provides that “Records or data compilations, in any form, of births, fetal
deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to
requirements of law” is not excluded under the hearsay rule. MCL 326.16 has been repealed, but
its replacement – MCL 333.2886 – provides:

       A certified copy of a vital record, or any part thereof, or a certificate of
       registration issued in accordance with sections 2881 and 28821 is considered for
       all purposes the same as the original and is prima facie evidence of the facts[4]
       stated in the original.




4
  Although cause of death is generally considered an “opinion” as opposed to a “fact,” this Court
has interpreted cause of death to be the type of “fact” referred to in the statute. “If we were to
require that a statement in a death certificate be a “fact” in the sense of an absolute objective
reality, virtually nothing in a death certificate would be admissible.” Greek v Bassett, 112 Mich
App 556, 562; 316 NW2d 489 (1982).




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        Defendant was permitted to rebut the presumption that the death certificate contained a
presumption regarding Roberta’s death. “[T]he facts contained in a death certificate are merely
prima facie evidence that may be rebutted by contrary evidence.” Kowalski v Iron Workers
Local No 25 Pension Fund, No. 07-11014, 2008 WL 375208, at *3 (ED Mich February 12,
2008). “Prima facie evidence is evidence which, if not rebutted, is sufficient by itself to establish
the truth of a legal conclusion asserted by a party.” American Cas Co v Costello, 174 Mich App
1, 7; 435 NW2d 760 (1989). Thus, while the certified cause of death was presumptively correct,
it was only prima facie evidence and could be rebutted.

       Affirmed. Defendant may tax costs, having prevailed in full. MCR 7.219.

                                                              /s/ Mark T. Boonstra
                                                              /s/ Mark J. Cavanagh
                                                              /s/ Kirsten Frank Kelly




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