Michigan Appeals Court Upholds Ruling for Defendants Following Botched Surgery

The Michigan Court of Appeals recently affirmed the jury’s verdict that a defendant doctor was not professionally negligent in a medical malpractice action.Plaintiffs Irwin H. Estrine, D.O., and his wife, Seema Estrine, alleged that defendant Dr. Singer committed malpractice related to Irwin’s spinal surgery. Dr. Singer performed a tubular dilation microdiscectomy on Irwin in April 2010. Immediately following the surgery, Irwin began experiencing intense pain. He alleged that his complaints of pain continued for several days and that Dr. Singer ultimately ordered an MRI late on the third day.

The MRI revealed an extensive epidural hematoma with cord compression, along with an extruded herniated disk that was compressing a nerve root. Dr. Singer performed a second surgery on the following day to evacuate the hematoma. The plaintiff continued to experience severe pain in his lower extremities after he was discharged from his second surgery, and he required additional surgeries by another physician in November 2010 and January 2012. As a result, the plaintiffs alleged that Dr. Singer committed medical malpractice by using an improper technique during the original surgery and by failing to properly recognize and treat the plaintiff’s post-surgical symptoms. Seema Estrine also asserted a claim for financial losses related to her care of the plaintiff and a loss of consortium claim.

Prior to trial, Dr. Singer filed a motion in limine to preclude the admission of evidence and testimony regarding billing and record errors. He argued that the plaintiff’s Medicare Explanation of Benefits contained a number of errors, and the billing errors were irrelevant with regard to whether his performance was negligent. The plaintiff also filed a motion in limine to preclude the admission of evidence concerning his prior abuse of opioid medication, arguing that evidence of his prior opioid use was irrelevant to the medical malpractice allegations in this case.

The trial court granted in part and denied in part Dr. Singer’s motion to exclude evidence of billing errors, allowing the evidence to be admitted under MRE 608-only as it related to Dr. Singer’s truthfulness-if he introduced evidence that his records were accurate. Additionally, the trial court denied the plaintiffs’ motion to exclude evidence of Dr. Estrine’s past opioid abuse, adopting the arguments raised by the defendants and also noting that evidence regarding the plaintiff’s opioid use was relevant to the plaintiff’s credibility, which “always may be attacked.”

On the first day of trial, the plaintiffs filed a motion to voluntarily dismiss Seema’s claims. The court denied the motion. Following an eight-day trial, the jury found that Dr. Singer was not professionally negligent in his treatment of the plaintiff.

On appeal, the plaintiff first argued that the trial court erred by concluding that evidence related to his past use of opioid medication was admissible. The Michigan Court of Appeals rejected this argument because, as the trial court noted, evidence related to the plaintiff’s opioid use was admissible for its relevance to the plaintiff’s credibility, to the defendants’ claims concerning the plaintiff’s comparative negligence, and to the defendants’ refutation of the plaintiff’s claim of injury based on the excruciating pain that he experienced due to Dr. Singer’s alleged negligence. Thus, the trial court properly admitted this evidence.

Next, the plaintiffs argued that the trial court abused its discretion by precluding the admission, for impeachment purposes, of evidence that Dr. Singer billed Medicare for a surgical procedure that he did not perform. The appeals court agreed with the trial court that a billing error was not relevant to the plaintiffs’ remaining claims at trial. Contrary to the plaintiffs’ arguments, the presence or absence of a billing error did not make it more or less probable that Dr. Singer committed medical malpractice during the surgeries and treatment at issue in this case. Moreover, a witness cannot be impeached on a collateral matter. A billing error was a collateral matter because it was not related to the claim at issue at trial. Furthermore, extrinsic evidence cannot be used to prove a specific incident of conduct for the purpose of attacking the credibility of a witness. Thus, the trial court’s exclusion of extrinsic evidence on this issue was not in error.

Finally, the plaintiffs argued that the trial court abused its discretion when it denied their motion to voluntarily dismiss Seema’s claims on the first day of trial. The appeals court held that the trial court’s ruling was not an abuse of discretion. The plaintiffs’ motion was not filed until April 20, 2015, the first day of trial, even though the specific basis for the plaintiffs’ motion was the fact that Seema stated at a deposition on September 20, 2013, that her marriage had not been harmed as a result of the allegedly negligent surgery. Accordingly, it was clear that the plaintiffs had been aware for more than a year that Seema would not prevail at trial, yet they continued to pursue her claims until the time at which the defendants’ trial preparations were complete. Thus, the court concluded that the defendants would have faced prejudice, given the plaintiffs’ delay and lack of due diligence, had the trial court granted the plaintiffs’ motion to voluntarily dismiss the claims at that point in the proceedings.

For these reasons, the appeals court affirmed the lower court’s holding.

The medical malpractice attorneys at the Neumann Law Group represent injured people throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.

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Michigan Appellate Court Holds Trial Court Improperly Analyzed GTLA, Neumann Law Group, December 1, 2016.

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