Estate of Bimla Nayyar v. Oakwood Healthcare Inc

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

ESTATE OF BIMLA NAYYAR, by RAKESH UNPUBLISHED
NAYYAR, Personal Representative, May 14, 2020

Plaintiff-Appellee,

v No. 343676
Wayne Circuit Court
OAKWOOD HEALTHCARE, INC., doing LC No. 13-009819-NH
business as OAKWOOD HOSPITAL &
MEDICAL CENTER,

Defendant-Appellant.

Before: METER, P.J., and O’BRIEN and SWARTZLE, JJ.

PER CURIAM.

The decedent in this case, Bimla Nayya, suffered unnecessary brain surgery and died weeks
later. Defendant hospital admitted breaching the standard of care, but following various procedural
and substantive turns in the lawsuit below, a prior panel of this Court ordered the trial court to
enter judgment in favor of defendant. Plaintiff sought review of this order with our Supreme Court,
but that Court declined leave and the matter was remanded to the trial court to enter judgment in
defendant’s favor. On remand, the trial court granted judgment in defendant’s favor, but then
immediately granted plaintiff relief from that judgment under MCR 2.612(C). Defendant now
appeals.

After reviewing the record and applicable case law, it is evident that the trial court exceeded
its limited authority on remand when it granted relief to plaintiff. Moreover, under the law-of-the-
case doctrine, this panel is likewise bound by the prior panel’s order and cannot provide
independent relief to plaintiff. Accordingly, we affirm in part and reverse in part and remand for
proceedings consistent with this opinion.

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 I. BACKGROUND

This dispute has an extensive, protracted history. Given the issues raised in the current
appeal, a detailed review of this history is appropriate.

Unnecessary Surgery and Subsequent Death of Bimla Nayyar. In 2011, Bimla Nayyar was
an 81-year old wife and mother. During the latter part of the year, Bimla had been in a
rehabilitation clinic related to some health issues. Bimla had a dislocated jaw, and in January
2012, she was transferred for treatment to the facility operated by defendant Oakwood Healthcare,
Inc., d/b/a Oakwood Hospital & Medical Center. Tragically, someone at Oakwood Hospital
mislabeled Bimla’s radiology scan and, as a result, she underwent an unnecessary craniotomy, i.e.,
brain surgery, on January 9, 2012. After weeks of medical complications and immense suffering,
Bimla passed away on March 11, 2012.

Initial Lawsuit Dismissed With Prejudice. After Bimla’s death, her estate, represented by
her son Rakesh Nayyar, sued Oakwood Hospital and several individuals. To avoid confusion, the
initial lawsuit filed in Wayne County Circuit Court (Docket No. 12-013694-NO) will be referred
to as the “first lawsuit,” and the estate will be referred to as “plaintiff” throughout this opinion.

In the first lawsuit, plaintiff alleged counts of ordinary negligence and vicarious liability
against Oakwood Hospital and a count of battery against Samer Elfallal, D.O., and Tejpaul Pannu,
M.D., for performing an unnecessary craniotomy on Bimla. The defendants moved for summary
disposition, and the trial court granted the motion. Counsel for the defendants drafted the proposed
order, and the draft order made clear that dismissal of the ordinary-negligence claim would be
“with prejudice.” Plaintiff’s counsel asked that language be added to make clear that plaintiff
could refile a similar complaint for medical malpractice, and the defendants’ counsel agreed. The
resulting language, stipulated as to form by plaintiff’s counsel and signed by the trial court, stated
in relevant part:

IT IS HEREBY ORDERED that Defendants’ Motion for Summary
Disposition is GRANTED, that Plaintiff’s claims of ordinary negligence contained
in Count I and battery contained in Count III are dismissed with prejudice, and that
the above cause is hereby dismissed in its entirety for the reasons stated on the
record.

IT IS FURTHER ORDERED that entry of this order shall not preclude
Plaintiff from bringing a medical malpractice claim. [Order entered Feb. 19, 2013,
Docket No. 12-013694-NO.]

Relevant to this appeal, the following are matters evident from the record in the first lawsuit: (1)
the trial court dismissed plaintiff’s ordinary-negligence claim with prejudice; (2) plaintiff’s
counsel negotiated the right to refile a lawsuit for medical malpractice; and (3) the trial court
expressly preserved in its order plaintiff’s right to refile a lawsuit claiming medical malpractice.
Plaintiff did not move for reconsideration or appeal the dismissal order.

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 Second (Current) Lawsuit. On July 26, 2013, plaintiff refiled its complaint in Wayne
County Circuit Court (Docket No. 13-009819-NH), this time naming only Oakwood Hospital as
defendant. This is the lawsuit to which the current appeal relates.

In this second (current) lawsuit, plaintiff alleged the same essential facts as in the first one,
and plaintiff set forth one count of “negligence” against the hospital. The allegations in the
complaint make clear that the negligence claim is one for medical malpractice. For example,
plaintiff alleged that Bimla “received the care and treatment constituting the malpractice” of
defendant and that defendant owed Bimla “a duty to maintain the standard of care and treatment
of its peers within the professional community of hospital administrations across the country.”
Plaintiff also attached two affidavits of merit in support of the complaint pursuant to MCL
600.2912d.

Discovery and Pretrial-Motion Practice. Discovery and pretrial-motion practice ensued
in this case for several years. Throughout this period, plaintiff consistently referred to the action
as a “medical malpractice matter” or words to that effect. See, e.g., Plaintiff’s Response to
Defendant’s Motion for Second Adjournment of Scheduling Order Dates (filed on April 7, 2014);
Plaintiff’s Brief in Support of Response in Opposition to Defendant’s Motion in Limine to Partially
Preclude Plaintiff’s Expert Dr. Lander’s Testimony (filed on April 15, 2015).

As part of discovery, plaintiff served requests to admit on defendant, and, in response,
defendant admitted the following: “. . . Defendant admits that Defendant and/or Defendant’s
agents owed a duty to Bimla Nayyar to refrain from placing Bimla Nayyar’s name on a radiology
slide that belonged to another patient, and that Defendant and/or its agents failed to fulfill this duty.
Defendant further admits that Bimla Nayyar underwent an unnecessary craniotomy on January 9,
2012, as a result of this failure.” Defendant’s Answer to Plaintiff’s Request to Admit at pp 1-2
(dated July 25, 2014). Subsequently, defendant consistently acknowledged that it had breached
the appropriate standard of care and that the only two elements at issue for trial were causation and
damages. See, e.g., Defendant’s Motion in Limine (filed on April 10, 2015).

Although the parties had repeatedly characterized plaintiff’s claim as one for medical
malpractice, as the trial date grew near, the record shows that plaintiff began to resurrect the
ordinary-negligence claim dismissed in the first lawsuit. To illustrate, a couple of weeks prior to
trial, defendant moved to preclude plaintiff from asserting any new claim not included in the
complaint in this case. In response, plaintiff characterized this case as a “medical malpractice
action,” denied that the “claims of malpractice have not been pled with reasonable definiteness
and certainty,” and expressly denied that plaintiff had any intention “to assert any ‘new theories’
not already pled in [its] complaint.” Plaintiff’s Response in Opposition to Defendant’s Motion in
Limine to Preclude Plaintiff from Making Any New Claims at Trial Not Pled in the Complaint at
pp 1, 3-4 (filed on April 15, 2015).

But then, just a few days before trial, the record shows a material shift in plaintiff’s
approach to this case. On April 20, 2015, the trial court held a hearing on various pretrial motions
in limine. During the hearing, plaintiff’s counsel asserted, “Operating on the wrong patient is not
medical malpractice. Never has been. Never will be.” Hr at p 17. Then on April 24, 2015, the
parties submitted a proposed joint pretrial order. In the proposed order and consistent with the

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argument made during the prior motion hearing, plaintiff identified the issues of law that it believed
were pertinent to the trial, and it included in this list whether “any cap on damages [applied] in this
case (to be decided after trial).” Medical-malpractice claims are subject to certain statutory caps
on damages, while ordinary-negligence claims are not. See MCL 600.1483. The trial court entered
the order with this language on April 27, 2015.

Jury Trial and Various Trial Motions. On the same day that the trial court entered the final
pretrial order, the jury trial commenced. Prior to jury selection, the trial court and counsel for the
parties handled various preliminary matters. It was during this colloquy that plaintiff’s counsel
exclaimed on the record, “This isn’t a malpractice claim. No.” Tr I at p 27. Plaintiff’s counsel
argued that it was only after the close of proofs that the trial court should make a determination
whether this was a medical-malpractice claim or an ordinary-negligence claim. Id. at p 28.

Defendant’s counsel immediately asked for clarification, “Am I understanding [plaintiff’s
counsel] to say this is not a malpractice case, but an ordinary negligence case?” Plaintiff’s counsel
responded, “And I will make that -- that’s not only correct, but it’s going to -- and I’m going to
ask the Court to so find at the conclusion of this case because that’s what the statute says.” Id. at
p 32. Because the ordinary-negligence claim had already been dismissed “with prejudice” in the
first lawsuit, defendant’s counsel moved immediately to dismiss the current lawsuit based on
plaintiff’s counsel’s statement that he intended to go forward on an ordinary-negligence claim. Id.
at pp 32-33, 40, 47. The trial court denied the motion and, after reading defendant’s earlier
admission, it explained, “. . . the Court finds that the basis for the admission of liability was the
professional negligence which was set forth therein; however, there still has to be a supporting
evidence for the proximate cause. So we will litigate the issues of proximate cause.” Id. at p 50
(emphasis added).

A jury was then selected and instructed. The trial court described plaintiff’s claim as one
“involving wrongful death, medical malpractice” and characterized plaintiff’s burden as one
involving “professional negligence or malpractice” of the defendant. Id. at pp 130-132. Consistent
with defendant’s earlier admissions, the trial court instructed the jury that “the issues of negligence
have been admitted.” Id. at p 133. This effectively removed any question as to the appropriate
standard of care or breach, and the jury was instructed solely with respect to causation and damages
(as well as other standard instructions).

The question of ordinary negligence versus medical malpractice continued to play out over
the next several days of trial. Plaintiff’s counsel submitted a memorandum to the trial court
arguing that this case involved ordinary negligence. According to plaintiff’s counsel, “No court
could ever hold that operating on the wrong patient raises questions involving medical judgment.”
Memorandum to Court Regarding Application of Non-Economic Damages Cap After Jury Verdict
Only at p 3 (filed on April 27, 2015). Consistent with this memorandum, plaintiff’s counsel
subsequently filed a motion with both the trial court in the current lawsuit and the trial court in the
first lawsuit to, in the words of plaintiff’s counsel, “correct the obvious clerical error in the order
which indicated that there was a dismissal with merits, on the merits of this case which cannot be
under the law.” Tr IV at p 246. Plaintiff’s counsel further characterized the dismissal of the
ordinary-negligence claim with prejudice in the first lawsuit as a “trick” played by defendant’s
counsel. Tr V at p 4. In response, defendant’s counsel pointed out that (1) plaintiff’s counsel did

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not appeal the earlier dismissal, (2) plaintiff’s counsel had been involved in negotiating the
wording of the proposed order of dismissal, and (3) defendant’s counsel would have made different
strategic choices in the current lawsuit had this been an ordinary-negligence case from the outset.
Tr V at pp 15, 28.

On the fifth day of trial, the trial court in this lawsuit granted plaintiff’s motion to correct,
holding that the trial court in the first lawsuit must have made an error. The trial court held that
the prior dismissal order had to be corrected so that the dismissal of the ordinary-negligence claim
would be without prejudice. Tr V at pp 30-31. The trial court entered an order to this effect. Yet,
the very next day, the same trial court vacated its order and directed plaintiff to file the motion
with the trial court in the first lawsuit. In vacating its order, the trial court also ordered “sua sponte
that Plaintiff’s complaint is amended to include a claim of ordinary negligence.” Order entered
May 5, 2015, Docket No. 13-009819-NH. (For its part, the trial court in the first lawsuit
subsequently denied plaintiff’s motion, holding, “There has been no showing of any clerical error
or mistake.” Order entered May 7, 2015, Docket No. 12-013694-NO. Plaintiff’s attempts to
appeal this decision were unsuccessful.)

The legal wrangling over whether plaintiff had a viable ordinary-negligence claim played
out primarily outside the presence of the jury. In line with the trial court’s instructions at the outset
of the trial, the testimony presented to the jury focused on causation and damages. Plaintiff’s
counsel elicited testimony that, prior to the unnecessary brain surgery, Bimla had been in relatively
good health for a person of her age and medical history, while defendant’s counsel elicited
testimony to the contrary. There was testimony describing Bimla’s complications and suffering
after the surgery, omissions or misleading statements in the subsequent medical history that
arguably exacerbated her complications and suffering, and her family members’ pain and loss over
the passing of the family matriarch. This testimony had no particular bearing on whether defendant
breached a specific standard of care with respect to its treatment of Bimla.

With that said, plaintiff’s counsel did elicit testimony at trial on the standard of care and
breach. A review of the record confirms that this testimony was not voluminous, but it was
pointed. On multiple occasions, plaintiff’s counsel asked, and a medical witness answered, a
variant of the following: “Q. You don’t have to be a doctor to know you can’t operate on the
wrong patient to do brain surgery . . . do you? . . . A. I don’t think you need to be a doctor to
understand that you should not do brain surgery on a -- patient. I agree with you.” Tr III at p 85;
see also Tr IV at pp 59-60, 184-185; Tr V at pp 56, 84. Defendant’s counsel objected to this line
of questioning, arguing that the testimony raised issues involving the proper standard of care and
breach, but the trial court overruled the objection without explanation. Tr III at pp 84-86; see also
Tr IV at pp 59, 118, 185; Tr V at pp 56, 84; Tr VI at pp 12.

In fact, the reason for this testimony was made clear by plaintiff’s counsel, when he argued
to the trial court that this testimony confirmed that this was an ordinary-negligence case, not a
medical-malpractice one: “The defendant claims that they engaged the trickery, and they got Judge
Oxholm [the trial judge in the first lawsuit] to dismiss the negligence case with prejudice and so
the plaintiff can never, you can never make a determination. [Defendant’s counsel is] going to
make this argument that this case is not [sic] a medical malpractice case even though it’s obviously
not, even though every witness on the stand has testified this is what that’s that you don’t need to

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be a doctor to figure out that you don’t operate on the wrong patient.” Tr V at p 9. As noted,
plaintiff’s counsel asked a variant of this question multiple times, and each time the jury heard the
testimony in answer.

After the close of proofs on the sixth day of trial, the trial court instructed the jury on the
elements of causation and damages, but not the standard of care or breach. The jury found in favor
of plaintiff and awarded $300,000 in economic damages and $19.7 million in noneconomic
damages. The trial court entered judgment in plaintiff’s favor for the full, uncapped amount of the
award. Consistent with the position at trial, plaintiff maintained throughout the post-trial
proceedings before the trial court that this was an ordinary-negligence case. The trial court agreed,
as it declined to apply the statutory caps on damages for medical-malpractice awards.

Defendant subsequently moved for a new trial and for judgment notwithstanding the
verdict (JNOV). With respect to the JNOV motion, defendant argued that plaintiff admitted during
the trial that this was not a medical-malpractice case but, rather, an ordinary-negligence case. But,
as defendant pointed out, plaintiff’s ordinary-negligence claim had been dismissed with prejudice,
the dismissal had not been appealed, and the first trial court had held that there was no clerical
error or mistake with respect to the dismissal. Because plaintiff did not appear to have a viable
claim remaining—no medical-malpractice claim (abandoned) and no ordinary-negligence claim
(dismissed on merits)—defendant sought a JNOV. Plaintiff responded in relevant part, “Based on
the evidence adduced at trial, it became blatantly clear that Plaintiff’s claims against Defendant
sounded in ordinary negligence, and not medical malpractice (the hospital operated on the wrong
patient), and on May 5, 2015, this court entered an order allowing Plaintiff to pursue an ‘ordinary
negligence’ claim pursuant to MCR 2.118(C).” Plaintiff’s Response in Opposition to Defendant’s
Motion for Judgment Notwithstanding the Verdict at p 5.

The trial court denied the motion for JNOV, explaining from the bench, “At this juncture,
the Court sees no reason to undo the jury’s verdict. That has been submitted, and the Court will
continue to let the jury’s verdict stand.” Hr at p 13. It entered an order to this effect on August
18, 2015, and the trial court likewise denied the motion for a new trial in an order entered on
August 20, 2015.

Defendant’s First Appeal. On September 4, 2015, defendant filed an appeal as of right
with this Court. Relevant to the current appeal, defendant also moved the prior panel for
peremptory reversal, the thrust of which was that because the trial court in the first lawsuit had
dismissed the ordinary-negligence claim on the merits, and plaintiff had tried this action as an
ordinary-negligence case, his ordinary-negligence claim was barred as a matter of law, and
defendant ought to have been granted JNOV. Defendant argued that plaintiff was precluded by
the collateral-attack doctrine, as well as by collateral estoppel and res judicata, from securing a
judgment that thwarted the trial court’s order of dismissal in the first lawsuit.

In response to defendant’s motion and consistent with the proceedings below, plaintiff
argued that this was an ordinary-negligence case rather than a medical-malpractice case.
According to plaintiff, “It is true that the Estate is committed to the position that plaintiff’s claim
is one for ordinary negligence.” Plaintiff-Appellee’s Response in Opposition to Defendant-
Appellant’s Motion for Peremptory Reversal at p iii. Plaintiff further asserted, “Plaintiff was

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allowed to re-file and litigate his negligence claim, and the proofs adduced throughout litigation
established that the claim sounded in ordinary negligence, not medical malpractice.” Plaintiff-
Appellee’s Brief in Support of His Response in Opposition to Defendant-Appellant’s Motion for
Peremptory Reversal at p v.

The Court granted defendant’s motion for peremptory reversal. The order reversed the trial
court’s order denying defendant’s motion for JNOV, vacated the trial court’s judgment in favor of
plaintiff, and remanded with instructions for the trial court to enter an order granting defendant’s
motion for JNOV. Specifically, this Court’s order provided:

The Court orders that the motion for peremptory reversal pursuant to MCR
7.211(C)(4) is GRANTED. As we previously held in Estate of Nayyar v Oakwood
Healthcare, Inc, unpublished order of the Court of Appeals, entered June 4, 2015
(Docket No. 327506), the Wayne Circuit Court’s May 5, 2015 order amending the
complaint to include a claim of ordinary negligence constituted an impermissible
collateral attack on the February 19, 2013 order entered in WCCC No. 12-013694-
NO. People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995) (“a collateral
attack occurs whenever a challenge is made to a judgment in any manner other than
through a direct appeal.”). The latter order granted defendant’s motion for
summary disposition, dismissed plaintiff’s ordinary negligence claim with
prejudice, and expressly resolved the last pending claim in the matter. Plaintiff did
not appeal. The February 19, 2013 order therefore constituted a final ruling on the
merits and is immune from collateral attack. Leahy v Orion Twp, 269 Mich App
527, 530; 711 NW2d 438 (2006) (“a decision is final when all appeals have been
exhausted or when the time available for an appeal has passed”); Kosch v Kosch,
233 Mich App 346, 353; 592 NW2d 434 (1999) (“Defendant’s failure to file an
appeal from the original judgment . . . pursuant to MCR 7.205(A) or (F), precludes
a collateral attack on the merits of that decision.”). Further, because the same
parties fully litigated the viability of ordinary negligence in a prior proceeding and
the result of that proceeding would have bound either party, collateral estoppel
precludes plaintiff from asserting ordinary negligence now. Detroit v Qualls, 434
Mich 340, 357; 454 NW2d 374 (1990) (a ruling on summary disposition resolves a
matter on the merits for purposes of collateral estoppel); see also Monat v State
Farm Ins Co, 469 Mich 679, 691; 677 NW2d 843 (2004). Indeed, under the
February 19, 2013 order, only the alternate theory of medical malpractice remained
available to plaintiff against this defendant. See Bryant v Oakpointe Villa Nursing
Ctr, 471 Mich 411, 420-422; 684 NW2d 864 (2004) (explaining that although
arising out of a single occurrence, medical malpractice and ordinary negligence
present alternate theories of liability). Accordingly, where plaintiff unequivocally
proceeded in this action under an ordinary negligence theory and the jury awarded
damages under that theory, defendant was entitled to judgment notwithstanding the
verdict (JNOV).

The Wayne Circuit Court’s August 18, 2015 order denying defendant’s
motion for JNOV is REVERSED, the June 8, 2015 Judgment is VACATED and
the cause is remanded for entry of an order granting defendant’s motion for JNOV.

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 [Nayyar v Oakwood Healthcare Inc, unpublished order of the Court of Appeals,
entered July 15, 2016 (Docket No. 329135).]

The Court subsequently denied plaintiff’s motion for reconsideration, and our Supreme Court
denied plaintiff’s application for leave as well as a subsequent motion for reconsideration. Nayyar
v Oakwood Healthcare, Inc, 500 Mich 1032; 897 NW2d 183 (2017), recon den 501 Mich 972
(2018).

Remand to the Trial Court. On remand to the trial court, plaintiff moved the trial court to
enter the JNOV as directed by this Court, but then immediately grant relief from that JNOV under
MCR 2.612(C)(1)(a), (c) and (f). Plaintiff argued that this Court’s order of peremptory reversal
was grounded in “a complete falsity and mistake of fact as to how this case was tried, a mistake
fostered by Defendant Oakwood.”

Defendant filed a response, informing the trial court that it could not “overrule the Court
of Appeals,” and that it must act consistently with this Court’s order. Defendant also argued that
the trial court was bound by the law-of-the-case doctrine. For its part, defendant moved the trial
court to vacate its earlier judgment, vacate its order denying JNOV, and enter JNOV in defendant’s
favor consistent with this Court’s order.

The trial court held a hearing on both motions. At the conclusion of the hearing, the trial
court observed that that the jury trial did not decide issues of negligence, only causation and
damages. The trial court gave voice to its concern that the prior panel of this Court had operated
under a mistaken understanding of the facts when it ordered peremptory reversal, as well as the
trial court’s belief that there might have been misrepresentations of the record to this Court. In its
written order, the trial court stated that it was granting relief from judgment under MCR
2.612(C)(1)(a), (c) and (f):

(C) Grounds for Relief From Judgment.

(1) On motion and on just terms, the court may relieve a party or the legal
representative of a party from a final judgment, order, or proceeding on the
following grounds:

(a) Mistake, inadvertence, surprise, or excusable neglect.

(b) Newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under MCR 2.611(B).

(c) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of
an adverse party.

(d) The judgment is void.

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 (e) The judgment has been satisfied, released, or discharged; a prior
judgment on which it is based has been reversed or otherwise vacated; or it is no
longer equitable that the judgment should have prospective application.

(f) Any other reason justifying relief from the operation of the judgment.
[MCR 2.612 (emphasis added).]

Second (Current) Appeal. This Court subsequently granted defendant’s emergency
application for leave to appeal “limited to the issues raised in the application and supporting brief.”
Nayyar v Oakwood Healthcare, Inc, unpublished order of the Court of Appeals, entered June 21,
2018 (Docket No. 343676).

II. ANALYSIS

A. TRIAL COURT ACTED OUTSIDE ITS AUTHORITY ON REMAND

The core issue on appeal is the scope of the trial court’s authority to set aside the order of
JNOV that an earlier panel of this Court directed the trial court to enter. Whether the trial court
followed this Court’s directive on remand is a legal question that we review de novo. Lenawee Co
v Wagley, 301 Mich App 134, 149; 836 NW2d 193 (2013). Similarly, we review de novo whether
the law-of-the-case doctrine applies. Augustine v Allstate Ins Co, 292 Mich App 408, 424; 807
NW2d 77 (2011). “Interpreting the meaning of a court order involves questions of law that are
reviewed de novo.” Id. at 423. “Where the trial court misapprehends the law to be applied, an
abuse of discretion occurs.” Bynum v ESAB Group, Inc, 467 Mich 280, 283; 651 NW2d 383
(2002).
A trial court’s scope of authority on remand is well-settled in this state. In general, a trial
court can “take such action as law and justice may require so long as it is not inconsistent with the
judgment of the appellate court.” Glenn v TPI Petroleum, Inc, 305 Mich App 698, 703; 854 NW2d
509 (2014) (cleaned up). If, on the one hand, the remand order lacks instructions, then the trial
court “has the same power as if it made the ruling itself.” Id. (cleaned up). If, on the other hand,
the remand order provides instructions, then the trial court is bound by those instructions. As this
Court has put it, “It is the duty of the lower court or tribunal, on remand, to comply strictly with
the mandate of the appellate court.” Id. (emphasis added, cleaned up). Our Supreme Court
summed up a trial court’s authority this way: “The power of the lower court on remand is to take
such action as law and justice may require so long as it is not inconsistent with the judgment of
the appellate court.” Sokel v Nickoli, 356 Mich 460, 464; 97 NW2d 1 (1959).

The law-of-the-case doctrine is likewise well-settled in this state. As a general matter, “an
appellate court’s determination of an issue in a case binds lower tribunals on remand and the
appellate court in subsequent appeals.” Grievance Administrator v Lopatin, 462 Mich 235, 260;
612 NW2d 120 (2000); see also CAF Investment Co v Saginaw Twp, 410 Mich 428, 454; 302
NW2d 164 (1981). The doctrine will apply only “to questions actually decided in the prior
decision and to those necessary to the court’s prior determination.” Kalamazoo v Dep’t of
Corrections (After Remand), 229 Mich App 132, 135; 580 NW2d 475 (1998).

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 The law-of-the-case doctrine is similar to a court’s authority on remand, but it is more
expansive because it binds not only trial courts but also appellate courts in the same case. The
purposes underlying the doctrine are to ensure consistency and to impede the parties’ attempts to
have matters already decided during the course of a lawsuit reconsidered. Ingham Co v Mich Co
Rd Comm Self-Ins Pool (On Remand), ___ Mich App ___, ___; ____ NW2d ___ (2019) (Docket
No. 334077); slip op at 4; see also Locricchio v Evening News Ass’n, 438 Mich 84, 109; 476 NW2d
112 (1991) (explaining that the doctrine promotes efficiency, comity, and finality in the law).

The Trial Court Went Beyond Its Limited Authority on Remand. With respect to the trial
court’s order granting plaintiff relief from the JNOV, the trial court premised its ruling on its belief
that the prior panel made a mistake in concluding that the jury trial involved a question of ordinary
negligence. This ruling by the trial court and its underlying finding were outside of that court’s
scope of authority on remand. The prior panel made two findings that were key to its peremptory
order: (1) “plaintiff unequivocally proceeded in this action under an ordinary negligence theory”;
and (2) “the jury awarded damages under that theory.” Regardless of whether the trial court
believed that the prior panel made a mistake with either finding, as a lower court in our hierarchical
judicial system, the trial court did not have the authority to, in effect, overrule a higher court.
Decades, if not centuries, of case law counsel against this. Furthermore, the prior panel’s order
gave clear, specific instructions for the trial court to follow on remand, and the trial court did not
have the authority to take action inconsistent with those instructions, which the trial court did by
granting relief that subverted the prior panel’s instructed relief. See Bennett v Bennett, 197 Mich
App 497, 501-502; 496 NW2d 353 (1992) (“Where a litigant believes that this Court erred, the
appropriate remedy is to seek either rehearing in this Court or leave to appeal to the Supreme
Court, not to return to the trial court and argue that the Court of Appeals decision was erroneous
and, therefore, should not be followed.”).

Nor can a trial court use MCR 2.612 as a means for expanding its limited authority on
remand, especially when the law-of-the-case doctrine squarely applies. This Court had occasion
to review a similar circumstance in Sumner v General Motors Corp (On Remand), 245 Mich App
653; 633 NW2d 1 (2001). In that case, the trial court ordered relief on remand under MCR
2.612(C)(1)(e), which allows for relief from judgment under circumstances in which “[t]he
judgment has been satisfied, released, or discharged; a prior judgment on which it is based has
been reversed or otherwise vacated; or it is no longer equitable that the judgment should have
prospective application.” This Court reversed, explaining that a trial court’s authority to grant
relief from judgment is “limited to granting relief from its own judgment; it cannot grant relief
from a judgment of this Court.” Id. at 666.

In the present case, the trial court’s decision to grant relief from judgment under MCR
2.612(C)(1) amounted to an abuse of discretion because in granting the relief, the trial court took
action that was inconsistent with and undermined this Court’s order instructing the trial court to
enter judgment in defendant’s favor. The law in Michigan is clear that on remand the trial court’s
authority is limited, and it must act in conformance with this Court’s instructions. Glenn, 305
Mich App at 703; see also Augustine, 292 Mich App at 425 (“The trial court is bound to strictly
comply with the law of the case, as established by this Court, according to its true intent and
meaning.” (Cleaned up)). The court rule gives a trial court authority to correct its own mistake; it
does not give that court authority to correct the perceived mistake of an appellate court.

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 If a trial court on remand firmly believes that a mistake has been made by an appellate
court, it is not without recourse. A trial court can, for instance, issue a written opinion as part of
its order or judgment, expressing its doubts or concerns about an earlier ruling by an appellate
court. It can explain, with quotations and citations to the record, why it believes an earlier ruling
by an appellate court was in error. If a party has committed fraud on the court during the prior
proceeding, then the trial court can explain how this fraud was committed and why it undermines
justice in this case. This type of written opinion—following the appellate court’s instructions but
explaining its misgivings in doing so—could be strong ammunition for a party to have in hand for
another appeal, even if it falls short of a judgment in that party’s favor.
As explained, the trial court erred on remand by exercising authority it did not have.
Neither constitutional provision, statute, precedent, nor court rule permitted the trial court to set
aside the relief ordered by a prior panel of this Court. In doing so, the trial court abused its
discretion.

B. THIS PANEL IS BOUND BY LAW OF THE CASE

And yet, regardless of whether the trial court abused its discretion, the case now sits
squarely before this Court on appeal. Plaintiff argues that we are not bound to follow the prior
panel’s order because, as plaintiff argued before the trial court, that order violated due process.
Moreover, plaintiff maintains that the order was premised on mistakes that, if left uncorrected,
would preserve an unjust result. Accordingly, we turn to consider the scope of our authority on
remand with respect to the prior panel’s order.

Courts of this state have often characterized the law-of-the-case doctrine as a discretionary
rule, rather than a strict limitation on an appellate court’s authority. See, e.g., Schumacher v Dep’t
of Natural Resources, 275 Mich App 121, 128; 737 NW2d 782 (2007). With that said, direction
provided by our Supreme Court as to the nature of this “discretion” has been, at times, confusing.
For example, in Johnson v White, 430 Mich 47, 52; 420 NW2d 87 (1988), our Supreme Court held
that this Court had exceeded its “jurisdiction on remand” by reaching an issue previously decided
by a panel in the first appeal. The reasons for the law-of-the-case doctrine, according to the
Supreme Court, are “the need for finality of judgment and the want of jurisdiction in an appellate
court to modify its own judgments except on a rehearing.” Id. at 53 (emphasis added). The “want
of jurisdiction” on remand as described in Johnson is difficult to square with the descriptions of
discretion that an appellate court is said to retain under the doctrine. Other decisions of our
Supreme Court and this Court have characterized the discretion to be narrowly circumscribed.
See, e.g., CAF, 410 Mich at 454-455; Duncan v Michigan, 300 Mich App 176, 188-189; 832
NW2d 761 (2013).

Therefore, as we read our state’s case law, we have a “mandatory obligation” to adhere to
the law-of-the-case doctrine except in several well-defined, limited circumstances. Duncan, 300
Mich App at 189. The doctrine is not binding, for instance, when there has been a material change
in the facts on remand or an intervening change in the law. Id. Similarly, if there is a significant
competing interest at stake, such as a constitutional right, then the doctrine is not mandatory. See,
e.g., Locricchio, 438 Mich at 109-110 (stating that in a libel case in which “constitutionally
protected public discourse” was at issue, a second review by a subsequent panel should not have

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been precluded by the law-of-the-case doctrine); see also In re Forfeiture of $19,250, 209 Mich
App 20, 30; 530 NW2d 759 (1995) (explaining that the doctrine does not apply to a decision
obtained by fraud).

None of these exceptions apply here. Plaintiff does not argue that there has been a material
change in the facts or an intervening change in the law, and review of the record confirms that
defendant did not commit fraud in the first appeal. Plaintiff does argue that there was a due-process
violation with respect to the prior appeal, but the argument lacks merit. Broadly speaking, due
process requires notice and a meaningful opportunity to be heard. See Bonner v Brighton, 495
Mich 209, 235; 848 NW2d 380 (2014). Plaintiff asserts that the prior panel’s peremptory-reversal
order was based on false representations about the record. But, plaintiff had sufficient notice of
the representations and several opportunities to be heard on them (e.g., response to motion for
peremptory reversal; motion for reconsideration; application for leave to our Supreme Court).
Similarly, plaintiff has not provided any authority indicating that our court rules with respect to
motions or applications for leave violate due process, and our research did not reveal such
authority. As for substantive due process, plaintiff has failed to show how an appellate court’s
reversal of a trial court’s judgment somehow violates due process—plaintiff’s position would
effectively undo any appellate review of any judgment. Accordingly, there is no indication that
plaintiff was deprived of due process in the prior appeal.

C. NO EXCEPTION FOR MISTAKE BY PRIOR PANEL

Apart from its due-process arguments, plaintiff also argues that the prior panel’s decision
was mistaken and letting the decision stand would be unjust. Some jurisdictions do recognize a
clear mistake resulting in manifest injustice as an exception to the doctrine. See generally 13B
Wright, Miller, & Cooper, Federal Practice & Procedure § 4478, pp 670-691 (collecting cases).
In those jurisdictions that recognize this exception, there appears to be quite a high bar for relief.
As the Fifth Circuit described the matter, “Only in extraordinary circumstances may this court
sustain a departure from the law of the case doctrine on the ground that a prior decision was clearly
erroneous. Mere doubts or disagreement about the wisdom of a prior decision will not suffice. To
be clearly erroneous, a decision must strike us as more than just maybe or probably wrong; it must
be dead wrong.” City Pub Serv Bd v General Elec Co, 935 F2d 78, 82-83 (CA 5, 1991) (cleaned
up). Moreover, even if a prior decision was “dead wrong,” these jurisdictions also recognize that
more than mere error is required for relief—the failure to correct the mistaken decision must lead
to “manifest injustice.” See FPP § 4478, at p 686.

On the one hand, a case can be made that the prior panel erred. As noted earlier, there were
two findings that grounded the prior panel’s decision: (1) “plaintiff unequivocally proceeded in
this action under an ordinary negligence theory”; and (2) “the jury awarded damages under that
theory.” On the first ground, after the original ordinary-negligence case was dismissed on the
merits in the first lawsuit, plaintiff filed the current (second) lawsuit. From its inception until a
few days before trial, the current (second) lawsuit was unequivocally litigated under a medical-
malpractice theory, both by plaintiff and defendant. This is evidenced throughout many of the
pretrial briefs and notices filed by the parties. On the second ground, plaintiff correctly points out
that the legal wrangling about ordinary negligence versus medical malpractice occurred outside of
the jury’s presence. Defendant had admitted a breach of the standard of care prior to trial, so trial

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testimony focused on causation and damages, neither of which depended to any material extent on
whether this was a medical-malpractice or ordinary-negligence case. See O’Neal v St John Hosp
& Med Ctr, 487 Mich 485, 496-497; 791 NW2d 853 (2010). The jury was instructed on causation
and damages, and it was not instructed on the standard of care, breach, or caps on damages. As
countless decisions of this Court and our Supreme Court recognize, a jury is presumed to follow
its instructions. See, e.g., People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).

On the other hand, a case can be made that the prior panel did not err. Although the case
started out as a medical-malpractice action, beginning a few days before trial and lasting through
post-trial motions before the trial court and this Court, plaintiff pivoted and unequivocally
proceeded to litigate this case under an ordinary-negligence theory. Once it made this decisive
pivot, plaintiff consistently maintained that this was not a medical-malpractice case, but rather one
sounding in ordinary negligence.

Moreover, while the focus of the trial was on causation and damages, the trial court did
permit plaintiff’s counsel repeatedly to ask various medical witnesses a variation of the question,
“You don’t need to be a doctor to know that you shouldn’t perform brain surgery on the wrong
patient, right?” The answers to this question had no relevance to causation or damages. Rather,
the only relevance that the answers could have had was to the standard of care and breach. By
repeatedly asking the question and eliciting testimony in response, plaintiff’s counsel interjected
the ordinary-negligence theory into the jury trial. The trial court overruled defendant’s counsel’s
objections at trial, and by doing so, the trial court allowed this irrelevant testimony to be considered
by the jury. And, given its earlier admissions, defendant’s counsel had little opportunity to rebut
this irrelevant testimony with counter-proofs. Thus, even though the jury was not instructed on
the appropriate standard of care or breach, it did receive significant, irrelevant one-sided testimony
on those elements. The impact of this striking testimony alone might have been sufficient to taint
the jury.

Given binding precedent, however, we need not definitively resolve whether the prior panel
erred. Case law in this jurisdiction is clear that the law-of-the-case doctrine applies regardless of
the correctness of the prior determination. Unlike several other jurisdictions, our Supreme Court
has not recognized an exception to the law-of-the-case doctrine for a mistake by a prior panel,
regardless of manifest injustice. See Johnson, 430 Mich at 55 (declining to adopt the exception).
Indeed, it appears that our Supreme Court rejected this exception long ago: “There are exceptions,
as when a prior decision is erroneous, recognized in some of the states; but the weight of authority
and of reason is in support of the rule that a prior decision is conclusive of the same question on a
subsequent appeal; is the law of the case.” Gourlay v Insurance Co of North America, 189 Mich
384, 386; 155 NW 483 (1915); see also Damon v De Bar, 94 Mich 594, 595; 54 NW 300 (1893)
(same). Panels of this Court have often noted that our jurisprudence does not recognize this
exception: “Thus, a question of law decided by an appellate court will not be decided differently
on remand or in a subsequent appeal in the same case. This rule applies without regard to the
correctness of the prior determination.” Augustine, 292 Mich App at 425 (cleaned up); see also
Grace v Grace, 253 Mich App 357, 363; 655 NW2d 595 (2002) (same); Sumner, 245 Mich App
at 662 (same); Driver v Hanley (After Remand), 226 Mich App 558, 565; 575 NW2d 31 (1997)
(same); Reeves v Cincinnati, Inc (After Remand), 208 Mich App 556, 559; 528 NW2d 787 (1995)
(same). The only possible exception to this rule appears to be in the criminal context. See People

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v Phillips (After Second Remand), 227 Mich App 28, 33-34; 575 NW2d 784 (1997); cf People v
Herrera (On Remand), 204 Mich App 333, 340; 514 NW2d 543 (1994) (noting that a trial court
retains authority to grant a new trial in a criminal case when justice requires). As this is a civil
matter, plaintiff is without recourse under our current precedent—the correctness of a prior panel’s
decision is not subject to review under our law-of-the-case doctrine.

Accordingly, plaintiff does not satisfy any of the exceptions from application of the law-
of-the-case doctrine recognized in this jurisdiction. Applying the doctrine here, the prior panel’s
order is binding on us and, as a result, we cannot order relief inconsistent with that order.

With that said, we urge our Supreme Court to revisit whether, under the law-of-the-case
doctrine, a panel has the authority to correct a clear error by a prior panel so as to avoid manifest
injustice in a civil matter. Our case law that prohibits such correction appears at odds with other
case law, here and elsewhere, that describes the doctrine as “a matter of discretion.” FPP § 4478,
at p 637; see also Arizona v California, 460 US 605, 618; 103 S Ct 1382; 75 L Ed 2d 318 (“Law
of the case directs a court’s discretion, it does not limit the tribunal’s power.”). Or, as Justice
HOLMES once put it, the doctrine “merely expresses the practice of courts generally to refuse to
reopen what has been decided, not a limit to their power.” Messenger v Anderson, 225 US 436,
444; 32 S Ct 739; 56 L Ed 1152 (1912).

D. JUDICIAL DISQUALIFICATION

Finally, defendant argues in its brief that the case should be assigned to a different judge
on remand. Defendant did not, however, include this issue in its statement of the questions
presented, and thus the matter is waived. Seifeddine v Jaber, 327 Mich App 514, 521; 934 NW2d
64 (2019). Moreover, defendant did not move to disqualify the trial judge in accordance with
MCR 2.003, and therefore defendant failed to preserve the matter. Kloian v Schwartz, 272 Mich
App 232, 244; 725 NW2d 671 (2006). For these reasons, we decline to address defendant’s request
to disqualify the trial judge on the second remand.

III. CONCLUSION

For the reasons set forth above, we affirm in part, reverse in part, and remand the matter to
the trial court for further proceedings consistent with this opinion. Specifically, we affirm the trial
court’s grant of JNOV to defendant, and we reverse the trial court’s grant of relief to plaintiff from
that JNOV under MCR 2.612. The trial court is instructed to reinstate the JNOV in defendant’s
favor.

We do not retain jurisdiction.

/s/ Colleen A. O’Brien
/s/ Brock A. Swartzle

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