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

RAKESH NAYYAR, Personal Representative of the UNPUBLISHED
ESTATE OF BIMLA NAYYAR, March 23, 2023

Plaintiff-Appellant,

v No. 360257
Wayne Circuit Court
OAKWOOD HEALTHCARE, INC., doing business LC No. 13-009819-NH
as OAKWOOD HOSPITAL & MEDICAL
CENTER,

Defendant-Appellee.

Before: RICK, P.J., and SHAPIRO and LETICA, JJ.

PER CURIAM.

In this medical malpractice action, plaintiff, Rakesh Nayyar, as personal representative of
the estate of Bimla Nayyar, appeals as of right the trial court’s January 21, 2022 order entering
judgment notwithstanding the verdict (JNOV) in favor of defendant, Oakwood Healthcare, Inc.,
doing business as Oakwood Hospital & Medical Center. We vacate the trial court’s order and
remand for entry of a judgment in favor of plaintiff consistent with the jury’s verdict, with damages
subject to reduction by the trial court in accordance with MCL 600.6304(5).

I. BACKGROUND

On January 9, 2012, the decedent, Bimla Nayyar, underwent an unnecessary brain surgery,
also known as a craniotomy, after another patient’s CAT scan results were mistakenly placed in
her medical file. She died approximately two months later, after experiencing a series of medical
complications following the craniotomy. The action here arises from a lawsuit filed by plaintiff
following the decedent’s death, in which a jury found in plaintiff’s favor and awarded $20 million
in damages.

A summary of the protracted procedural history of this case is necessary to a proper
understanding of the present appeal. Central to the proceedings is an order of peremptory reversal
entered by this Court in July 2015. Estate of Nayyar v Oakwood Healthcare, Inc, unpublished
order of the Court of Appeals, entered July 15, 2016 (Docket No. 329135). There, this Court

-1-
vacated a June 2015 judgment for plaintiff and instead remanded for entry of an order of JNOV in
favor of defendant. This Court’s prior opinion in another appeal arising out of this case, Estate of
Nayyar v Oakwood Healthcare, Inc, unpublished per curiam opinion of the Court of Appeals,
issued May 14, 2020 (Docket No. 343676), pp 2-8, summarizes the relevant background as
follows:

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.

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.

-2-
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. . . .

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.” . . . 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. . . .

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.” . . .

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.” . . . Then on April 24, 2015, the parties submitted a proposed
joint pretrial order . . . [C]onsistent with the 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.

-3-
 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.” . . . 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. . . .

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.” . . . 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. . . . 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.” . . .

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. . . . Consistent with defendant’s earlier admissions, the trial court
instructed the jury that “the issues of negligence have been admitted.” . . . 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.” . . . 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.” . . . 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. . . . In response, defendant’s counsel pointed out
that (1) plaintiff’s counsel did 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. . . .

-4-
 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. . . . 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.” . . .
(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.” . . .
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.” . . . 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. . . .

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

-5-
 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).” . . .

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.” . . . 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 further asserted, “Plaintiff was allowed to re-file and litigate his negligence

-6-
claim, and the proofs adduced throughout litigation established that the claim
sounded in ordinary negligence, not medical malpractice.” . . .

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 , 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

-7-
 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. [Estate of Nayyar
(Docket No. 329135), unpub order at 1.]

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. Estate of Nayyar v Oakwood Healthcare, Inc, 500
Mich 1032; 897 NW2d 183 (2017), recon den 501 Mich 972 (2018).

On remand, plaintiff filed a motion asking the trial court to first enter an order of JNOV as
directed by this Court, and subsequently enter an order granting plaintiff relief from the JNOV
order under MCR 2.612(C)(1)(a), (c), and (f). The trial court did just that, entering an order
granting JNOV in favor of defendant, but then immediately entering another order granting
plaintiff relief from that order. Defendant filed an emergency application for leave to appeal,
which this Court granted. This Court ultimately concluded that the trial court exceeded its
authority on remand when it granted relief to plaintiff. Estate of Nayyar (Docket No. 343676),
unpub opn at 1. This Court also concluded that because the law-of-the-case doctrine applied, it
was “bound by the prior panel’s [peremptory-reversal] order,” and was not authorized to grant
relief to plaintiff. Id. This Court explained, in pertinent part:

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.”).

Additionally, this Court noted that the trial court was prohibited from relying on
MCR 2.612 “as a means for expanding its limited authority on remand,” particularly if the law-of-

-8-
the-case doctrine was applicable. Estate of Nayyar (Docket No. 343676), unpub op at 10, citing
Sumner v Gen Motors Corp (On Remand), 245 Mich App 653; 633 NW2d 1 (2001). This Court
noted that, according to Sumner, a trial court’s authority to grant relief from judgment is limited
to circumstances in which the trial court is granting relief from its own judgment, and that it could
not rely on MCR 2.612 to grant relief from a judgment handed down by a higher court. Id.

This Court then considered the scope of its own authority with respect to the prior panel’s
order of peremptory reversal. This Court held that it had “a ‘mandatory obligation’ to adhere to
the law-of-the-case doctrine except in several well-defined, limited circumstances,” such as a
material change of the facts on remand, an intervening change in the law, or a “significant
competing interest at stake, such as a constitutional right[.]” Id. at 11. This Court concluded that
none of the exceptions applied. Id. at 12.

Turning to plaintiff’s assertion that the decision of the prior panel was mistaken, this Court
conceded that a case could be made that the prior panel erred by granting peremptory reversal, but
declined to determine whether the prior panel erred because “[c]ase law in this jurisdiction is clear
that the law-of-the-case doctrine applies regardless of the correctness of the prior determination.”
Id. at 12-13. In other words, the Court’s decision rested primarily if not exclusively on the law of
the case doctrine. It concluded that even if the peremptory reversal had been a clear error causing
manifest injustice, plaintiff was “without recourse under our current precedent” because “the
correctness of a prior panel’s decision is not subject to review under our law-of-the-case doctrine.”
Id. at 14. The panel, however, urged 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.” Id. Ultimately, this Court affirmed the trial court’s initial
grant of JNOV to defendant, reversed the court’s order granting plaintiff relief from that JNOV
order under MCR 2.612, and instructed the trial court on remand to reinstate the order of JNOV in
favor of defendant.

JUDGE METER concurred in part and dissented in part, stating that while he concurred based
on the law of the case, he concluded that granting peremptory reversal had been “a mistake.” He
noted that defendant had admitted to breaching the standard of care before trial, and that the
testimony at trial focused on causation and damages, explaining that

any and all testimony elicited by plaintiff regarding the relevant standard of care
and associated breach were completely irrelevant, as the majority recognizes.
Whether plaintiff proceeded through trial under a theory of medical malpractice or
ordinary negligence, the issue of causation was the same. See O’Neal v St John
Hosp & Med Ctr, 487 Mich 485, 496-497; 791 NW2d 853 (2010). [Estate of
Nayyar (Docket No. 343676), unpub op at 2 (METER, P.J., concurring in part and
dissenting in part).]

JUDGE METER concluded that the prior panel “should have remanded the case for entry of judgment
in favor of defendant (sic), but with damages capped, which is standard operating procedure that
trial courts can easily accomplish post-verdict in any medical malpractice case. See
MCL 600.6304(5).” Id. at 1. JUDGE METER also separately urged the Michigan Supreme Court to
“reexamine and clarify the law-of-the-case doctrine in cases involving, as here, ‘lateral review.’ ”
Id. at 2.

-9-
 Plaintiff applied for leave to appeal this Court’s decision in Docket No. 343676, but our
Supreme Court denied leave. Estate of Nayyar v Oakwood Healthcare, Inc, 507 Mich 999; 961
NW2d 147 (2021). After this Court issued its decision, but before the case returned to the trial
court for entry of an order granting defendant JNOV as directed by this Court, our Supreme Court
decided Rott v Rott, 508 Mich 274, 288; 972 NW2d 789 (2021), in which it recognized an
exception to the law-of-the-case doctrine for prior decisions that are clearly erroneous and result
in manifest injustice. Thereafter, on January 21, 2022, the trial court entered an order on remand
granting defendant JNOV as directed by this Court. This appeal followed.

II. JURISDICTIONAL CHALLENGE

As an initial matter, defendant challenges the Court’s jurisdiction over this appeal.
Although defendant does not dispute that plaintiff timely filed a claim of appeal from the trial
court’s January 21, 2022 order, it argues that the January 21 order itself was final under
MCR 7.202(6)(a)(i), and that consequently, this Court does not have jurisdiction over the matter
under MCR 7.203(A)(1). Defendant raised an identical argument in a motion to dismiss, which
this Court denied. Estate of Nayyar v Oakwood Healthcare, Inc, unpublished order of the Court
of Appeals, entered May 6, 2022 (Docket No. 360257). This Court’s previous decision on this
issue is the law of the case, which we are bound to follow. See Bennett v Detroit Police Chief,
274 Mich App 307, 311 n 1; 732 NW2d 307 (2006) (applying the law-of-the-case doctrine to avoid
revisiting a jurisdictional challenge in a brief because “[t]his Court’s order denying plaintiff’s
motion to dismiss based on the jurisdiction of this Court controls the outcome of this issue on
appeal”).1 We thus decline to revisit defendant’s finality challenge here.

Defendant also argues that plaintiff does not have appellate standing, stating that plaintiff
was not aggrieved by the trial court’s January 21 order. We disagree. MCR 7.203(A) provides
that this Court has jurisdiction of an appeal by right “filed by an aggrieved party.” An aggrieved
party must have suffered a concrete and particularized injury, as would a party plaintiff initially
invoking a court’s power. Manuel v Gill, 481 Mich 637; 643-644, 753 NW2d 48 (2008).
Accordingly, an appellant must demonstrate an injury arising from the actions of the trial court
rather than an injury arising from the underlying facts of the case. Id. at 644. Defendant argues
that plaintiff was not aggrieved by any decision made by the trial court because the January 21
order granting JNOV in favor of defendant was entered in accordance with this Court’s directive
in Estate of Nayyar (Docket No. 343676), unpub op at 14. However, we find that plaintiff was
injured by the trial court’s entry of the January 21 order, which granted JNOV to defendant,
reversing a prior judgment in plaintiff’s favor and essentially closing the case. Plaintiff is an
aggrieved party because he suffered a concrete and particularized injury from the trial court’s order
granting JNOV in favor of defendant and closing the case. Therefore, we reject defendant’s
argument that this Court lacks jurisdiction over this appeal.

1
Contrary to what defendant asserts, the law-of-the-case doctrine is not limited to cases in which
a previously decided issue is raised in a subsequent appeal. See McNees v Cedar Springs Stamping
Co (After Remand), 219 Mich App 217, 221-222; 555 NW2d 481 (1996) (“Under the doctrine of
law of the case, an appellate court’s decision concerning a particular issue binds courts of equal or
subordinate jurisdiction during subsequent proceedings in the same case.”) (emphasis added).

-10-
 III. LAW-OF-THE-CASE DOCTRINE

This appeal turns on whether our Supreme Court in Rott, which was decided after this Court
directed the trial court to enter an order granting JNOV to defendant, expressly ruled that an
exception to the application of the law-of-the-case doctrine exists in cases where a “prior decision
is clearly erroneous and would work a manifest injustice.” 508 Mich at 288, quoting Pepper v
United States, 562 US 476, 506-507; 131 S Ct 1229; 179 L Ed 2d 196 (2011). We conclude that
our Supreme Court did expressly clarify that an exception to the law-of-the-case doctrine exists in
such situations. We further conclude that plaintiff has adequately demonstrated that the exception
should be applied herein.

A. LEGAL BACKGROUND

“[T]his Court reviews de novo the determination whether the law-of-the-case doctrine
applies and to what extent it applies.” Lenawee Co v Wagley, 301 Mich App 134, 149; 836 NW2d
193 (2013) (quotation marks and citation omitted). Under the law-of-the-case doctrine, the ruling
of an appellate court on a particular issue binds the appellate court and all lower courts with respect
to that issue. Farish v Dep’t of Talent & Economic Dev, 336 Mich App 433, 449; 971 NW2d 1
(2021). The doctrine only applies to legal questions actually determined in the prior decision and
to issues necessary to that earlier determination. Id. The aim of the doctrine is to ensure
consistency and to “ ‘avoid reconsideration of matters once decided during the course of a single
lawsuit.’ ” AFT v Michigan, 334 Mich App 215, 225; 964 NW2d 113 (2020) (citation omitted).

One of our Supreme Court’s most recent decisions regarding the law-of-the case doctrine
is Rott, 508 Mich 272. In Rott, the plaintiff sued the defendant under theories of negligence and
premises liability after she was injured while riding a zip-line in the defendant’s backyard. Id.
at 282. The defendant moved for summary disposition, claiming that the plaintiff’s cause of action
was barred by the Recreational Land Use Act (RUA), MCL 324.73301(1). The trial court agreed
that the RUA applied, but denied the motion for summary disposition because there were genuine
issues of material fact regarding whether the defendant was grossly negligent or engaged in willful
and wanton misconduct under the RUA. Rott, 508 Mich at 282.

Whether the RUA applied became a major point of contention between the parties. On
appeal, the plaintiff argued that the RUA did not apply and moved for peremptory reversal, while
the defendant argued that summary disposition was improperly denied, but did not respond to the
plaintiff’s request for peremptory reversal. Id. at 282-283. This Court denied the plaintiff’s
motion for peremptory reversal and application for leave to appeal, citing a failure to persuade the
Court of the need for immediate appellate review. Id. at 283. However, this Court granted the
defendant’s application for leave, limited to the issues raised in his application. Id. In her answer
to the defendant’s application for leave to appeal, the plaintiff specifically asserted that she had
not conceded that the RUA was applicable. Id.

This Court subsequently reversed the trial court, concluding that the plaintiff had not
presented evidence of gross negligence. In so ruling, this Court presumed that the RUA was
applicable, but did not offer any analysis on that point. Id. at 283-284. The case was remanded to
the trial court for entry of a judgment in favor of the defendant, at which point the plaintiff appealed

-11-
as of right, claiming once again that the RUA was not applicable. Id. at 284. This Court concluded
that the prior decision was the law of the case with respect to that issue. Id.

The plaintiff applied for leave to appeal in the Michigan Supreme Court, which ultimately
held that this Court erred by invoking the law-of-the-case doctrine because the plaintiff had not
conceded, waived, or forfeited her right to challenge whether the RUA was applicable. Id. at 288.
The Court noted that this Court’s order denying the plaintiff’s application for leave to appeal did
not address the applicability of the RUA and was not a decision on the merits. Id. at 289.
Similarly, the order granting the defendant’s application for leave to appeal was limited to the
issues raised in the application, which did not include whether the RUA was applicable. Id. The
Supreme Court held that this Court’s application of the law-of-the-case doctrine was improper
because this Court could not have implicitly or explicitly decided the applicability of the RUA in
the prior appeal because the issue was never properly before this Court in that appeal. Id.

In its discussion of the law-of-the-case doctrine, the Supreme Court explained that the
doctrine is not a limit on the power of the judiciary, but instead reflects the practice of courts to
refuse to reopen what has already been decided. Id. at 287. Significantly, citing a United States
Supreme Court decision, the Court noted that an exception to the law-of-the-case doctrine exists
if a prior order or judgment is clearly erroneous and would result in manifest injustice, stating:

We also heed the United States Supreme Court’s astute observation that the
“doctrine does not apply if the court is convinced that its prior decision is clearly
erroneous and would work a manifest injustice.” Pepper v United States, 562 US
476, 506-507; 131 S Ct. 1229; 179 L Ed 2d 196 (2011) (quotation marks, citations,
and brackets omitted). [Rott, 508 Mich at 288.]

Cf. Christianson v Colt Indus Operating Corp, 486 US 800, 817; 109 S Ct 2166; 100 L Ed 2d 811
(1988) (recognizing that a court “has the power to revisit [a] prior decision[] of its own . . . in any
circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary
circumstances such as where the initial decision was clearly erroneous and would work a manifest
injustice.”) (quotation marks and citation omitted; emphasis added); see also Wright, Miller, &
Cooper, Federal Practice & Procedure, § 4478 (observing that “[t]he exception that allows
departure from the law-of-the-case doctrine when the earlier decision was clearly erroneous and
would work a manifest injustice is more likely to be described than employed”) (quotation marks
and footnote omitted).

B. APPLICATION

As an initial matter, defendant argues that Rott did not overrule prior precedent disavowing
the clearly erroneous/manifest injustice exception to the law-of-the-case doctrine, and asserts that
the holding in Rott is narrow and should be limited to its facts. We disagree.

Defendant cites Gourlay v Ins Co of N America, 189 Mich 384, 386; 155 NW 483 (1915)
for the proposition that Michigan strictly applies the law of the case doctrine. Gourlay did decline
to adopt other states’ exceptions to the doctrine, but at the same time stated “that this court has the

-12-
power to now reverse its former judgment and, for that purpose power to consider again the
question and arguments heretofore and now presented by the appellant.” Id.at 385-386.2

Further, Rott itself does not indicate that its holding is limited to the facts of that case. In
sum, we conclude that the Supreme Court’s decision in Rott recognizes an exception to the
application of the law-of-the-case doctrine for prior decisions that are clearly erroneous and would
result in manifest injustice if the doctrine were to be applied.

As to the substance of plaintiff’s law-of-the-case claim, we observe that this Court’s earlier
order granting defendant’s motion for peremptory reversal resulted in two key conclusions: (1)
that plaintiff was procedurally barred from pursuing a claim for ordinary negligence, and (2) that
defendant was therefore entitled to entry of an order of JNOV. We agree that plaintiff is
procedurally barred from pursuing a claim for ordinary negligence. However, we find that the
panel’s second determination—that defendant was entitled to entry of an order of JNOV—
qualifies as clearly erroneous, and that this decision has resulted in manifest injustice to plaintiff
under the circumstances presented in this case.

“Whether a claim sounds in ordinary negligence or medical malpractice is a question of
law that is reviewed de novo.” Trowell v Providence Hosp & Med Ctrs, Inc, 502 Mich 509, 517;
918 NW2d 645 (2018). The prior panel’s determination that defendant was entitled to JNOV was
grounded in its belief that plaintiff brought this action under an ordinary negligence theory, rather
than a medical malpractice theory. After reviewing the record of the jury trial in its entirety, we
are of the view that the previous panel erroneously concluded that the plaintiff’s claim sounded in
ordinary negligence and that consequently, the jury’s verdict was predicated solely on a theory of
ordinary negligence. The jury’s award of damages was consistent with an award of damages for
medical malpractice since damage caps are enforced only after a verdict.

Plaintiffs in medical malpractice cases commonly argue that a claim sounds in ordinary
negligence rather than medical malpractice, presumably in an attempt to avoid the stringent
statutory requirements and damages cap applied to medical malpractice claims. This has occurred
with such frequency that our Supreme Court has gone so far as to explain that a plaintiff cannot
couch a medical malpractice claim in a theory of ordinary negligence to avoid the statutory and
procedural requirements attendant to a medical malpractice claim. Dorris v Detroit Osteopathic
Hosp, 460 Mich 26, 43; 594 NW2d 455 (1999). Such procedural requirements include providing
the “health facility” or “health professional” against whom suit will be brought with notice of

2
Defendant also cites Johnson v White, 430 Mich 47, 55; 420 NW2d 87 (1988), claiming that it
establishes that the clearly erroneous exception to the law-of-the-case doctrine is not applicable in
Michigan. In Johnson, however, the Court expressly declined to consider whether the exception
should be adopted for purposes of that case. We also note that this Court has stated that “[e]ven if
[a] prior decision was erroneous, that alone is insufficient to avoid application of the law of the
case doctrine.” Duncan v Michigan, 300 Mich App 176, 189; 832 NW2d 761 (2013) (emphasis
added); see also Augustine v Augustine v Allstate Ins Co, 292 Mich App 408, 425; 807 NW2d 77
(2011).

-13-
intent to file a lawsuit, as well as supporting the complaint with an affidavit of merit from a health
professional. See MCL 600.2912b and MCL 600.2912d.

In the instant case, plaintiff sent a notice of intent and submitted an affidavit of merit with
the complaint satisfying these two requirements for filing a medical malpractice suit and the
allegations made it clear that the claim was one for medical malpractice. The complaint alleged
that the decedent experienced “care and treatment constituting . . . malpractice” and that defendant
owed the decedent “a duty to maintain the standard of care and treatment of its peers within the
professional community of hospital administrations across the country,” which are obviously
statements indicating that the claim was one for medical malpractice.

Moreover, defendant conceded professional negligence, so when the case proceeded to
trial, the jury was charged with determining only whether defendant’s breach of the standard of
care proximately caused the decedent’s death and the amount of damages. In its preliminary
instructions at the start of trial, the trial court advised the jury that defendant had admitted its
negligence, but contested that the craniotomy was the proximate cause of the decedent’s death,
and informed the jury that plaintiff was alleging wrongful death and “medical malpractice.” The
trial court further instructed the jury, in pertinent part:

The plaintiff has the burden of proof on each of the following: That the
plaintiff sustained injury and damages, that the professional negligence or
malpractice of the defendant was a proximate cause of the injury and damages to
the plaintiff.

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 professionally
negligent or did commit malpractice, but such professional negligence or
malpractice was not a proximate cause of plaintiff’s injuries or damages[.]

In their opening statements, plaintiff’s counsel addressed all of the various ailments that
the decedent suffered following the craniotomy, and described how her health had deteriorated. In
response, defense counsel described the decedent’s health issues both before and after the
craniotomy, and asserted that the unnecessary craniotomy was “inconsequential” to how she
ultimately died. Both parties called several medical experts at trial, but the testimony of these
witnesses principally involved the issue of causation, not professional negligence, which defendant
had conceded. Similarly, during closing arguments, the parties focused on whether the craniotomy
proximately caused the decedent’s death. Our review of plaintiff’s counsel’s closing argument
does not reveal that counsel referred to plaintiff’s claim as one involving ordinary negligence.

In sum, after reviewing the trial record, it is clear that this case proceeded to trial and was
tried as a medical malpractice case. Thus, the record does not support the prior panel’s conclusion
that plaintiff proceeded under a theory of ordinary negligence. Indeed, it is apparent that at trial,
the distinction between a claim for medical malpractice and one for ordinary negligence was
largely irrelevant. The distinction between these two types of claims primarily involves an

-14-
assessment of the defendant’s alleged conduct, and defendant conceded professional negligence.
Consistent with this posture of the case, the trial court instructed the jury in its final instructions
as follows:

The plaintiff has the burden of proof on each of the following: That the
[decedent] sustained injury damages, that the admitted negligence or malpractice
of the defendant was a proximate cause of the injury or damages to the [decedent].

Your verdict will be for the plaintiff if the defendant’s admitted negligence
was a proximate cause of the [decedent’s] injuries and if there were damages.

Your verdict will be for the defendant if the defendant’s admitted
negligence was not a proximate cause of the [decedent’s] injuries or damages or the
[decedent] was not injured or damaged.

Likewise, the jury verdict form did not require the jury to determine whether defendant was
professionally negligent. Instead, the first question on the verdict form asked the jury: “Was
Defendants negligence a proximate cause of injuries or damages claimed to Bimla Nayyar.” The
jury answered this question, “Yes”. The remaining questions on the verdict form pertained to the
jury’s determination of damages.

We are also unable to find a factual or legal basis for the prior panel’s statement that the
jury awarded damages only under a theory of ordinary negligence. First, as explained earlier, the
jury was not required to determine any standard of care that was breached because defendant
conceded the issue of professional negligence. Consequently, the jury was instead asked to
determine whether the alleged negligence was a proximate cause of the decedent’s injuries, which
it would have been required to do for both a medical malpractice and an ordinary negligence claim.
Second, we acknowledge that the prior panel may have been compelled to believe that this was an
ordinary negligence case because the jury’s award of damages exceeded the statutory cap on
damages applicable to a medical malpractice claim. However, the damages award does not
conclusively demonstrate that the jury could only have awarded damages for ordinary negligence
because the jury is not supposed to know that there is a cap on damages in medical malpractice
cases. Verdicts in medical malpractice cases are subject to statutory caps under MCL 600.1483.
However, it is the trial court’s responsibility to reduce a jury verdict in accordance with the
limitations in the statute after trial, if necessary. Importantly, the jury is not permitted to be advised
of those limitations. Specifically, MCL 600.6304(5) provides:

In an action alleging medical malpractice, the court shall reduce an award
of damages in excess of 1 of the limitations set forth in section 1483 to the amount
of the appropriate limitation set forth in section 1483. The jury shall not be advised
by the court or by counsel for either party of the limitations set forth in section 1483
or any other provision of section 1483.

Thus, to the extent that the jury’s verdict exceeded the limitations set forth in MCL 600.1483, it
was up to the trial court to reduce the award after trial pursuant to MCL 600.6304(5). Additionally,
defendant does not assert that the jury was asked to award, or did award, damages for any item for
which damages could not be recovered in a wrongful-death medical malpractice action. As such,

-15-
contrary to the prior panel’s conclusion, the jury’s award of damages in this case is not solely
consistent with a theory of ordinary negligence.

We also reject defendant’s assertion that plaintiff waived any claim for medical malpractice
by asserting in this Court, in response to defendant’s motion for peremptory reversal in Docket
No. 329135, that plaintiff’s claim was one alleging ordinary negligence. In Home-Owners Ins Co
v Perkins, 328 Mich App 570, 585; 939 NW2d 705 (2019), this Court stated:

A waiver is “the intentional and voluntary relinquishment of a known right.”
Moore v First Security Cas Co, 224 Mich App 370, 376; 568 N.2d 841 (1997).
“[A] valid waiver may be shown by express declarations or by declarations that
manifest the parties’ intent and purpose, or be an implied waiver, evidenced by a
party’s decisive, unequivocal conduct reasonably inferring the intent to waive.”
Patel v Patel, 324 Mich App 631, 634; 922 NW2d 647 (2018) (quotation marks
and citations omitted).

After reviewing plaintiff’s response to the motion for peremptory reversal, we are not persuaded
that plaintiff intentionally and voluntarily waived any characterization of his claim as one for
medical malpractice.3 In the context of responding to defendant’s argument that preclusion
doctrines barred any claim for ordinary negligence, plaintiff noted that ordinary negligence and
medical malpractice claims are both grounded in a theory of negligence, with the only difference
being whether the negligence occurred in the course of a professional relationship that implicated
questions of medical judgment. Plaintiff argued that because the 2012 and 2013 complaints both
contained the same claims, preclusion doctrines did not apply to bar his claim. Further, while
stating that he was committed to the position that his claim was one for ordinary negligence, and
did not implicate questions of professional medical expertise, a position similar to that argued in
the trial court, plaintiff acknowledged that he could not change the underlying nature of his claim
and that the gravamen of the claim controlled rather than any labels affixed to the claim. Thus,
although plaintiff’s arguments reflect an effort to persuade this Court that his claim should be
viewed as one for ordinary negligence, they do not reflect an intent to relinquish any right to have
his claim characterized as one for medical malpractice should this Court disagree.

In sum, the record discloses that despite the efforts by plaintiff’s counsel to convince the
trial court, and an earlier panel of this Court, that the case sounded in ordinary negligence, it was
clearly tried as a medical malpractice case, and the jury was so instructed. Moreover, because the
jury was not advised of the limitation on damages applicable to medical malpractice cases, its
verdict cannot be viewed as one awarding damages only under a theory of ordinary negligence.
Under these circumstances, although the prior panel may have properly concluded that plaintiff
was procedurally barred from asserting a claim for ordinary negligence, it clearly erred by holding

3
We also reject defendant’s arguments regarding judicial estoppel. Counsel’s efforts to persuade
the trial court that plaintiff’s claim should be treated as one for ordinary negligence involved
arguments made outside the presence of the jury. Moreover, they do not establish that the case
was actually litigated as an ordinary negligence case, or that the jury awarded damages under that
theory. And as explained earlier, the jury was not required to even decide the issue of professional
negligence because defendant had conceded that issue for purposes of trial.

-16-
that “plaintiff unequivocally proceeded in this action under an ordinary negligence theory and the
jury awarded damages under that theory,” and, as a result, defendant was entitled to entry of an
order of JNOV. Estate of Nayyar (Docket No. 329135), unpub order at 1. Thus, plaintiff satisfied
the first prong for application of the exception to the law-of-the-case doctrine recognized in Rott,
508 Mich at 288, namely, a prior decision that is clearly erroneous.

For the exception to apply, however, plaintiff must also demonstrate that the prior
erroneous decision “would work a manifest injustice.” Id. We conclude that plaintiff has satisfied
this second prong. As noted, defendant conceded that a craniotomy had been performed on
plaintiff when none was called for because of the mislabeling of a CT scan, and the jury concluded
that it caused the death of the plaintiff. While plaintiff’s counsel made several remarks at trial that
one did not need to be a doctor to know that such an error constituted negligence, those comments
bore no relation to the issues that the jury was to determine. The prior panel’s peremptory-reversal
vacated a jury verdict in favor of plaintiff and granted JNOV in favor of defendant. The panel
reached this result after concluding that plaintiff brought the claim under an ordinary negligence
theory and that he was procedurally barred from pursuing such a claim. Again, we agree with the
prior panel that plaintiff could not pursue a claim for ordinary negligence. However, because
defendant admitted professional negligence and given the limited issues the jury was thus called
upon to decide at trial, that determination had no practical effect on the jury’s verdict. Rather, the
only effect of the prior panel’s determination should have been to limit plaintiff’s damages to those
recoverable for medical malpractice, consistent with MCL 600.1483. That was something for the
trial court to remedy posttrial, as specified in MCL 600.6304(5). Under these circumstances,
where professional negligence was conceded and the issues that the jury was called upon to
determine at trial—causation and damages—were irrelevant to whether plaintiff’s claim was one
for ordinary negligence or medical malpractice, it was manifestly unjust to vacate the jury’s verdict
and enter a judgment of JNOV in favor of defendant, thereby precluding plaintiff from any
recovery whatsoever. Accordingly, plaintiff has satisfied the requirements for avoiding
application of the law-of-the-case doctrine where a prior decision was both clearly erroneous and
would work a manifest injustice.

For the foregoing reasons, we conclude that we are not bound by the panel’s prior
determination that defendant is entitled to JNOV. Under these circumstances, the appropriate
remedy is to vacate the trial court’s January 21, 2022 order granting JNOV in favor of defendant
and remand for entry of a judgment in favor of plaintiff.

IV. CONCLUSION

We vacate the trial court’s January 21, 2022 order granting JNOV in favor of defendant
and remand for entry of a judgment in favor of plaintiff consistent with the jury’s verdict, subject
to reduction by the trial court in accordance with MCL 600.6304(5), consistent with
MCL 600.1483(1).

We do not retain jurisdiction.

/s/ Michelle M. Rick
/s/ Douglas B. Shapiro
/s/ Anica Letica

-17-