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
DIANA LYNN COOK, UNPUBLISHED
September 21, 2023
Plaintiff-Appellant,
v No. 364095
Ingham Circuit Court
SPARROW HOSPITAL and JOCELYN T BOHR LC No. 20-000278-NH
RN,
Defendants-Appellees.
Before: HOOD, P.J., and REDFORD and MALDONADO, JJ.
PER CURIAM.
In this nursing malpractice case, plaintiff appeals by right the trial court’s order granting
summary disposition in favor of defendants, Sparrow Hospital and Jocelyn T. Bohr, R.N., pursuant
to MCR 2.116(C)(10) (no genuine issue of material fact). Plaintiff presented evidence sufficient
to establish that defendant Bohr breached the applicable standard of care; however, because
plaintiff did not produce expert testimony establishing that defendant Bohr’s misconduct caused
plaintiff’s pain and suffering, we affirm.
I. BACKGROUND
On November 8, 2017, plaintiff underwent a minor outpatient urological procedure to
alleviate small amounts of blood being found in her urine. Following the procedure, she
experienced intense pain, uncontrollable vomiting, and an inability to urinate. Defendant Bohr, a
nurse at Sparrow Hospital, allegedly dismissed plaintiff’s concerns, refused to contact the urologist
who performed the surgery, failed to accurately document plaintiff’s symptoms, and prematurely
discharged her from the hospital. Moreover, plaintiff and her family alleged that defendant Bohr
made comments asserting that plaintiff needed to leave by 5:00 p.m. so that defendant Bohr would
not have to work overtime, and plaintiff ultimately was discharged at approximately that time.
On November 11, plaintiff was at home until the early hours in agony and unable to drink
water or urinate. When she returned to the hospital on November 11, she was in total renal failure.
Her ureters were blocked, preventing urine from getting from her kidneys and to her bladder.
Plaintiff believed that defendant Bohr’s inadequate assistance following the surgery caused her
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treatment to be unnecessarily delayed and that her suffering should have been alleviated much
sooner. Thus, plaintiff sued defendant Bohr and Sparrow Hospital, asserting that defendant Bohr’s
failure to inform a doctor of her condition and the premature discharge caused her to needlessly
suffer for more than two days. However, plaintiff never procured expert testimony from a urologist
to establish that defendant Bohr’s conduct caused plaintiff’s pain and suffering. Therefore,
summary disposition was granted in favor of defendants.
II. DISCUSSION
Plaintiff argues that summary disposition was inappropriate because the nature of this case
was such that a jury of laypeople could understand the facts without the assistance of expert
testimony. We disagree.
This Court reviews de novo a trial court’s decision to grant or deny a motion for summary
disposition, and the evidence is viewed in a light most favorable to the nonmoving party. West v
Gen Motors Corp, 469 Mich 177, 183; 665 NW2d 468 (2003). Summary disposition should be
granted pursuant to MCR 2.116(C)(10) when the evidence reveals no genuine issue of material
fact. Id. at 183. “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” Id. Whether a witness is qualified to offer expert testimony is reviewed for abuse of
discretion. Tate ex rel Estate of Hall v Detroit Receiving Hosp, 249 Mich App 212, 215; 642
NW2d 346 (2002).
Although this was a source of contention in the trial court, plaintiff does not dispute on
appeal that her claims sound in medical malpractice. To prevail in a medical malpractice action,
“the plaintiff must establish: (1) the standard of care, (2) breach of that standard of care, (3) injury,
and (4) proximate causation between the alleged breach and the injury.” Pennington v
Longabaugh, 271 Mich App 101, 104; 719NW2d 616 (2006). “[T]he plaintiff has the burden of
proving that he or she suffered an injury that more probably than not was proximately caused by
the negligence of the defendant or defendants.” MCL 600.2912(2). “Expert testimony is essential
to establish a causal link between the alleged negligence and the alleged injury.” Pennington, 271
Mich App at 104; see also Kalah v Khan, 295 Mich App 420, 429; 820 NW2d 233 (2012) (“Expert
testimony is required to establish the standard of care and a breach of that standard as well as
causation.”) (citations omitted). However, expert testimony is not required if the matter “was
within the common understanding of the jury.” Woodward v Custer, 473 Mich 1, 9; 702 NW2d
522 (2005).
In this case, plaintiff’s theory is that defendant Bohr breached the standard of care by:
failing to notify a doctor that plaintiff was in pain, vomiting, and unable to urinate; prematurely
discharging plaintiff from the hospital; and falsifying medical records to suggest that plaintiff was
not experiencing these symptoms. Plaintiff posits that, had defendant Bohr notified a doctor of
plaintiff’s symptoms, properly documented her symptoms, and allowed her to stay at the hospital,
plaintiff would have received the treatment on November 8 that was delayed until November 11.
Thus, had she not been prematurely discharged from the hospital, she would have been spared the
multiple days of pain and suffering she endured. However, under established Michigan case law,
proof of this theory requires evidence regarding what would have happened if a reasonable
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urologist had been notified on November 8 that plaintiff was experiencing these symptoms. See
Pennington, 271 Mich App at 104.
The central premise of plaintiff’s claim is that had a reasonable urologist been informed on
November 8 that plaintiff was in pain, vomiting, and unable to urinate, the urologist would have
immediately provided the care plaintiff ultimately received on November 11. Yet, how a urologist
would have responded to a complication following a urological procedure is not something that
would fall “within the common understanding of” laypeople sitting on a jury. Woodward, 473
Mich at 9. The fact plaintiff underwent the surgery when she returned to the hospital on November
11 does not enable a layperson to simply infer that she would have undergone the surgery on
November 8 because only an expert can discuss whether the passage of time impacted the course
of treatment. In other words, it is possible that plaintiff’s condition was different on November 11
than it was on November 8, and an expert is needed to establish that but for the actions of
defendant, plaintiff would have received that treatment on November 8. It is possible that
plaintiff’s surgeon, Dr. Rizer, would have discharged plaintiff with instructions to return in a
couple days if her condition did not improve; indeed, the evidence established that Dr. Rizer was
contacted on November 9 regarding plaintiff’s symptoms and simply prescribed an anti-nausea
medication.
To support the theory that defendant Bohr’s actions caused plaintiff’s treatment to be
unnecessarily delayed, plaintiff offered affidavits from a nurse, Rebecca A. Schnepp, and a general
practitioner, Dr. Peter Luea. Nurse Schnepp stated that defendant Bohr breached the applicable
standard of care by disobeying doctors’ orders, falsely recording plaintiff’s condition, and
discharging plaintiff while she was in pain and vomiting. Both Nurse Schnepp and Dr. Luea
opined that plaintiff was discharged prematurely, causing an unnecessary delay in her treatment.
However, the trial court appropriately exercised its discretion to conclude that Nurse Schnepp and
Dr. Luea were not qualified to speak to the course of action that a reasonable urologist would have
taken on November 8. See Tate, 249 Mich App at 215. The trial court did not abuse its discretion
by determining that establishing the causation element of plaintiff’s claim required the specialized
knowledge of a urologist.
All expert testimony in a medical malpractice action is subject to MCL 600.2169(2),1
which provides:
In determining the qualifications of an expert witness in an action alleging
medical malpractice, the court shall, at a minimum, evaluate all of the following:
(a) The educational and professional training of the expert witness.
(b) The area of specialization of the expert witness.
1
An important wrinkle in this case is that while expert testimony regarding urology is needed, the
urologist is not a party to this lawsuit; therefore, the statutory requirement that the expert have “the
same specialty as the party against whom or on whose behalf the testimony is offered” does not
apply. MCL 600.2169(1)(a).
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(c) The length of time the expert witness has been engaged in the active
clinical practice or instruction of the health profession or the specialty.
(d) The relevancy of the expert witness's testimony.
Peter Luea is “board certified in family medicine” and “devoted a majority of [his] professional
time to the active clinical practice of family medicine.” Rebecca Schnepp was “a registered nurse”
who “devoted a majority of [her] professional time to the active clinical practice of nursing.”
Nothing in their affidavits or otherwise in the record suggests that either of these witnesses have
any experience or training related to urology. Therefore, because the trial court is afforded broad
discretion to determine whether a person is qualified to testify as an expert, the trial court did not
err by concluding that they were not qualified to testify as experts regarding what a reasonable
urologist would have done had the urologist been given the information withheld by defendant
Bohr. See Estate of Horn v Swofford, 334 Mich App 281, 287-288; 964 NW2d 904 (2020).
Moreover, plaintiff was explicitly told, after defendants initially sought summary disposition, that
a sworn statement from a urologist would be necessary in order to survive summary disposition.
Nevertheless, during the months between the denial of defendants’ initial motion for summary
disposition and the filing of the renewed motion, plaintiff did not obtain a statement from a
urologist. This further supports summary disposition.
Plaintiff argues that expert testimony was not necessary because the falsified medical
records speak for themselves. Various medical records were attached to plaintiff’s response to
defendant’s motion for summary disposition, and these suggest that defendant Bohr did falsify
medical records. For example, at 5:13 p.m. on November 8, defendant Bohr entered a note stating
that plaintiff “voided [a] small amount of urine.” Plaintiff, however, insisted at her deposition that
she did not urinate at all prior to being discharged. At 5:00 p.m., defendant Bohr entered a note
indicating that plaintiff had taken an orally administered dose of phenazopyridine. 2 Plaintiff
testified, however, that she was not given any pain medication. Plaintiff’s discharge checklist
contained notes from defendant Bohr indicating that plaintiff was not experiencing nausea, had
“voided,” and could tolerate oral fluids. At 3:01 p.m. and again at 4:55 p.m., defendant Bohr made
entries indicating that plaintiff denied being in pain. However, defendant Bohr admitted during
her deposition that plaintiff did tell her that she was in pain and that it was never documented.
Finally, notes prepared by Dr. Mark Shank, D.O. on November 11, 2017, the day plaintiff returned
to the hospital, indicated that plaintiff reported having been in constant pain since her procedure,
having been unable to tolerate food or fluids, and having only been able to pass small amounts of
blood when attempting to urinate. However, this is not enough to establish medical malpractice
without evidence connecting the misconduct to the damages. Thus, expert testimony was required
to establish that plaintiff would not have suffered but for defendant Bohr’s falsification of medical
records.
It appears from the record that defendant Bohr was dismissive of plaintiff’s state of being,
and the record supports plaintiff’s contention that she was discharged prematurely. Moreover, it
appears that while the reasons and state of mind are unclear, defendant Bohr entered false
information into plaintiff’s medical records. However, because the trial court did not abuse its
2
Phenazopyridine is used to relieve urinary tract discomfort.
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discretion by requiring the plaintiff to procure favorable testimony from a urologist to establish a
causal connection between defendant Bohr’s misconduct and plaintiff’s suffering, we must affirm.
Affirmed.
/s/ Noah P. Hood
/s/ James Robert Redford
/s/ Allie Greenleaf Maldonado
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