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
CHARISE AHEARN, Personal Representative of the UNPUBLISHED
ESTATE OF STEVEN JOHN AHEARN, January 18, 2024
Plaintiff-Appellant,
v No. 364366
Macomb Circuit Court
HENRY FORD HEALTH SYSTEM, doing business LC No. 2021-001545-NH
as HENRY FORD MACOMB HOSPITAL, HENRY
FORD MACOMB HOSPITAL CORPORATION,
ST. CLAIR ORTHOPAEDICS AND SPORTS
MEDICINE, PC, RICHARD TYSON PERRY, and
JEAN ANN EDMONSON,
Defendants-Appellees.
Before: GLEICHER, P.J., and BORRELLO and SHAPIRO, JJ.
PER CURIAM.
In this medical malpractice case, plaintiff appeals by right an order granting summary
disposition under MCR 2.116(C)(10) (no genuine issue of material fact) to defendants. For the
reasons set forth in this opinion, we reverse in part and remand for further proceedings.1
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2019, Steven John Ahearn (decedent) underwent a surgical procedure called a
lumbar laminectomy. During this procedure, the surgeon, who is not a party to this case, placed a
drain tube in decedent to allow for the drainage of postoperative fluids. Defendant Dr. Richard
1
Plaintiff’s complaint asserted numerous claims, including professional negligence or malpractice,
ordinary negligence, gross negligence, and willful or wanton misconduct. The trial court granted
summary disposition to defendants with respect to all of these claims. On appeal, plaintiff
challenges only the dismissal of the claim pertaining to defendant Edmonson’s alleged malpractice
(and the vicarious liability of the other defendants for that malpractice), so we only reverse in part.
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Tyson Perry, a partner in defendant St. Clair Orthopaedics, the same practice as the surgeon who
performed the procedure, provided decedent’s inpatient postoperative care. Dr. Perry was also the
supervising physician for Jean Ann Edmonson, a certified nurse practitioner and employee of St.
Clair Orthopaedics. Dr. Perry was required to cosign Edmonson’s progress notes as a matter of
hospital policy. Dr. Perry and Edmonson saw plaintiff together during their hospital rounds.
Two days after decedent’s surgery, Edmonson made notes in decedent’s hospital record
indicating his drain tube was discontinued and removed. Specifically, Edmonson’s notes stated,
in relevant part: “D/c [discontinue] drain” and “Drain out[.]” When questioned at her deposition
about the note indicating the drain was discontinued and removed, Edmonson testified she was
likely the person who decided the drain could be removed, but could not remember whether she
was the person who actually removed it. Edmonson averred the drain could have been removed
by her or a registered nurse who was not a nurse practitioner, but, again, she did not know who
actually removed the drain. Both Edmonson and Dr. Perry testified Dr. Perry was not the one who
removed the drain.
Months later, decedent saw another orthopedic surgeon, Dr. Graziano, complaining of
worsening back pain. Dr. Graziano’s physical examination of decedent revealed swelling in the
area of the surgical incision from his laminectomy. An MRI indicated moderate stenosis was still
present, and there was fluid collected in the area where the laminectomy was performed. Dr.
Graziano performed a fusion surgery on decedent, and, at the outset of the procedure, found and
removed approximately “4 inches of broken drain tubing” from decedent’s body. Dr. Graziano’s
operative notes stated: “There was a lot of scar tissue around this piece of drain that almost formed
a large granuloma ball.” Dr. Graziano dissected the granuloma ball to expose decedent’s spine for
the fusion, but did not remove the resultant pieces, because they would soften and heal once the
drain tube was removed. Dr. Graziano did not find evidence of an active infection, and, once the
drain tube piece was removed, completed the fusion surgery.
After commencing the present action, decedent died from causes unrelated to the alleged
malpractice, and Charise Ahearn was substituted as plaintiff as the personal representative of
decedent’s estate. Decedent’s complaint alleged professional negligence or malpractice on the
part of Dr. Perry and Edmonson, including that Edmonson breached the standard of care by
breaking or damaging the drain tube when removing it and failing to address the issue, and that
Dr. Perry breached the standard of care by failing to discover and address the broken drain tube
and failing to properly supervise Edmonson. Decedent asserted the Henry Ford defendants and
St. Clair Orthopaedics were vicariously liable for the acts or omissions of their agents or
employees, including Dr. Perry and Edmonson. Decedent alleged the doctrine of res ipsa loquitur
applied, because a foreign object is not ordinarily left inside a patient’s body absent someone’s
negligence, and defendants had exclusive control of an instrumentality that caused the foreign
object to be left inside decedent’s body. Decedent also alleged claims of gross negligence or
intentional, willful, or wanton conduct, as well as ordinary negligence, all in connection with the
same underlying allegations regarding the broken drain tube.
Defendants St. Clair Orthopaedics, Dr. Perry, and Edmonson moved for summary
disposition under MCR 2.116(C)(8) and (10), which the Henry Ford defendants joined. The trial
court granted the motion under MCR 2.116(C)(10) and dismissed plaintiff’s complaint with
prejudice. The trial court dismissed the claims for ordinary negligence, gross negligence, and
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willful or wanton misconduct because the case sounded in medical malpractice and there was no
evidence Dr. Perry or Edmonson exhibited deliberate indifference or recklessness demonstrating
a substantial lack of concern for whether decedent was injured. As to the medical malpractice
claim, the trial court found “no evidentiary basis from which to conclude defendant Edmonson
improperly removed the drain tubing or had any reason to know the tubing had broken off inside
[decedent].” The trial court also concluded that, “[g]iven the lack of evidence that defendant
Edmonson proximately caused any injury to [decedent], defendant Dr. Perry cannot be liable for
failing to properly supervise her.” Further, “there [was] no basis for finding defendant Dr. Perry
directly liable for malpractice.” Lastly, the trial court determined plaintiff could not rely on the
doctrine of res ipsa loquitur to establish negligence for Dr. Perry and Edmonson. Dr. Perry and
Edmonson were thus entitled to summary disposition. The Henry Ford defendants and St. Clair
Orthopaedic were likewise entitled to summary disposition, because the claims against them were
premised on the imposition of vicarious liability for the acts of Dr. Perry and Edmonson.
II. ANALYSIS
On appeal, plaintiff argues the trial court erred by granting summary disposition to
defendants with respect to the alleged malpractice of Edmonson because there was enough
evidence to establish a genuine issue of material fact regarding whether Edmonson removed the
drain tube and breached the standard of care in doing so. We agree.2
“The plaintiff in a medical malpractice action bears the burden of proving: (1) the
applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate
causation between the alleged breach and the injury.” Cox v Hartman, 322 Mich App 292, 299;
911 NW2d 219 (2017) (quotation marks and citation omitted). Malpractice claims may be asserted
“against any licensed healthcare professional, including nurses.” Id. at 300. “In general, expert
testimony is necessary in a malpractice action to establish the applicable standard of care and the
defendant’s breach of that standard.” Id. Expert testimony must have a factual basis and cannot
be premised on speculation. Albro v Drayer, 303 Mich App 758, 765; 846 NW2d 70 (2014).
“Disagreements pertaining to an expert witness’s interpretation of the facts are relevant to the
weight of that testimony and not its admissibility.” Lenawee Co v Wagley, 301 Mich App 134,
166; 836 NW2d 193 (2013).
The evidence presented by plaintiff supports a reasonable inference that Edmonson, a nurse
practitioner, removed decedent’s drain tube. Edmonson made notes in decedent’s hospital record
two days after his surgery indicating his drain tube had been discontinued and removed. Edmonson
testified she likely made the decision to remove the drain tube but the drain tube could have been
2
We review a trial court’s decision on a motion for summary disposition de novo. See Johnson v
Vanderkooi, 502 Mich 751, 761; 918 NW2d 785 (2018). Motions for summary disposition under
MCR 2.116(C)(10) test “the factual sufficiency of a claim.” Id. “When reviewing such a motion,
a trial court considers affidavits, pleadings, depositions, admissions, and other evidence submitted
by the parties . . . in the light most favorable to the party opposing the motion.” Id. (quotation
marks and citation omitted). “A genuine issue of material fact exists when the record ‘leave[s]
open an issue upon which reasonable minds might differ.’ ” Id. (citation omitted).
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removed by herself or a registered nurse. Edmonson could not recall if she or a registered nurse
removed the drain tube. Further, in response to plaintiff’s request for admissions, the Henry Ford
defendants stated there was “no evidence to suggest that a registered nurse discontinued
[decedent’s] drain on June 5, 2019[,]” and in response to an interrogatory asking for a more
detailed explanation regarding the responses to the request for admissions, the Henry Ford
defendants further explained, in relevant part: “These Defendants, after reasonable inquiry, have
discovered no evidence that the drain was removed by the nursing staff” and that “the nurse
assigned to [decedent] at the time” also did not remove the drain tube.3 Overall, the evidence could
support a reasonable inference by the trier of fact that Edmonson removed the drain tube.4
Next, there was sufficient evidence to establish a genuine issue of material fact regarding
whether Edmonson breached the standard of care in connection with the removal of the drain tube.
Plaintiff’s nurse practitioner expert, Donald Bucher, D.N.P., R.N., testified that “there was a failure
to recognize when that drain came out that there was any damage to the drain, [and] that there was
likely residual tubing still in the patient.” Bucher estimated he had removed approximately 50
drain tubes in his career, and he knew how to properly do so.5 Given Dr. Graziano’s discovery of
four inches of broken drain tube in decedent’s body, Bucher believed the tube removed from
decedent two days after his laminectomy would be frayed or appear abnormal. Bucher testified
that when a drain tube breaks, it is often “frayed at the end or there’s evidence that the tubing has
been stretched or there’s damage at that end of that tubing.” Because of this, Bucher opined
Edmonson should have known there was a broken piece of the drain tube left in decedent’s body,
and upon removing the drain tube, Edmonson should have inspected it for damage. Edmonson
3
Defendants argue the Henry Ford defendants’ admissions are not admissible against other
defendants, but defendants fail to address the fact that the Henry Ford defendants also provided
the pertinent information in their response to plaintiff’s interrogatory.
4
Plaintiff also refers to testimony by one of plaintiff’s experts, Sharon Ponting, R.N., that “[t]here
was no evidence that there was a physician’s order or an LIP [licensed independent practitioner]
order [to discontinue or remove the drain tube], and a nurse does not remove a drain without an
order.” Defendants note plaintiff did not rely on this portion of Ponting’s testimony below, and
Ponting has never worked in Michigan, let alone at Henry Ford Macomb Hospital. As explained,
however, there was enough evidence to allow a reasonable inference that Edmonson removed the
drain tube even without considering this testimony.
5
Defendants note Bucher did not testify about any experience with broken drain tubes.
Nonetheless, Bucher’s testimony indicated he had experience in removing about 50 drain tubes in
his career and he knew how to properly do so. Bucher possessed the minimum qualifications
necessary to testify as a standard-of-care expert. As the Supreme Court has noted, limitations in
an expert’s qualifications “are relevant to the weight, not the admissibility, of [their] testimony.”
Gilbert v DaimlerChrysler Corp, 470 Mich 749, 788-789; 685 NW2d 391 (2004). “Gaps or
weaknesses in the witness’s expertise are a fit subject for cross-examination, and go to the weight
of his testimony, not its admissibility. The extent of a witness’s expertise is usually for the jury to
decide.” Surman v Surman, 277 Mich App 287, 309-310; 745 NW2d 802 (2007) (quotation marks
and citations omitted).
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should have suspected a piece of the drain tube remained in decedent’s body and ordered imaging
to determine if this was the case.
On the basis of Bucher’s experience in removing drain tubes, and his review of the facts in
this case, including Dr. Graziano’s discovery of four inches of broken drain tube while operating
on decedent, Bucher opined the tube removed from decedent two days after his laminectomy
would have been frayed or appeared abnormal or irregular when removed. Bucher’s opinion that
Edmonson should have realized or suspected that a broken piece of drain tube was left in
decedent’s body and should have ordered imaging tests was properly based on the facts of the case,
reasonable inferences therefrom, and Bucher’s professional experience.6 Therefore, a genuine
issue of material fact exists regarding whether Edmonson breached the standard of care in
connection with the removal of the drain tube. The trial court thus erred in granting summary
disposition with respect to this theory of malpractice.
As an alternative ground for affirmance, defendants assert plaintiff cannot establish
damages. We disagree.
As noted, an injury is an element of a medical malpractice claim. Cox, 322 Mich App
at 299. There was evidence decedent suffered an injury. While the remaining drain tube in
decedent’s body was not the cause of his subsequent fusion surgery, and there was no evidence of
an active infection, given the retention of a foreign object inside decedent’s body, and the
formation of scar tissue which “almost formed a large granuloma ball,” decedent suffered an
injury.
Defendants cite Henry v Dow Chem Co, 473 Mich 63, 75-76; 701 NW2d 684 (2005), for
the proposition that both an injury and damages must be shown in a tort action, and the remaining
tube was not the cause of decedent’s back pain. However, the evidence supports a reasonable
inference that the presence inside decedent’s body of a four-inch piece of drain tube, and the scar
tissue surrounding it, contributed to decedent’s pain. When decedent saw Dr. Graziano before his
fusion surgery, he complained of worsening back pain, and Dr. Graziano’s physical examination
revealed large swelling in the area of the laminectomy incision. An MRI indicated that moderate
stenosis was still present and there was fluid collected in the area where the surgery was performed.
The ball of scar tissue thus appears to have contributed to the swelling at the site where the
laminectomy was performed, and defendants’ argument there is no evidence of damages fails.
6
On appeal, plaintiff also relies on some of Ponting’s testimony to argue there was evidence that
Edmonson breached the standard of care. As defendants note, however, plaintiff conceded both
below and on appeal that Ponting was not a standard-of-care expert. As a registered nurse, Ponting
was not qualified to testify on the standard of care of a nurse practitioner. See Cox, 322 Mich App
at 305 (noting that “[t]he health profession of a nurse and the health profession of a nurse
practitioner are different” and one cannot testify on the standard of care with respect to the other).
As we already explained, however, Bucher’s testimony was sufficient to establish a genuine issue
of material fact whether Edmonson breached the standard of care.
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Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
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