Marian HAGERMAN, widow, Plaintiff-Appellant,
v.
GENCORP AUTOMOTIVE, Defendant-Appellee.
Docket No. 194743.
Court of Appeals of Michigan.
Submitted May 10, 1996, at Lansing. Decided July 26, 1996, at 9:30 a.m. Released for Publication September 27, 1996.*624 Williams, Klukowski, Fotieo & Szczytko by Paul A. Williams, Grand Rapids, for Plaintiff-Appellant.
Smith, Haughey, Rice & Roegge by Lance R. Mather, Grand Rapids, for Defendant-Appellee.
Before SAWYER, P.J., and RICHARD ALLEN GRIFFIN and BANDSTRA, JJ.
ON REMAND
PER CURIAM.
In an opinion released on April 4, 1995, this Court affirmed the decision of the Worker's Compensation Appellate Commission (WCAC) denying plaintiff's claim for benefits. In particular, this Court held that the proximate cause standard contained in § 375(2) of the Worker's Disability Compensation Act, M.C.L. § 418.375(2); M.S.A. § 17.237(375)(2), applies in this case, even though there was no adjudication of worker's compensation liability before the death of plaintiff's husband. This Court also agreed with the WCAC that plaintiff had failed to demonstrate that her husband's death was proximately caused by any work-related injury. 209 Mich.App. 667, 531 N.W.2d 832 (1995).
Plaintiff applied to the Supreme Court for leave to appeal. In lieu of granting leave, by order dated April 23, 1996, the Supreme Court remanded to this Court for reconsideration in light of Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994). We once again affirm.
I
In Dedes, the Supreme Court reversed a decision by this Court holding that the use of the word "the" before the words "proximate cause" in the governmental immunity statute, M.C.L. § 691.1407(2)(c); M.S.A. § 3.996(107)(2)(c), limited recovery to cases where the conduct of the governmental employee was the sole proximate cause of the injury. The Supreme Court held that recovery may be had even where there are proximate causes of the injury other than the conduct of a governmental employee.
Although § 375(2) uses the phrase "the proximate cause," nothing in this Court's earlier opinion turns on the question whether *625 plaintiff's husband's injury was "the" proximate cause of his death. Instead, we[1] agreed with the WCAC that plaintiff had failed to prove that her husband's death was proximately caused by his employment. However, to avoid any misunderstanding and to comply with the spirit as well as the letter of the Supreme Court's remand order, we now provide a more detailed analysis of the proximate cause issue.
II.
Plaintiff's husband injured his back at work. After his last day of work in December 1989, he received conservative treatment that failed to resolve his symptoms. On March 7, 1990, he underwent a myelogram. According to the magistrate's opinion, plaintiff's husband was advised to drink plenty of water to reduce possible side effects of the myelogram. He did so both before and after the procedure. According to Dr. Dotson, described as an academic physician specializing in the disciplines of internal medicine, occupational medicine, and toxicology, plaintiff's husband inadvertently overhydrated himself. His doing so had fatal consequences because at the time of his myelogram he was undergoing treatment for a longstanding high blood pressure problem, not found to be related to work, with medications that included a diuretic. The diuretic eliminated the excess fluids, resulting in a depletion of his sodium level. The depleted sodium caused a convulsive disorder or seizure, resulting in aspiration of gastric contents. That in turn set off aspiration pneumonia, which in turn caused adult respiratory distress syndrome. The syndrome combined with low sodium level resulted in death by cardiac arrest on March 28, 1990.
The WCAC held that plaintiff's husband's death did not flow in a natural and continuous sequence from his back injury, i.e., was not proximately caused by his back injury, but rather was the result of the use of high blood pressure medication. We hold that the WCAC reached the correct result.
An employer is liable for additional injuries or complications that result when an employee submits to medical procedures necessitated by work-related injuries. Oleszek v. Ford Motor Co., 217 Mich. 318, 186 N.W. 719 (1922). Such consequential injuries do not establish a new injury date, but rather relate back to the original date. Sanders v. General Motors Corp., 137 Mich.App. 456, 459, 463, 358 N.W.2d 611 (1984).
In light of these authorities, it is clear that plaintiff's husband's work-related back injury was a cause in fact of his death. However, we hold that his back injury and subsequent myelogram were not a proximate cause of his death for the following reasons.
When a number of factors contribute to produce an injury, one actor's negligence will not be considered a proximate cause of harm unless it was a substantial factor in producing the injury. Brisboy v. Fibreboard Corp., 429 Mich. 540, 547, 418 N.W.2d 650 (1988). Among the factors to be considered is whether the actor's conduct created a force or series of forces that were in continuous and active operation up to the time of the harm, or created a situation harmless in itself unless acted upon by other forces for which the actor is not responsible. Poe v. Detroit, 179 Mich.App. 564, 576-577, 446 N.W.2d 523 (1989), citing 2 Restatement Torts, 2d, § 433, p. 432. Plaintiff's husband's back injury and myelogram were harmless in themselves. Death resulted only because of the unfortunate coincidence that he was taking a diuretic at the same time that he was overhydrating himself in preparation for and after the myelogram. We conclude that the back injury and myelogram did not constitute a substantial factor in producing the injury, and so did not proximately cause the injury.
Alternatively, we note that the Supreme Court has quoted with approval the following language from a treatise on torts, which concludes that the notion of proximate cause adds to the notion of cause in fact a policy component akin to the issue of duty.
*626 "Unlike the fact of causation, with which it is often hopelessly confused, this is primarily a problem of law. It is sometimes said to depend on whether the conduct has been so significant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that they depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred.
* * * * * *
It is quite possible to state every question which arises in connection with `proximate cause' in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur?" [McMillan v. State Hwy. Comm., 426 Mich. 46, 51-52, 393 N.W.2d 332 (1986), quoting Prosser & Keeton, Torts (5th ed), § 42, pp. 272-274.]
We hold that as a matter of policy defendant should not be held to have a duty to protect plaintiff's husband from the harm that he suffered in the instant case. Although defendant would have been liable for the foreseeable additional injuries or complications that could have resulted from decedent submitting to a myelogram or other medical procedures, defendant should not be held to be an insurer against unforeseeable events.
Finally, we note that in McMillan, supra, at 63, n. 8, 393 N.W.2d 332 the Supreme Court again quoted with approval the following from Prosser & Keeton:
"If the facts bearing upon other aspects of `proximate cause' (that is, aspects other than causation in fact) are not in dispute and reasonable persons could not differ about the application to those facts of the legal concept of `proximate cause,' the court determines that issue. But if reasonable persons could differ, either because relevant facts are in dispute, or because application of the legal concept of `proximate cause' to the case at hand is an evaluative determination as to which reasonable persons might differ, the issue of `proximate cause' is submitted to the jury with appropriate instructions on the law."
Even if the WCAC did not reach the correct result as a matter of law, we believe the issue of proximate cause in this case is one about which reasonable persons could differ. We would therefore be constrained to affirm the decision of the WCAC in light of the deference due the WCAC in the performance of its administrative appellate review. Holden v. Ford Motor Co., 439 Mich. 257, 269, 484 N.W.2d 227 (1992).
Affirmed.
BANDSTRA, Judge (concurring).
I concur in the opinion of the panel and write separately only to point out that we are not here addressing whether the holding of Dedes v. Asch, 446 Mich. 99, 521 N.W.2d 488 (1994), applies to the statute at issue in this case. In Dedes, the majority and dissenting justices disagreed over the meaning of "the proximate cause" in the statute creating governmental immunity from tort liability statute, M.C.L. § 691.1407(2)(c); M.S.A. § 3.996(107)(2)(c). Dedes, supra at 104, 521 N.W.2d 488. The majority concluded that use of the article "the" did not indicate that the Legislature intended that the government would be immune from tort liability unless an employee's gross negligence was the sole proximate cause of injury or damage but, instead, concluded that liability could be imposed if a government employee's gross negligence was one of a number of proximate causes of injury or damage. The majority came to this conclusion largely as a result of the legislative history of the statute under consideration. Id. at 113-119, 521 N.W.2d 488. Because we have today concluded that Keith Hagerman's back injury did not proximately cause his death, we have not had to consider the meaning of "the proximate cause" in the relevant section of the Worker's Disability Compensation Act, M.C.L. § 418.375(2); M.S.A. § 17.237(375)(2), or consider whether the legislative history of this section would require a result similar to that reached by the majority in Dedes.
NOTES
[1] Judge Griffin has been assigned to this case on remand in place of Judge R.B. Burns, who signed the earlier opinion.