Circuit Court LC No. 2013-000500-NH
Before: Boonstra, P.J., and Ronayne Krause and Swartzle, JJ.
medical-malpractice suit, plaintiff Rolla Mitchell sued
defendant Bernard Mason Smith III, M.D., and the doctor's
former employer, defendant Kalamazoo Anesthesiology, PC.
Plaintiff claimed that Dr. Smith negligently performed
certain post-operative services that permanently injured the
phrenic nerve in plaintiff's shoulder. The jury returned
a verdict in favor of defendants, and plaintiff appealed.
issue at trial was whether an ultrasound image sought to be
introduced by the defense was, in fact, an accurate scan of
the ultrasound image taken of plaintiff's shoulder on the
day of surgery. The image purported to show that Dr. Smith
properly placed the needle and catheter while performing the
post-operative services on plaintiff. Outside the presence of
the jury, the trial judge held that defendants had properly
authenticated the image and, as a result, plaintiff's
counsel was precluded from presenting evidence or argument to
the jury that the proffered image was not, in fact, an
accurate image of plaintiff's shoulder.
explained below, we conclude that the trial court properly
served its gatekeeping role by admitting the ultrasound image
as authentic under Michigan Rule of Evidence 901. Yet,
authentication under MRE 901 is a threshold matter that goes
to the admissibility of evidence, not the ultimate weight to
be given that evidence. By precluding plaintiff's counsel
from attacking the genuineness and reliability of the
ultrasound image before the jury, the trial judge overstepped
his gatekeeping role and, instead, intruded on the jury's
role as fact-finder. Given the importance of the ultrasound
image to this dispute, we reverse and vacate the judgment and
remand for further proceedings.
Plaintiff's Shoulder Surgery and Post-Operative
2011, plaintiff had surgery on his right shoulder at Borgess
Medical Center in Kalamazoo, Michigan. Defendant Kalamazoo
Anesthesiology provided anesthesiology services for Borgess
under contract. Both Dr. Phyllis Lashley and Dr. Smith worked
for Kalamazoo Anesthesiology. Dr. Lashley provided
anesthesiology services to plaintiff during his surgery, and
defendant Dr. Smith provided post-operative services,
including performing an "interscalene nerve block and
continuous catheter placement" on plaintiff's
shoulder. In October 2013, plaintiff sued defendants for
malpractice, alleging, among other things, that Kalamazoo
Anesthesiology failed to obtain plaintiff's informed
consent and Dr. Smith negligently conducted the procedure.
The case proceeded to trial over several days in February
trial, Dr. Lashley testified that she did not
"specifically remember" interacting with plaintiff
before or during his surgery, but records showed that she
signed his anesthesia pre-evaluation form, and a notation on
the form indicated that she discussed the use of an
interscalene block with him to manage his pain after the
surgery. At trial, Dr. Brian Kiessling explained that an
interscalene block was a procedure where the physician uses a
needle to administer a local anesthetic around the brachial
plexus, which provides anesthesia to the patient for varying
periods of time.
Smith testified that he performed the interscalene block and
catheter placement on plaintiff after the shoulder surgery.
Dr. Smith then attached a pain pump to the catheter to help
plaintiff manage his pain. Dr. Smith stated that part of his
training included being careful not to puncture the phrenic
nerve during the interscalene block. He noted that plaintiff
was talking throughout the procedure and that there was no
indication that plaintiff had suffered a phrenic nerve injury
at that time.
that day, plaintiff had problems breathing, a common symptom
of phrenic nerve injury. He returned to the hospital and
sought follow-up medical advice and treatment. Physicians who
subsequently treated plaintiff testified that his phrenic
nerve was dysfunctional, that it was the cause of his
shortness of breath, and that his condition was not likely to
The Ultrasound Image
crucial factual dispute at trial was whether Dr. Smith
properly performed the interscalene block on plaintiff after
the shoulder surgery. Plaintiff argued that Dr. Smith
breached the standard of care by placing the needle or
catheter in such a way as to directly damage his phrenic
nerve. Dr. Smith, by contrast, argued that he properly placed
the needle and catheter in the interscalene groove near the
brachial plexus and that plaintiff was just one of the
unfortunate patients-1 in 1, 000 ...