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Mitchell v. Kalamazoo Anesthesiology, PC

Court of Appeals of Michigan

August 24, 2017

ROLLA MITCHELL, Plaintiff-Appellant,

         Kalamazoo Circuit Court LC No. 2013-000500-NH

          Before: Boonstra, P.J., and Ronayne Krause and Swartzle, JJ.

          Swartzle, J.

         In this 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.

         One key 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.

         As 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.

         I. BACKGROUND

         A. Plaintiff's Shoulder Surgery and Post-Operative Complications

         In May 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 2016.

         At 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.

         Dr. 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.

         Later 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 improve.

         B. The Ultrasound Image

         One 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 ...

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