Circuit Court LC No. 16-000453-NH
Before: Boonstra, P.J., and Meter and Fort Hood, JJ.
medical malpractice case, plaintiff Zanetta Hutchinson
appeals by delayed leave granted the trial court's order
granting summary disposition in favor of defendants Ingham
County Health Department, Carol Salisbury, N.P., and Peter
Gulick, D.O., pursuant to MCR 2.116(C)(7). For the reasons
set forth in this opinion, we reverse and remand for
proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
first amended complaint, plaintiff, a 43-year-old single
mother of a young child, unemployed and receiving Social
Security disability benefits, alleged that she was a patient
of the Ingham County Health Department and was treated by
Salisbury, a nurse practitioner, and Dr. Gulick, a physician
specializing in internal medicine. Plaintiff further alleged
that when she informed Salisbury that she had a lump in her
left breast in the late summer of 2013, Salisbury, supervised
by Gulick, ordered a mammogram for plaintiff, and a mammogram
was performed on September 4, 2013. Plaintiff's first
amended complaint alleged that she underwent a "MAMMO
SCREEN DIGITAL W CAD PANEL BILAT" at Sparrow Health
System, and that the radiologist, Alfredo P. La Fe M.D.,
stated with regard to the results:
The tissue of both breasts is heterogeneously dense. This may
lower the sensitivity of mammography. . . . There is a benign
appearing calcification in the right breast. There are also
benign appearing calcifications in the left breast. No
significant masses, calcifications or other finding [sic] are
seen in either breast.
to the first amended complaint, Dr. Gulick reviewed and
"electronically signed" the mammogram results on
September 5, 2013. Plaintiff alleged that Dr. Gulick was
negligent in not providing appropriate care and treatment to
plaintiff by not monitoring and managing her treatment
properly when she complained of a lump in her breast, and by
not ordering a diagnostic mammogram for plaintiff as opposed
to a screening mammogram. Specifically, plaintiff alleged,
among other things, that Dr. Gulick ought to have ordered a
biopsy performed on plaintiff once her mammogram showed
"suspicious calcifications in her left breast" and
that Dr. Gulick was negligent in his supervision of
Salisbury. Plaintiff made similar allegations against
Salisbury, and alleged that Salisbury failed to ensure that
"[plaintiff's] physician [was] properly informed of
[her] breast complaints and mammogram
results[.]" After plaintiff moved to Arkansas in 2014,
she sought medical care at the University of Arkansas for
Medical Sciences (UAMS). On June 1, 2015, a mammogram of
plaintiff's left breast was performed, and following a
June 9, 2015 biopsy, plaintiff was diagnosed with breast
cancer on June 15, 2015. The parties do not dispute that
plaintiff mailed her notice of intent in this case on
December 4, 2015. MCL 600.2912b(1), (2).
deposition in this case, plaintiff recalled that in August of
2013, she attended an appointment with Salisbury, and
Salisbury ordered a mammogram for plaintiff after feeling a
knot in plaintiff's left breast. According to plaintiff,
the knot she described "was never tender, . . . it never
hurt; it was just growing." While plaintiff would do her
own monthly breast exams, it was her partner at the time that
discovered the knot in her left breast. In plaintiff's
words, her partner observed "a small-like pea shaped
knot in [her] left breast." Plaintiff described that
during her initial visit with Salisbury concerning the
lump in her left breast, "[Salisbury] had me lay back,
and she did the breast exam and she felt the lump."
After Salisbury felt the lump, plaintiff recalled that
"[Salisbury] said that we would do a mammogram."
Plaintiff denied that she felt any pain or tenderness when
Salisbury was examining the lump. Plaintiff further described
the ensuing events as follows:
So I went to [Sparrow Hospital] and I did the mammogram as
scheduled and waited on the results to come back. So at my
next checkup appointment, [Salisbury] told me that it was
calcifications from me delivering my son late at 40. And they
don't prescribe dry up breast milk pills anymore, so
that's what she told me at 40. So I took her word as what
it was. I know no different. I'm not a doctor.
to plaintiff, she had her mammogram on September 4, 2013. At
the time that she had her mammogram, plaintiff was not
experiencing pain, tenderness or discharge from her left
breast. Plaintiff did not discuss her mammogram results with
Dr. Gulick because he was not "the doctor that actually
[was assigned] to be [administrator]; [Salisbury] was."
According to the records of the Ingham County Health
Department, plaintiff did not return to see Salisbury
following her mammogram until November of 2013, but plaintiff
could not independently recall the date of her follow-up
appointment with Salisbury. However, plaintiff was adamant
during her deposition testimony that Salisbury informed her
that the lump in her breast "was just
calcifications." Plaintiff testified that she was eager
to follow up with Salisbury following her mammogram because
"I wanted to know what the results were for the lump
because the lump was still in my breast growing; it was
getting bigger, and I wanted to know what it was."
her September 4, 2013 mammogram, plaintiff continued to
conduct her own self-examinations of her left breast, and the
following colloquy took place between plaintiff and defense
counsel on this subject:
Q. And you continued to do monthly self-exams?
A. Right. I continued to feel the knot every day.
Q. So at this point, you weren't doing it
monthly, you're doing it daily?
A. Yeah. I am, like, touching that spot every day.
Q. And it was actually getting bigger?
Q. So between September, when you had the mammogram,
and November, which would've been the next time that you
actually saw NP Salisbury, every day you noticed this lump
and you noticed it was actually getting bigger?
A. Well, right. When I did see [Salisbury] again,
the knot had gotten bigger. And she felt it, and she said,
"Yes. But it does seem to be bigger, but it's still
- I just think it's calcifications because you had a baby
at 40, and they don't give breastmilk pills
anymore." So you know? What can I say? I'm not a
doctor. I had to take her word for it.
plaintiff could not recall the exact specifics of her
conversation with Salisbury during the appointment in which
they discussed the results of her September 4, 2013
mammogram, she was very clear that Salisbury told her that
the lump in her left breast was "calcifications."
Plaintiff also recalled that Salisbury told her that her
breast tissue was dense, that the lump was benign, and that
made it difficult for "them to actually view what
exactly [the lump] was." Plaintiff did not have any
follow-up treatment with regard to the lump. Plaintiff denied
that Salisbury informed her that she should return for a
repeat mammogram in a year. In plaintiff's words,
"[t]hey ruled it as calcifications, and they left it at
that. And the lump continued to grow, and I continued to show
her. They never did nothing else other than what they had did
saw Salisbury three more times before she moved to Arkansas
on an unspecified date in 2014. Each time, plaintiff told
Salisbury that the lump was getting bigger, and Salisbury
would feel the lump but "[Salisbury] did nothing."
According to plaintiff, Salisbury acknowledged during their
appointments that the lump did appear to be growing.
Plaintiff did not do any independent research on the subject
of calcifications, she did not talk to anyone else about the
lump in her breast and she did not consult with any other
doctors about the issue. While the lump continued to grow,
plaintiff did not experience any tenderness, pain or
discharge. Plaintiff saw Dr. Gulick on February 14, 2014, for
a reason unrelated to the lump in her breast but they did not
discuss the lump in her breast or her mammogram results.
plaintiff moved to Little Rock, Arkansas, she began to treat
with Dr. Moses and during her first appointment on May 1,
2015, plaintiff told Dr. Moses about the lump in her breast
and Dr. Moses ordered a mammogram. Plaintiff described the
first appointment with Dr. Moses as follows:
Well, [Dr. Moses] did the breast exam, and she noticed the
mass; and that is what she called it. And she said that she
was unsure and got a little worried about that. And it was
pretty big, and she wanted to get it checked out. So she
referred me for a mammogram, and they took it from there.
to the record, plaintiff's last appointment with
Salisbury was in June of 2014, and she did not consult with
any other doctors before seeing Dr. Moses on May 1, 2015.
Defense counsel continued to question plaintiff as follows
regarding her initial visit with Dr. Moses in Little Rock:
Q. And did [Dr. Moses] tell you what she was worried
A. Not exactly. Just that the mass was - how big the
mass was. She wanted to see what it was because it was kind
of huge for my little breast. It was a pretty big tumor in
Q. Okay. Did she say to you that she was concerned
it might be breast cancer?
A. No, she didn't say that. She just said she
was concerned and she wanted to see what it was.
Q. Were you concerned that it might be breast
A. I was concerned that it could've been
anything; you know?
Q. Was cancer one of the things you were concerned
A. Well, yeah. It don't [sic] run in my family
in the girls, but yeah; you know?
Q. Just living in our society that is something