Medical malpractice; Due process; Whether summary disposition was granted based on an argument not raised in the motion; Causation; Badalamenti v William Beaumont Hosp-Troy; Motion for reconsideration; Deep vein thrombosis (DVT); Pulmonary embolism (PE)

The court rejected plaintiff-estate’s due process argument, concluding the trial court did not grant defendants summary disposition based on an argument not raised in their motion. Further, “plaintiff failed to establish a question of fact whether the alleged breach” (failure to refer the decedent, Jones, for an ultrasound to evaluate him for DVTs) was a proximate cause of Jones’s death. And given that there was no error in granting defendants summary disposition, there was no basis to grant plaintiff’s motion for reconsideration. The 49-year-old Jones went into cardiac arrest and died two days after undergoing bariatric surgery. It was determined his cause of death was PE due to DVT. Defendant-doctor (Zarghami) was the cardiologist who cleared Jones for surgery. In rejecting plaintiff’s due process argument, the court concluded “defendants’ original motion for summary disposition provided plaintiff with sufficient notice that defendants were seeking summary disposition on the ground of causation, and that plaintiff was required to present evidence to establish factual support for” its theory to avoid dismissal. They “challenged plaintiff’s ability to prove malpractice by Dr. Zarghami for failing to diagnose DVT during the cardiac assessment by arguing that there was no competent evidence that Jones had a DVT condition at the time of his evaluation. The trial court’s ruling addressed whether plaintiff could produce competent evidence to establish factual support for [its] claim. Nothing about the trial court’s ruling was outside the scope of defendants’ original motion.” As to causation, the court found this case was “similar to Badalamenti because plaintiff’s experts premised their testimony on the assumption that Jones possibly had DVTs in [3/18], when he was seen by Dr. Zarghami, given his clinical symptoms. However, it could not be determined whether he actually had DVTs at that time, despite” testimony by plaintiff’s expert “that it is not uncommon for morbidly obese people to have DVTs. That an untrasound performed in [3/18] would have revealed the presence of DVTs is pure speculation, plaintiff having produced no substantive evidence that they were in fact present at that time.” The court determined plaintiff did not “refute the autopsy evidence and [defendants’ experts’] explanations of how that evidence demonstrated that the DVT that caused Jones’s PE was of recent origin.” Affirmed.