Background Facts
In June 2019, Steven John Ahearn (decedent) underwent a surgical procedure called a lumbar laminectomy. During this procedure, the surgeon, who was not a party to the Michigan medical malpractice case, placed a drain tube in decedent to allow for the drainage of postoperative fluids. Defendant Dr. Richard Tyson Perry, a partner in defendant St. Clair Orthopaedics, the same practice as the surgeon who performed the procedure, provided decedent’s inpatient postoperative care. Dr. Perry was also the supervising physician for Jean Ann Edmonson, a certified nurse practitioner and employee of St. Clair Orthopaedics. Dr. Perry was required to cosign Edmonson’s progress notes as a matter of
hospital policy. Dr. Perry and Edmonson saw plaintiff together during their hospital rounds.
Two days after decedent’s surgery, Edmonson made notes in decedent’s hospital record indicating his drain tube was discontinued and removed. Specifically, Edmonson’s notes stated, in relevant part: “D/c [discontinue] drain” and “Drain out[.]” When questioned at her deposition about the note indicating the drain was discontinued and removed, Edmonson testified she was likely the person who decided the drain could be removed, but could not remember whether she was the person who actually removed it. Edmonson averred the drain could have been removed by her or a registered nurse who was not a nurse practitioner, but, again, she did not know who actually removed the drain. Both Edmonson and Dr. Perry testified Dr. Perry was not the one who removed the drain.
Months later, decedent saw another orthopedic surgeon, Dr. Graziano, complaining of worsening back pain. Dr. Graziano’s physical examination of decedent revealed swelling in the area of the surgical incision from his laminectomy. An MRI indicated moderate stenosis was still present, and there was fluid collected in the area where the laminectomy was performed. Dr. Graziano performed a fusion surgery on decedent, and, at the outset of the procedure, found and removed approximately “4 inches of broken drain tubing” from decedent’s body. Dr. Graziano’s operative notes stated: “There was a lot of scar tissue around this piece of drain that almost formed a large granuloma ball.” Dr. Graziano dissected the granuloma ball to expose decedent’s spine for the fusion, but did not remove the resultant pieces, because they would soften and heal once the drain tube was removed. Dr. Graziano did not find evidence of an active infection, and, once the drain tube piece was removed, completed the fusion surgery.
The trial court found “no evidentiary basis from which to conclude defendant Edmonson improperly removed the drain tubing or had any reason to know the tubing had broken off inside [decedent].” The trial court also concluded that, “[g]iven the lack of evidence that defendant Edmonson proximately caused any injury to [decedent], defendant Dr. Perry cannot be liable for failing to properly supervise her.” The trial court therefore granted summary judgment to defendants, from which plaintiff appealed.
The State of Michigan Court of Appeals (“Michigan Appellate Court”) stated in its unpublished Per Curiam opinion dated January 18, 2024: “The evidence presented by plaintiff supports a reasonable inference that Edmonson, a nurse
practitioner, removed decedent’s drain tube. Edmonson made notes in decedent’s hospital record two days after his surgery indicating his drain tube had been discontinued and removed. Edmonson testified she likely made the decision to remove the drain tube but the drain tube could have been removed by herself or a registered nurse. Edmonson could not recall if she or a registered nurse removed the drain tube. Further, in response to plaintiff’s request for admissions, the Henry Ford defendants stated there was “no evidence to suggest that a registered nurse discontinued [decedent’s] drain on June 5, 2019[,]” and in response to an interrogatory asking for a more detailed explanation regarding the responses to the request for admissions, the Henry Ford defendants further explained, in relevant part: “These Defendants, after reasonable inquiry, have discovered no evidence that the drain was removed by the nursing staff” and that “the nurse assigned to [decedent] at the time” also did not remove the drain tube. Overall, the evidence could support a reasonable inference by the trier of fact that Edmonson removed the drain tube.”
“Next, there was sufficient evidence to establish a genuine issue of material fact regarding whether Edmonson breached the standard of care in connection with the removal of the drain tube. Plaintiff’s nurse practitioner expert, Donald Bucher, D.N.P., R.N., testified that “there was a failure to recognize when that drain came out that there was any damage to the drain, [and] that there was likely residual tubing still in the patient.” Bucher estimated he had removed approximately 50 drain tubes in his career, and he knew how to properly do so. Given Dr. Graziano’s discovery of four inches of broken drain tube in decedent’s body, Bucher believed the tube removed from decedent two days after his laminectomy would be frayed or appear abnormal. Bucher testified that when a drain tube breaks, it is often “frayed at the end or there’s evidence that the tubing has been stretched or there’s damage at that end of that tubing.” Because of this, Bucher opined Edmonson should have known there was a broken piece of the drain tube left in decedent’s body, and upon removing the drain tube, Edmonson should have inspected it for damage. Edmonson should have suspected a piece of the drain tube remained in decedent’s body and ordered imaging to determine if this was the case.”
The Michigan Appellate Court held: “On the basis of Bucher’s experience in removing drain tubes, and his review of the facts in this case, including Dr. Graziano’s discovery of four inches of broken drain tube while operating on decedent, Bucher opined the tube removed from decedent two days after his laminectomy would have been frayed or appeared abnormal or irregular when removed. Bucher’s opinion that Edmonson should have realized or suspected that a broken piece of drain tube was left in decedent’s body and should have ordered imaging tests was properly based on the facts of the case, reasonable inferences therefrom, and Bucher’s professional experience. Therefore, a genuine issue of material fact exists regarding whether Edmonson breached the standard of care in connection with the removal of the drain tube. The trial court thus erred in granting summary disposition with respect to this theory of malpractice.”
Source Estate of Steven John Ahearn v. Henry Ford Health System, COA No. 364366.
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