Standard of care question allows case to proceed

By Correy E. Stephenson BridgeTower Media Newswires DETROIT-Conflicting expert testimony on the applicable standard of care in a medical malpractice case created an issue of fact precluding summary disposition, a panel of the Michigan Court of Appeals has ruled. In Abdulkarim v. Lederman, the divided panel affirmed a trial court order denying the defendants' motion for partial summary disposition. The unpublished per curiam opinion was issued by Judge Jane E. Markey. Judge Karen M. Fort Hood concurred and Judge Michael F. Gadola dissented. Background Charles Abdulkarim underwent arthroscopic surgery on his right shoulder on Aug. 1, 2014. Dr. Ronald S. Lederman was lead surgeon and Dr. Mark Kwartowitz, also a surgeon, was first assistant. The procedure entailed the use of electrocautery, where tissues are heated with electricity to seal blood vessels and stop bleeding. Electrocautery requires that an adhesive electrosurgical grounding pad be secured smoothly to and flush with a cleared area of a patient's skin. When the grounding pad was removed from plaintiff's left lateral flank following the surgery, it was discovered that he had suffered a burn at the site of the pad, according to the COA opinion. A nursing note indicated that the pad was "puckered" and "not intact on the skin" after the surgery. Both doctors denied placing the grounding pad on Abdulkarim, stating that it was the responsibility of the operating room nurses or other surgical staff. One of the two registered nurses present in the operating room during Abdulkarim's surgery testified that she did not know who had placed the grounding pad; the other denied applying it and said it was placed on him by an unnamed physician's assistant. Legal action Abdulkarim sued Lederman and Kwartowitz as well as the surgical center where his operation occurred, alleging medical malpractice. The doctors breached the standard of care by failing to ensure that the grounding pad had been appropriately secured to his side, he told the court. The defendants moved for partial summary disposition. The Oakland County Circuit Court denied the motion as well as the defendants' subsequent motion for reconsideration. A surgeon may delegate tasks to other operating room personnel - such as placing a grounding pad on a patient - but the surgeon remains responsible for actions by surgical staff and is not relieved of the duty to perform the surgery within the standard of care, the trial court said. Analysis The plaintiffs' expert opined that the standard of care required the surgeons to ensure that the grounding pad had been appropriately secured to Abdulkarim so as to avoid the potential for a burn injury. He further testified that because the grounding pad was not properly applied to the plaintiff's skin, it resulted in the burn. The plaintiffs' expert did indicate that the standard of care does not require a surgeon to actually place the grounding pad on a patient, but that it is ultimately the surgeon's responsibility for it to be placed correctly. Alternatively, the defense expert told the court that it is not the role of the surgeon to place the grounding pad on the patient, to check and make sure that the staff correctly placed the grounding pad or to keep track of the pad during surgery. Lederman similarly testified that the standard of care does not require a surgeon to check the grounding pad for proper placement before commencing surgery and that it is the nurse's responsibility to apply the grounding pad to the patient's skin. However, he also said that he always makes sure the grounding pad was correctly placed on his patients and that it was in the proper position on Abdulkarim when surgery started. Lederman said he believes the plaintiff shifted during the procedure, causing a fold in the grounding pad. During his deposition testimony, Kwartowitz did not address the standard of care. Framing the question "as whether the specific standard of care requires a surgeon to check the placement of a grounding pad before the start of surgery as one that needs to be resolved by a jury," the COA answered in the affirmative. The plaintiffs' expert testimony "was sufficient to create an issue of fact with respect to whether the grounding pad was appropriately placed on plaintiff and whether Dr. Lederman missed or ignored the improper placement," the court wrote, so the trial court did not err in denying the motion for summary disposition. "Assuming that the standard of care did require Drs. Lederman and Kwartowitz to check the placement of the grounding pad at the beginning of the surgery, we note that Dr. Kwartowitz made no claim that he had done so, thereby breaching the presumed standard of care," the COA said. With respect to Lederman, even if the court accepted that he in fact checked the grounding pad, "a malpractice claim can still be made on the basis that he did so negligently by failing to identify, or by ignoring, an improperly applied grounding pad." The court was not persuaded by the defendants' heavy reliance on a statement made by the plaintiffs' expert that checking a grounding pad before and at the end of surgery is not necessarily the standard of care. "This reliance is misplaced because the question concerned checking the grounding pad before and after the surgery," the court explained. The expert testified, "consistently with his affidavit of merit, that the standard of care required the two surgeons to ensure that the grounding pad had been appropriately secured or applied to plaintiff's body." In a concurring opinion, Fort Hood expressed concern about the implication of the defendants' argument that they could not owe a duty where the responsibility of placing grounding pads typically falls on staff. She pointed to Orozco v. Henry Ford Hosp., a 1980 decision where the Michigan Supreme Court held that a surgeon performing a surgery has a "non-delegable duty to see that the operation [is] performed with due care." "In the present case, defendants' implied contention that, as the surgeons performing plaintiffs' arthroscopic shoulder surgery, they had no duty or responsibility with respect to the placement of the grounding pad is disingenuous and unpersuasive," according to the concurrence. Gadola authored a dissent, where he took the position that the "plaintiffs have utterly failed to meet their burden of producing evidence of a breach of the standard of care by defendant surgeons or, equally as important, by anyone else involved in plaintiff's surgery." Neither Anita L. Comorski, who represented the defendants, nor Jeffrey T. Meyers, who represented the plaintiff, responded to a request for comment. Published: Thu, Mar 12, 2020