STATE OF MICHIGAN
IN THE CIRCUIT FOR THE COUNTY OF KENT
______________
MANUEL NEGRON, JR. and
MANUEL NEGRON, SR.,
CASE NO.: 03-03452-NH
Plaintiffs
HON. JAMES R. REDFORD
v.
JAY P. LABINE, MD;
WEST MICHIGAN SURGICAL SPECIALISTS, P.C.,
a Michigan corporation;
RENAL ASSOCIATES OF GRAND RAPIDS, P.C.,
a Michigan corporation; and
ST. MARY’S MERCY MEDICAL CENTER,
an assumed name for “Trinity Health”,
a Michigan corporation;
joint and severally
Defendants
______________________________________________/
Norman H. Pylman (P27949)
Attorney for Plaintiff
Gruel Mills Nims & Pylman, LLP
50 Monroe Avenue, N.W., Suite 700 W
Grands Rapids, MI 49503-2653
616-235-5500
Mark E. Fatum (P38292)
Attorney for Jay P. Sabine, MD;
West Michigan Surgical Specialists, P.C.;
and
Renal Associates of Grand Rapids, P.C.
Rhoades McKee
161 Ottawa Avenue, N.W. Suite 600
Grand Rapids, MI 49503-2793
616-253-3500
David R. Johnson (P33822)
Attorney for St. Mary’s Mercy Medical
Center
Johnson & Wyngaarden, P.C.
3445 Woods Edge Drive
Okemos, MI 48864-5901
517-349-3200
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OPINION AND ORDER GRANTING DEFENDANT’S
MOTION FOR PARTIAL SUMMARY DISPOSITION
Defendant, St. Mary’s Mercy Medical Center (hereinafter “St. Mary’s”) requests partial
summary disposition of Plaintiffs’, Manuel Negron, Jr. (hereinafter “Junior”) and Manuel Negron,
Sr. (hereinafter “Senior”), claims against it pursuant to MCR 2.116(C)(8) and (10). For the reasons
stated infra, the Court grants Defendant’s motion. In the alternative, Plaintiffs request that under
MCR 2.116(I)(5) they should be granted an opportunity to amend their complaint allowing for a
claim of breach of bailment on behalf of the Defendants. The Court denies Plaintiffs’ motion
request.
I.
A – Statement of Facts
This is a medical malpractice case involving the failure of a kidney transplant performed on
or about April 29, 2001. The allegedly negligent living-related kidney transplant was performed to
transfer a kidney from a living donor, a 46-year-old father, Senior, to his 29-year-old son, Junior,
who suffered from renal failure. The transplant was performed at St. Mary’s by a “team of surgeons
specializing in kidney transplantation.” Plaintiffs’ Exhibit A. Medical records reflect that both
Senior and Junior signed informational pamphlets indicating that they both read, understood, and had
an opportunity to discuss the information within informational pamphlets regarding the kidney
transplantation procedure and the success rates. Defendant Brief in Support of Motion for Partial
Summary Disposition, Exhibit B, page 1 and 2. Senior also testified at his deposition that he would
have undergone the procedure whether it had a 100 percent chance of working or a 50 percent chance
of working. Defendant Brief in Support of Motion for Partial Summary Disposition, Exhibit C,
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page 23, lines 16-22. Senior stated that whether or not the surgery worked, he knew that after the
surgery he would have one kidney left. Id.
B – Summary of the Argument
Senior and Junior filed a complaint on April 15, 2003 alleging Defendants, Dr. Labine, West
Michigan Surgical Specialists, P.C., Renal Associates of Grand Rapids, P.C., and St. Mary’s Mercy
Medical Center, failed to properly perform the living donor kidney transplant from Senior to Junior
and that Defendants breached their contract with Senior and Junior. Plaintiffs claim that “the kidney
was negligently implanted, in that not enough space was allowed in Junior for the kidney to
function.” Plaintiffs’ Brief in Opposition, page 2. Plaintiffs also claim that Senior suffered the
needless loss of a kidney and Junior has suffered the loss of a viable kidney along with the resulting
deterioration in his health, a return to dialysis, and a reduced life expectancy as a result of the alleged
negligence.
On December 23, 2003, Co-Defendants Dr. Labine, West Michigan Surgical Specialists,
P.C., and Renal Associates of Grand Rapids, P.C., filed a motion for partial summary disposition,
similar to this one, in which they also sought to dismiss Senior’s claims and the claims for breach of
contract. The motion was heard by this Court on January 23, 2004 and was granted as to these CoDefendants. Specifically, this Court ruled “the claim of Plaintiff Manuel Negron, Sr. is dismissed in
its entirety... and with respect to Plaintiff Manuel Negron, Jr.’s claim for breach of warranty of cure,
to the extent same is alleged in the Complaint, it is also Granted, for the reasons set forth from the
bench in open Court on 1-23-04.” Redford, J., Order of Partial Summary Disposition, page 2.
On March 17, 2004, Defendant, St. Mary’s, filed this motion for partial summary disposition
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of Plaintiffs complaint. On April 9, 2004, Plaintiffs answered this motion with a brief in opposition
and a motion to amend their complaint.
II. Motions For Summary Disposition
A – MCR 2.116(C)(8)
This Court may appropriately grant summary disposition of a claim if, among other things,
“[t]he opposing party has failed to state a claim on which relief can be granted.” MCR 2.116(C)(8).
Such a motion “tests the legal basis of the complaint, not whether it can be factually supported.”
Malik v William Beaumont Hospital, 168 Mich App 159, 165; 423 NW2d 920 (1988) citing Beaudin
v Michigan Bell Telephone Co, 157 Mich App 185, 187; 403 NW2d 76 (1986).
A motion for summary disposition under MCR 2.116(C)(8) tests the legal sufficiency of the
complaint and allows consideration of only the pleadings. Wade v Dep’t of Corrections, 439
Mich 158, 162; 483 NW2d 26 (1992) citing MCR 2.116(G)(5); Scameheorn v Bucks, 167
Mich App 302, 306; 421 NW2d 918 (1988). The motion should be granted only when the
claim is so clearly unenforceable as a matter of law that no factual development could
possibly justify a right of recovery. Wade, 439 Mich at 163 citing Scameheorn, 167 Mich
App at 306.
The Michigan Court Rules define pleadings as a complaint, a cross-claim, a counter-claim, a thirdparty complaint, an answer, and a reply to an answer. MCR 2.110(A).
B – MCR 2.116(C)(10)
The Court may also appropriately grant summary disposition of a claim if “there is no
genuine issue as to any material fact, and the moving party is entitled to judgment ... as a matter of
law.” MCR 2.116(C)(10). To determine whether there is a genuine issue of material fact, the Court
reviews documentary evidence available to it in a light most favorable to the non-moving party.
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Universal Underwriters Ins Group v Auto Club Ins Co, 255 Mich App 541, 543; 666 NW2d 294
(2003); accord MCR 2.116(G)(5). A genuine issue of material fact exists when reasonable minds
might differ. Morris v Allstate Ins Co, 230 Mich App 361, 364; 584 NW2d 340 (1998). The
moving party has the initial burden of producing documentary evidence to support its motion.
Sheridan v Forest Hills Pub Sch, 247 Mich App 611, 620; 637 NW2d 536 (2001). If the moving
party so supports its motion, the burden of production shifts to the non-moving party to demonstrate
that a genuine issue of material fact exists. Id.
III. Negligence
The elements for an action in negligence require duty, a general standard of care, a specific
standard of care, cause in fact, legal or proximate cause, and damage. Moning v Alfonso, 400 Mich
425, 437; 254 NW2d 759 (1977). Proof of a medical malpractice claim requires the demonstration
of the (1)the applicable standard of care, (2)breach of that standard of care by the defendant,
(3)injury, and (4) proximate causation between the alleged breach and the injury Id. citing MCL §
600.2912a. Medical malpractice arises only where there is breach of duty growing out of existence
of physician-patient relationship. Pankow v Sables, 79 Mich App 326, 261 NW2d 311 (1977).
Further, duty owed by a physician in malpractice cases arises from physician-patient relationship.
Rogers v Horvath, 65 Mich App 644, 646-47, 237 NW2d 595 (1975). A plaintiff’s claim may be
properly considered as one sounding in medical malpractice where, in order for the plaintiff to prove
his claim against the defendant doctor under either a negligence or a malpractice theory, it is
necessary for the plaintiff to demonstrate: (1) the existence of a physician-patient relationship
between the defendant doctor and the third person who was a cause-in-fact of the plaintiff’s injury;
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(2) the breach of applicable standard of care required by the doctor in the treatment of his or her
patient; and (3) that the negligent treatment of the patient was a proximate cause of the plaintiff’s
injury. Welke v Kuzilla, 144 Mich App 245, 253; 375 NW2d 403 (1985).
Plaintiffs’ claim that but for Defendant’s malpractice Senior would not have suffered the
needless loss of his kidney, and the foreseeable damages attendant to that injury. Defendant claims
that the malpractice allegations stem from an injury to Junior, not Senior, which means that there can
be no legal duty owed to him from that event. This Court agrees.
A – There is lack of a genuine issue of material fact and no claim on which relief can be granted
concerning the medical malpractice allegation
Defendant contends that summary disposition of Senior’s claim of negligence is appropriate
because there is no genuine issue of material fact and no claim on which relief can be granted
regarding whether Defendant had a legal duty to Senior to not act negligently with regard to Junior.
Further, Defendant claims that there was no proximate cause between Senior’s loss and Junior’s
surgery.
Plaintiffs make claims of negligence as to the performance of the kidney transplant and
regarding the care rendered to Junior and Senior. Plaintiffs’ Compl, ¶ 18. Further, Plaintiffs claim
that the alleged negligence on the part of Defendant caused both Plaintiffs pain and suffering,
including Senior’s needless loss of a kidney, and Junior’s loss of a successful implanting of a viable
kidney along with deterioration of his health, a return to dialysis, and a reduced life expectancy.
Plaintiffs’ Compl, ¶ 19.
Defendant’s motion for partial summary disposition is made pursuant to MCR 2.116(C)(8)
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for failure to state certain claims on which relief can be granted and pursuant to (C)(10) for lack of a
genuine issue in regarding a material fact. Specifically, Defendant argues that since there was no
legal duty owed to Senior as a result of Junior’s surgery and no proximate cause between Senior’s
loss and Junior’s surgery, Senior’s medical malpractice claim for the loss of his viable, living donor
kidney due to the allegedly negligent kidney transplant attempt is a claim on which no relief can be
granted and there is no genuine issue of material fact to that matter. Defendant relies on a case
strikingly similar to this one, Malik, 168 Mich App 159; 423 NW2d 920 (1988), to support the claim
that no legal duty is present because there was no physician-patient relationship between the
defendants and plaintiff as a result of a donor surgery.
This Court holds that Malik is controlling in this matter. In the Malik case, a twenty-sevenyear-old was to receive a kidney from her twenty-six-year-old brother, who was determined to be a
suitable donor. Id. at 163. The parties were informed that the patient’s body may reject the
transplant. Id. The surgery was performed and the donor fully recovered, but the donee encountered
post-operative complications resulting in the loss of the new kidney as well as other injuries. Id.
The plaintiffs brought suit alleging malpractice due to negligent medical treatment of the donee,
which resulted in the needless sacrifice of the donee brother’s kidney. Id.
In examining duty, the court held that there was a physician-patient relationship between the
physicians who performed the surgery on the donee and the donee herself. Id. at 168. However,
contrary to the plaintiff’s claim, the court viewed the transplant as “two separate operations with
separate-physician relationships arising from each.” Malik, 168 Mich. App. at 168. Because the
donor sought to recover for the injuries inflicted upon him which resulted from the alleged
malpractice committed on the donee, he “failed to state a cause of action.” Id. at 168-69. The court
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also stated that even accepting the donor’s argument that the defendants owed him a duty, “we would
hold that he voluntarily agreed to give up his kidney no matter what the outcome of the transplant
operation.” Id. at 169. “Therefore, defendants’ conduct did not proximately cause [the donor] to
lose his kidney.” Id. citing McLean v Rogers, 100 Mich App 734, 737; 300 NW2d 389 (1980).
In reliance on Welke, 144 Mich App 245; 375 NW2d 403 (1985) and Davis v Lhim, 147
Mich App 8; 382 NW2d 195 (1985), the court found that a special relationship existed between the
defendants and the donee, but the donee was not a dangerous person who caused the donor’s injuries.
Malik, 168 Mich App at 170. “As a general rule, no one owes a duty to protect an individual who is
endangered by a third person unless he has some special relationship with either the dangerous
person or potential victim.” Id. At 169. “[A] doctor owed a duty to a person injured as a result of
the doctor’s patient’s acts because of the allegedly improper treatment of the patient.” Id. at 170
citing Welke supra at 250. In Malik, the court found no causal connection between the defendants’
alleged malpractice and the donor’s loss of a kidney because the donor voluntarily assumed the harm
and his loss came before the alleged malpractice committed in the donee, not after it. Id. citing
Ornelas v Fry, 151 Ariz 324, 330; 727 P2d 819 (1986).
Plaintiffs assert that Malik is distinguishable from this case at hand. They rely on the fact
that in Malik the negligence happened post-operatively as a failure to monitor and, as such, the
surgery and the malpractice were two separate occurrences. Plaintiffs claim in this case the
malpractice was simultaneous under a “team of surgeons” and therefore there is a genuine issue of
material fact in that the surgery was presented to both Junior and Senior as a team effort, creating a
physician-patient relationship between both Plaintiffs and Defendants.
As stated supra, the Malik decision is strikingly similar to the case at hand. As the plaintiff
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in that case, Senior is basing his claims on the loss of his viable living kidney. As in that case,
Senior understood the risks, signed an information pamphlet echoing that understanding, and went as
far to say in his deposition that he would have participated even if there was not a substantial
likelihood for success. As in Malik, Senior was injured in no way and, for all intense and purpose,
his operation was a success. Ultimately, the indisputable fact remains that Senior agreed and
understood that he was going to lose his kidney, regardless of whether Junior’s operation was
successful. The fact that the alleged negligence to Junior happened during his operation does not
distinguish these facts from Malik. Although a “team of surgeons” performed these operations, the
fact remains that this was two different procedures: one to remove a kidney from Senior and the
other to implant a kidney in Junior. As such a duty did not arise on the part of Defendant because
there were two separate physician-patient relationships involved. The relevant physician-patient
relationship was to use the proper standard of care in removing Senior’s kidney and ensuring his
well-being. A duty did not arise as to Senior after his kidney was removed and his operation was a
success. Also, as in Malik, Senior assumed the result of losing a kidney and, as a result, there is no
causal connection between the Defendants’ alleged malpractice and the donor’s loss of a kidney
because the donor voluntarily assumed the harm and his loss came before the alleged malpractice
committed upon the donee, not after it. Since there was no duty owed to Senior and since Defendant
was not the proximate cause of Senior’s “injury” there is no legal basis for Plaintiffs’ complaint as to
the claim of negligence adverse to Senior. Further, such a ruling in favor of said negligence would
be clearly unenforceable as a matter of law. Since Malik is clearly controlling in this matter,
Plaintiffs have failed to support its complaint and reasonable minds would not differ as to the
application of Malik.
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In addressing Plaintiffs’ claim that such a “needless loss” of his kidney constitutes an
increase in the mental anguish portion of his injury and that Defendants proximately caused such
“foreseeable emotional damages” the Malik case is again applicable. Plaintiffs’ brief in opposition,
pages 4 and 5. Again, Senior agreed to give up his kidney no matter what the outcome of the
transplant operation. With similar claims for emotional damages, the Malik court believed that the
donor’s “remaining emotional damages should be treated as a claim that his relationship with [the
donee] merits compensation.” Malik, 168 Mich. App. at 169. The court noted that this is more like
a claim for loss of consortium with his sister, who is the primary injured party, and that they should
not impose liability in that situation. Id. This Court agrees with that determination and, as a result,
declines to give merit to Senior’s claims.
In sum, there is no claim on which relief can be granted or a genuine issue of material fact
regarding whether Defendant had a duty to Senior as to the alleged negligence of Junior. Further,
Defendant was not the proximate cause of any alleged injury claimed by Senior in this case.
Consequently, Defendant’s motion for partial summary disposition brought pursuant to MCR
2.116(C)(8) and (C)(10) is granted.
III. Breach of Contract
According to MCL § 566.312(g) an agreement, promise, contract, or warranty of cure relating
to medical care or treatment is void unless that agreement, contract, or promise, or a note of
memorandum thereof is in writing and signed by the party to be charged therewith, or by a person
authorized by him. MCL § 566.312(g) (2004).
Plaintiffs claim that Defendant failed to provide Senior and Junior with the treatment for
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which they had contracted. Plaintiffs’ Complaint, ¶ 18, subsection (a). Defendant argues that since
there was no express written agreement referred to in Plaintiffs’ Complaint, these contractual claims
are without merit and are claims on which no relief can be granted pursuant to MCR 2.116(C)(8) and
under (C)(10) for lack of a genuine issue of material fact. Defendant relies upon the Malik decision
and its holding that there was no specific agreements or documents of such an agreement. This
Court agrees with that determination.
According to Malik, the donor claimed that defendants expressly agreed that, the transplant
would improve his sister’s life, which he supports with preoperative physical and mental
examinations as well as a hospital memorandum concerning such transplant procedures. Malik, 166
Mich. App. at 170-71. The donor contended that such promises were not a guarantee of cure and,
even if so, they satisfy the statute of frauds. Id. at 171. The court held that such documents were
insufficient to establish that defendants had promised to improve the quality of the donee’s life. Id.
at 171-72. Despite plaintiff’s contention that defendant impliedly agreed to perform the operation
with due care, the court held the following:
An implied contract exists where one engages or accepts beneficial services of another for
which compensation is customarily made and naturally anticipated. Rocco v. Dep’t of
Mental Health, 114 Mich. App. 792, 799; 319 N.W.2d 674 (1982), aff’d 420 Mich. 567
(1984). To the extent an implied contract to use due care existed, we again believe that one
implied contract would exist between [the donee] and her doctors, while a separate implied
contract would exist between [the donor] and his doctors.... [N]o negligence occurred during
[the donee’s] operation and, therefore his implied contract theory is without merit.” [Malik,
168 Mich. App. at 172.]
As pointed out by Defendant, there are no specific agreements or documents in evidence that
create such a contract. As in Malik, there is no written document signed by Defendant regarding a
contract or warranty to cure. Plaintiffs each merely signed informational pamphlets stating that they
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understood the ramifications of the procedure. Defendant Brief in Support of Motion for Partial
Summary Disposition, Exhibit B, page 1-3. Because Plaintiffs are seeking to recover for breach of
contract, when, in fact, there was no contract or writing to satisfy the statute of frauds as set out in
MCL 566.312(g) or an implied warranty to cure, Plaintiffs have failed to raise a material issue for
which relief can be granted. Since there was no contract between Plaintiffs and Defendant, there is
no legal basis for Plaintiffs’ complaint as to a claim for breach of such a contract. Ruling in favor of
breach of a non-existent contract would be clearly unenforceable as a matter of law. Furthermore,
Defendant has supported its motion in favor of summary disposition. In turn, Plaintiffs have failed
to demonstrate that a genuine issue of material fact exists in the light of such support.
In sum, there is no claim on which relief can be granted or a genuine issue of material fact
regarding whether there was even a contract between Plaintiffs and Defendant, let alone breach of
such a contract. Consequently, Defendant’s motion for partial summary disposition brought pursuant
to MCR 2.116(C)(8) and (10) is granted.
IV. Motion to Amend Plaintiffs’ Complaint
Plaintiffs claim in the alternative that they should be allowed under MCR 2.116(I)(5) to
amend their complaint to add a claim for breach of bailment. According to the (I)(5), if the grounds
asserted are based on sub-rule (C)(8), (9), or (10), the court shall give the parties an opportunity to
amend their pleadings as provided by MCR 2.118, unless the evidence before the court shows that
amendment would not be justified. This Court not only believes according to the evidence and
arguments stated supra that such an amendment would not be justified, but that such an amendment
is futile and therefore the motion is denied.
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V.
In conclusion, for the reasons set forth supra, this Court grants Defendant’s motion for partial
summary disposition. Specifically, this Court grants Defendant’s motion for summary disposition of
Senior’s complaint of negligence, brought pursuant to MCR 2.116(C)(8) and (C)(10). Also, this
Court grants summary disposition of Plaintiffs’ complaint of breach of contract pursuant to MCR
2.116(C)(8) and (C)(10). This Court also denies Plaintiffs’ motion to amend their complaint
pursuant to MCR 2.116(I)(5) and the reasons stated supra.
IT IS SO ORDERED.
________________________________
James Robert Redford, Chief Judge
Kent County Circuit Court
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