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139561 - Ykimoff v W.A. Foote Memorial Hospital

James Ykimoff,
Heather A. Glazer
(Appeal from Ct of Appeals)
(Jackson – Grant, E.)
W.A. Foote Memorial Hospital,
Judith A. Sherman
David Eggert, M.D. and David Prough, M.D.,


James Ykimoff filed this medical malpractice suit, alleging that delays in treating blood clots that developed after he had surgery caused permanent neurological damage to his legs. Moreover, Ykimoff claimed, the surgery left him with erectile dysfunction. In addition to alleging that his doctors breached the standard of care, Ykimoff asserted that the nurses at W.A. Foote Memorial Hospital were negligent in failing to notify the surgeon, Dr. David Eggert, or another doctor immediately when his legs began showing signs of an absence of blood flow; as a result, he lost the opportunity to avoid his injuries, Ykimoff maintained.
The trial court dismissed the claims against Eggert because Ykimoff’s expert agreed that Eggert did not breach the standard of care once he was notified of Ykimoff’s condition. The case then went to trial against the hospital, primarily as to the claim against the nurses. The jury returned a verdict for Ykimoff. The trial court denied the hospital’s motion for judgment notwithstanding the verdict (JNOV); the court also awarded noneconomic damages, based on the higher cap provided for in MCL 600.1483(1)(c), due to the court’s conclusion that the nurses’ negligence caused damage to a reproductive organ, resulting in the inability to procreate.
The hospital appealed, arguing, among other things, Ykimoff could not establish that the nurses’ alleged negligence was the proximate cause of his injuries. The hospital cited Eggert’s testimony that he would not have intervened sooner even if the nurses had called him when Ykimoff said they should have. The hospital also argued that the trial court erred in applying the higher noneconomic damages cap; that Ykimoff’s claim was one for loss of an opportunity for a better result that was not supported by evidence showing that the opportunity was greater than fifty percent; and that the trial court committed various evidentiary errors. Ykimoff cross-appealed regarding the trial court’s grant of summary disposition to Eggert. Ykimoff asserted in part that the trial court erred in granting summary disposition to Eggert because there was evidence creating a genuine issue of fact for trial.
The Court of Appeals affirmed in part, reversed in part, and remanded in a split published opinion. By a two-to-one vote, the panel affirmed the trial court’s denial of the hospital’s motion for JNOV. All three judges rejected the hospital’s arguments that this was a lost opportunity case and that the jury instructions were defective. The court further disagreed with the hospital’s contention that the trial court committed evidentiary errors. The Court of Appeals also affirmed the trial court’s grant of summary disposition to Eggert. However, the appeals court reversed the trial court’s use of the higher limit on noneconomic damages and remanded the case for recalculation of damages. W.A. Foote Memorial Hospital appeals.