Estate of Bimla Nayyar v. Oakwood Healthcare Inc

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

RAKESH NAYYAR, Personal Representative of the UNPUBLISHED

ESTATE OF BIMLA NAYYAR, March 23, 2023

Plaintiff-Appellant,

v No. 360257

Wayne Circuit Court

OAKWOOD HEALTHCARE, INC., doing business LC No. 13-009819-NH

as OAKWOOD HOSPITAL & MEDICAL

CENTER,

Defendant-Appellee.

Before: RICK, P.J., and SHAPIRO and LETICA, JJ.

PER CURIAM.

In this medical malpractice action, plaintiff, Rakesh Nayyar, as personal representative of

the estate of Bimla Nayyar, appeals as of right the trial court’s January 21, 2022 order entering

judgment notwithstanding the verdict (JNOV) in favor of defendant, Oakwood Healthcare, Inc.,

doing business as Oakwood Hospital & Medical Center. We vacate the trial court’s order and

remand for entry of a judgment in favor of plaintiff consistent with the jury’s verdict, with damages

subject to reduction by the trial court in accordance with MCL 600.6304(5).

I. BACKGROUND

On January 9, 2012, the decedent, Bimla Nayyar, underwent an unnecessary brain surgery,

also known as a craniotomy, after another patient’s CAT scan results were mistakenly placed in

her medical file. She died approximately two months later, after experiencing a series of medical

complications following the craniotomy. The action here arises from a lawsuit filed by plaintiff

following the decedent’s death, in which a jury found in plaintiff’s favor and awarded $20 million

in damages.

A summary of the protracted procedural history of this case is necessary to a proper

understanding of the present appeal. Central to the proceedings is an order of peremptory reversal

entered by this Court in July 2015. Estate of Nayyar v Oakwood Healthcare, Inc, unpublished

order of the Court of Appeals, entered July 15, 2016 (Docket No. 329135). There, this Court

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vacated a June 2015 judgment for plaintiff and instead remanded for entry of an order of JNOV in

favor of defendant. This Court’s prior opinion in another appeal arising out of this case, Estate of

Nayyar v Oakwood Healthcare, Inc, unpublished per curiam opinion of the Court of Appeals,

issued May 14, 2020 (Docket No. 343676), pp 2-8, summarizes the relevant background as

follows:

Initial Lawsuit Dismissed With Prejudice. After Bimla’s death, her estate,

represented by her son Rakesh Nayyar, sued Oakwood Hospital and several

individuals. To avoid confusion, the initial lawsuit filed in Wayne County Circuit

Court (Docket No. 12-013694-NO) will be referred to as the “first lawsuit,” and the

estate will be referred to as “plaintiff” throughout this opinion.

In the first lawsuit, plaintiff alleged counts of ordinary negligence and

vicarious liability against Oakwood Hospital and a count of battery against Samer

Elfallal, D.O., and Tejpaul Pannu, M.D., for performing an unnecessary craniotomy

on Bimla. The defendants moved for summary disposition, and the trial court

granted the motion. Counsel for the defendants drafted the proposed order, and the

draft order made clear that dismissal of the ordinary-negligence claim would be

“with prejudice.” Plaintiff’s counsel asked that language be added to make clear

that plaintiff could refile a similar complaint for medical malpractice, and the

defendants’ counsel agreed. The resulting language, stipulated as to form by

plaintiff’s counsel and signed by the trial court, stated in relevant part:

IT IS HEREBY ORDERED that Defendants’ Motion for

Summary Disposition is GRANTED, that Plaintiff’s claims of

ordinary negligence contained in Count I and battery contained in

Count III are dismissed with prejudice, and that the above cause is

hereby dismissed in its entirety for the reasons stated on the record.

IT IS FURTHER ORDERED that entry of this order shall

not preclude Plaintiff from bringing a medical malpractice claim.

[Order entered Feb. 19, 2013, Docket No. 12-013694-NO.]

Relevant to this appeal, the following are matters evident from the record in the

first lawsuit: (1) the trial court dismissed plaintiff’s ordinary-negligence claim with

prejudice; (2) plaintiff’s counsel negotiated the right to refile a lawsuit for medical

malpractice; and (3) the trial court expressly preserved in its order plaintiff’s right

to refile a lawsuit claiming medical malpractice. Plaintiff did not move for

reconsideration or appeal the dismissal order.

Second (Current) Lawsuit. On July 26, 2013, plaintiff refiled its complaint

in Wayne County Circuit Court (Docket No. 13-009819-NH), this time naming

only Oakwood Hospital as defendant. This is the lawsuit to which the current

appeal relates.

In this second (current) lawsuit, plaintiff alleged the same essential facts as

in the first one, and plaintiff set forth one count of “negligence” against the hospital.

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The allegations in the complaint make clear that the negligence claim is one for

medical malpractice. For example, plaintiff alleged that Bimla “received the care

and treatment constituting the malpractice” of defendant and that defendant owed

Bimla “a duty to maintain the standard of care and treatment of its peers within the

professional community of hospital administrations across the country.” Plaintiff

also attached two affidavits of merit in support of the complaint pursuant to

MCL 600.2912d.

Discovery and Pretrial-Motion Practice. Discovery and pretrial-motion

practice ensued in this case for several years. Throughout this period, plaintiff

consistently referred to the action as a “medical malpractice matter” or words to

that effect. . . .

As part of discovery, plaintiff served requests to admit on defendant, and,

in response, defendant admitted the following: “. . . Defendant admits that

Defendant and/or Defendant’s agents owed a duty to Bimla Nayyar to refrain from

placing Bimla Nayyar’s name on a radiology slide that belonged to another patient,

and that Defendant and/or its agents failed to fulfill this duty. Defendant further

admits that Bimla Nayyar underwent an unnecessary craniotomy on January 9,

2012, as a result of this failure.” . . . Subsequently, defendant consistently

acknowledged that it had breached the appropriate standard of care and that the

only two elements at issue for trial were causation and damages. . . .

Although the parties had repeatedly characterized plaintiff’s claim as one

for medical malpractice, as the trial date grew near, the record shows that plaintiff

began to resurrect the ordinary-negligence claim dismissed in the first lawsuit. To

illustrate, a couple of weeks prior to trial, defendant moved to preclude plaintiff

from asserting any new claim not included in the complaint in this case. In

response, plaintiff characterized this case as a “medical malpractice action,” denied

that the “claims of malpractice have not been pled with reasonable definiteness and

certainty,” and expressly denied that plaintiff had any intention “to assert any ‘new

theories’ not already pled in [its] complaint.” . . .

But then, just a few days before trial, the record shows a material shift in

plaintiff’s approach to this case. On April 20, 2015, the trial court held a hearing

on various pretrial motions in limine. During the hearing, plaintiff’s counsel

asserted, “Operating on the wrong patient is not medical malpractice. Never has

been. Never will be.” . . . Then on April 24, 2015, the parties submitted a proposed

joint pretrial order . . . [C]onsistent with the argument made during the prior

motion hearing, plaintiff identified the issues of law that it believed were pertinent

to the trial, and it included in this list whether “any cap on damages [applied] in this

case (to be decided after trial).” Medical-malpractice claims are subject to certain

statutory caps on damages, while ordinary-negligence claims are not. See

MCL 600.1483. The trial court entered the order with this language on April 27,

2015.

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Jury Trial and Various Trial Motions. On the same day that the trial court

entered the final pretrial order, the jury trial commenced. Prior to jury selection,

the trial court and counsel for the parties handled various preliminary matters. It

was during this colloquy that plaintiff’s counsel exclaimed on the record, “This

isn’t a malpractice claim. No.” . . . Plaintiff’s counsel argued that it was only after

the close of proofs that the trial court should make a determination whether this was

a medical-malpractice claim or an ordinary-negligence claim. . . .

Defendant’s counsel immediately asked for clarification, “Am I

understanding [plaintiff’s counsel] to say this is not a malpractice case, but an

ordinary negligence case?” Plaintiff’s counsel responded, “And I will make that—

that’s not only correct, but it’s going to—and I’m going to ask the Court to so find

at the conclusion of this case because that’s what the statute says.” . . . Because the

ordinary-negligence claim had already been dismissed “with prejudice” in the first

lawsuit, defendant’s counsel moved immediately to dismiss the current lawsuit

based on plaintiff’s counsel’s statement that he intended to go forward on an

ordinary-negligence claim. . . . The trial court denied the motion and, after reading

defendant’s earlier admission, it explained, “. . . . the Court finds that the basis for

the admission of liability was the professional negligence which was set forth

therein; however, there still has to be a supporting evidence for the proximate cause.

So we will litigate the issues of proximate cause.” . . .

A jury was then selected and instructed. The trial court described plaintiff’s

claim as one “involving wrongful death, medical malpractice” and characterized

plaintiff’s burden as one involving “professional negligence or malpractice” of the

defendant. . . . Consistent with defendant’s earlier admissions, the trial court

instructed the jury that “the issues of negligence have been admitted.” . . . This

effectively removed any question as to the appropriate standard of care or breach,

and the jury was instructed solely with respect to causation and damages (as well

as other standard instructions).

The question of ordinary negligence versus medical malpractice continued

to play out over the next several days of trial. Plaintiff’s counsel submitted a

memorandum to the trial court arguing that this case involved ordinary negligence.

According to plaintiff’s counsel, “No court could ever hold that operating on the

wrong patient raises questions involving medical judgment.” . . . Consistent with

this memorandum, plaintiff’s counsel subsequently filed a motion with both the

trial court in the current lawsuit and the trial court in the first lawsuit to, in the

words of plaintiff’s counsel, “correct the obvious clerical error in the order which

indicated that there was a dismissal with merits, on the merits of this case which

cannot be under the law.” . . . Plaintiff’s counsel further characterized the dismissal

of the ordinary-negligence claim with prejudice in the first lawsuit as a “trick”

played by defendant’s counsel. . . . In response, defendant’s counsel pointed out

that (1) plaintiff’s counsel did not appeal the earlier dismissal, (2) plaintiff’s counsel

had been involved in negotiating the wording of the proposed order of dismissal,

and (3) defendant’s counsel would have made different strategic choices in the

current lawsuit had this been an ordinary-negligence case from the outset. . . .

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On the fifth day of trial, the trial court in this lawsuit granted plaintiff’s

motion to correct, holding that the trial court in the first lawsuit must have made an

error. The trial court held that the prior dismissal order had to be corrected so that

the dismissal of the ordinary-negligence claim would be without prejudice. . . . The

trial court entered an order to this effect. Yet, the very next day, the same trial court

vacated its order and directed plaintiff to file the motion with the trial court in the

first lawsuit. In vacating its order, the trial court also ordered “sua sponte that

Plaintiff’s complaint is amended to include a claim of ordinary negligence.” . . .

(For its part, the trial court in the first lawsuit subsequently denied plaintiff’s

motion, holding, “There has been no showing of any clerical error or mistake.” . . .

Plaintiff’s attempts to appeal this decision were unsuccessful.)

The legal wrangling over whether plaintiff had a viable ordinary-negligence

claim played out primarily outside the presence of the jury. In line with the trial

court’s instructions at the outset of the trial, the testimony presented to the jury

focused on causation and damages. Plaintiff’s counsel elicited testimony that, prior

to the unnecessary brain surgery, Bimla had been in relatively good health for a

person of her age and medical history, while defendant’s counsel elicited testimony

to the contrary. There was testimony describing Bimla’s complications and

suffering after the surgery, omissions or misleading statements in the subsequent

medical history that arguably exacerbated her complications and suffering, and her

family members’ pain and loss over the passing of the family matriarch. This

testimony had no particular bearing on whether defendant breached a specific

standard of care with respect to its treatment of Bimla.

With that said, plaintiff’s counsel did elicit testimony at trial on the standard

of care and breach. A review of the record confirms that this testimony was not

voluminous, but it was pointed. On multiple occasions, plaintiff’s counsel asked,

and a medical witness answered, a variant of the following: “Q. You don’t have to

be a doctor to know you can’t operate on the wrong patient to do brain

surgery . . . do you? . . . A. I don’t think you need to be a doctor to understand that

you should not do brain surgery on a – patient. I agree with you.” . . . Defendant’s

counsel objected to this line of questioning, arguing that the testimony raised issues

involving the proper standard of care and breach, but the trial court overruled the

objection without explanation. . . .

In fact, the reason for this testimony was made clear by plaintiff’s counsel,

when he argued to the trial court that this testimony confirmed that this was an

ordinary-negligence case, not a medical-malpractice one: “The defendant claims

that they engaged the trickery, and they got Judge Oxholm [the trial judge in the

first lawsuit] to dismiss the negligence case with prejudice and so the plaintiff can

never, you can never make a determination. [Defendant’s counsel is] going to make

this argument that this case is not [sic] a medical malpractice case even though it’s

obviously not, even though every witness on the stand has testified this is what

that’s that you don’t need to be a doctor to figure out that you don’t operate on the

wrong patient.” . . . As noted, plaintiff’s counsel asked a variant of this question

multiple times, and each time the jury heard the testimony in answer.

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After the close of proofs on the sixth day of trial, the trial court instructed

the jury on the elements of causation and damages, but not the standard of care or

breach. The jury found in favor of plaintiff and awarded $300,000 in economic

damages and $19.7 million in noneconomic damages. The trial court entered

judgment in plaintiff’s favor for the full, uncapped amount of the award. Consistent

with the position at trial, plaintiff maintained throughout the post-trial proceedings

before the trial court that this was an ordinary-negligence case. The trial court

agreed, as it declined to apply the statutory caps on damages for medical-

malpractice awards.

Defendant subsequently moved for a new trial and for judgment

notwithstanding the verdict (JNOV). With respect to the JNOV motion, defendant

argued that plaintiff admitted during the trial that this was not a medical-

malpractice case but, rather, an ordinary-negligence case. But, as defendant pointed

out, plaintiff’s ordinary-negligence claim had been dismissed with prejudice, the

dismissal had not been appealed, and the first trial court had held that there was no

clerical error or mistake with respect to the dismissal. Because plaintiff did not

appear to have a viable claim remaining—no medical-malpractice claim

(abandoned) and no ordinary-negligence claim (dismissed on merits)—defendant

sought a JNOV. Plaintiff responded in relevant part, “Based on the evidence

adduced at trial, it became blatantly clear that Plaintiff’s claims against Defendant

sounded in ordinary negligence, and not medical malpractice (the hospital operated

on the wrong patient), and on May 5, 2015, this court entered an order allowing

Plaintiff to pursue an ‘ordinary negligence’ claim pursuant to MCR 2.118(C).” . . .

The trial court denied the motion for JNOV, explaining from the bench, “At

this juncture, the Court sees no reason to undo the jury’s verdict. That has been

submitted, and the Court will continue to let the jury’s verdict stand.” . . . It entered

an order to this effect on August 18, 2015, and the trial court likewise denied the

motion for a new trial in an order entered on August 20, 2015.

Defendant’s First Appeal. On September 4, 2015, defendant filed an appeal

as of right with this Court. Relevant to the current appeal, defendant also moved

the prior panel for peremptory reversal, the thrust of which was that because the

trial court in the first lawsuit had dismissed the ordinary-negligence claim on the

merits, and plaintiff had tried this action as an ordinary-negligence case, his

ordinary-negligence claim was barred as a matter of law, and defendant ought to

have been granted JNOV. Defendant argued that plaintiff was precluded by the

collateral-attack doctrine, as well as by collateral estoppel and res judicata, from

securing a judgment that thwarted the trial court’s order of dismissal in the first

lawsuit.

In response to defendant’s motion and consistent with the proceedings

below, plaintiff argued that this was an ordinary-negligence case rather than a

medical-malpractice case. According to plaintiff, “It is true that the Estate is

committed to the position that plaintiff’s claim is one for ordinary negligence.” . . .

Plaintiff further asserted, “Plaintiff was allowed to re-file and litigate his negligence

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claim, and the proofs adduced throughout litigation established that the claim

sounded in ordinary negligence, not medical malpractice.” . . .

The Court granted defendant’s motion for peremptory reversal. The order

reversed the trial court’s order denying defendant’s motion for JNOV, vacated the

trial court’s judgment in favor of plaintiff, and remanded with instructions for the

trial court to enter an order granting defendant’s motion for JNOV. Specifically,

this Court’s order provided:

The Court orders that the motion for peremptory reversal

pursuant to MCR 7.211(C)(4) is GRANTED. As we previously

held in Estate of Nayyar v Oakwood Healthcare, Inc, unpublished

order of the Court of Appeals, entered June 4, 2015 (Docket No.

327506), the Wayne Circuit Court’s May , 2015 order amending the

complaint to include a claim of ordinary negligence constituted an

impermissible collateral attack on the February 19, 2013 order

entered in WCCC No. 12-013694-NO. People v Howard, 212 Mich

App 366, 369; 538 NW2d 44 (1995) (“a collateral attack occurs

whenever a challenge is made to a judgment in any manner other

than through a direct appeal.”). The latter order granted defendant’s

motion for summary disposition, dismissed plaintiff’s ordinary

negligence claim with prejudice, and expressly resolved the last

pending claim in the matter. Plaintiff did not appeal. The

February 19, 2013 order therefore constituted a final ruling on the

merits and is immune from collateral attack. Leahy v Orion Twp,

269 Mich App 527, 530; 711 NW2d 438 (2006) (“a decision is final

when all appeals have been exhausted or when the time available for

an appeal has passed”); Kosch v Kosch, 233 Mich App. 346, 353;

592 NW2d 434 (1999) (“Defendant’s failure to file an appeal from

the original judgment . . . pursuant to MCR 7.205(A) or (F),

precludes a collateral attack on the merits of that decision.”).

Further, because the same parties fully litigated the viability of

ordinary negligence in a prior proceeding and the result of that

proceeding would have bound either party, collateral estoppel

precludes plaintiff from asserting ordinary negligence now. Detroit

v Qualls, 434 Mich 340, 357; 454 NW2d 374 (1990) (a ruling on

summary disposition resolves a matter on the merits for purposes of

collateral estoppel); see also Monat v State Farm Ins Co, 469 Mich

679, 691; 677 NW2d 843 (2004). Indeed, under the February 19,

2013 order, only the alternate theory of medical malpractice

remained available to plaintiff against this defendant. See Bryant v

Oakpointe Villa Nursing Ctr, 471 Mich 411, 420-422; 684 NW2d

864 (2004) (explaining that although arising out of a single

occurrence, medical malpractice and ordinary negligence present

alternate theories of liability). Accordingly, where plaintiff

unequivocally proceeded in this action under an ordinary negligence

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theory and the jury awarded damages under that theory, defendant

was entitled to judgment notwithstanding the verdict (JNOV).

The Wayne Circuit Court’s August 18, 2015 order denying

defendant’s motion for JNOV is REVERSED, the June 8, 2015

Judgment is VACATED and the cause is remanded for entry of an

order granting defendant’s motion for JNOV. [Estate of Nayyar

(Docket No. 329135), unpub order at 1.]

The Court subsequently denied plaintiff’s motion for reconsideration, and

our Supreme Court denied plaintiff’s application for leave as well as a subsequent

motion for reconsideration. Estate of Nayyar v Oakwood Healthcare, Inc, 500

Mich 1032; 897 NW2d 183 (2017), recon den 501 Mich 972 (2018).

On remand, plaintiff filed a motion asking the trial court to first enter an order of JNOV as

directed by this Court, and subsequently enter an order granting plaintiff relief from the JNOV

order under MCR 2.612(C)(1)(a), (c), and (f). The trial court did just that, entering an order

granting JNOV in favor of defendant, but then immediately entering another order granting

plaintiff relief from that order. Defendant filed an emergency application for leave to appeal,

which this Court granted. This Court ultimately concluded that the trial court exceeded its

authority on remand when it granted relief to plaintiff. Estate of Nayyar (Docket No. 343676),

unpub opn at 1. This Court also concluded that because the law-of-the-case doctrine applied, it

was “bound by the prior panel’s [peremptory-reversal] order,” and was not authorized to grant

relief to plaintiff. Id. This Court explained, in pertinent part:

With respect to the trial court’s order granting plaintiff relief from the

JNOV, the trial court premised its ruling on its belief that the prior panel made a

mistake in concluding that the jury trial involved a question of ordinary negligence.

This ruling by the trial court and its underlying finding were outside of that court’s

scope of authority on remand. The prior panel made two findings that were key to

its peremptory order: (1) “plaintiff unequivocally proceeded in this action under an

ordinary negligence theory”; and (2) “the jury awarded damages under that theory.”

Regardless of whether the trial court believed that the prior panel made a mistake

with either finding, as a lower court in our hierarchical judicial system, the trial

court did not have the authority to, in effect, overrule a higher court. Decades, if

not centuries, of case law counsel against this. Furthermore, the prior panel’s order

gave clear, specific instructions for the trial court to follow on remand, and the trial

court did not have the authority to take action inconsistent with those instructions,

which the trial court did by granting relief that subverted the prior panel’s instructed

relief. See Bennett v Bennett, 197 Mich App 497, 501-502; 496 NW2d 353 (1992)

(“Where a litigant believes that this Court erred, the appropriate remedy is to seek

either rehearing in this Court or leave to appeal to the Supreme Court, not to return

to the trial court and argue that the Court of Appeals decision was erroneous and,

therefore, should not be followed.”).

Additionally, this Court noted that the trial court was prohibited from relying on

MCR 2.612 “as a means for expanding its limited authority on remand,” particularly if the law-of-

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the-case doctrine was applicable. Estate of Nayyar (Docket No. 343676), unpub op at 10, citing

Sumner v Gen Motors Corp (On Remand), 245 Mich App 653; 633 NW2d 1 (2001). This Court

noted that, according to Sumner, a trial court’s authority to grant relief from judgment is limited

to circumstances in which the trial court is granting relief from its own judgment, and that it could

not rely on MCR 2.612 to grant relief from a judgment handed down by a higher court. Id.

This Court then considered the scope of its own authority with respect to the prior panel’s

order of peremptory reversal. This Court held that it had “a ‘mandatory obligation’ to adhere to

the law-of-the-case doctrine except in several well-defined, limited circumstances,” such as a

material change of the facts on remand, an intervening change in the law, or a “significant

competing interest at stake, such as a constitutional right[.]” Id. at 11. This Court concluded that

none of the exceptions applied. Id. at 12.

Turning to plaintiff’s assertion that the decision of the prior panel was mistaken, this Court

conceded that a case could be made that the prior panel erred by granting peremptory reversal, but

declined to determine whether the prior panel erred because “[c]ase law in this jurisdiction is clear

that the law-of-the-case doctrine applies regardless of the correctness of the prior determination.”

Id. at 12-13. In other words, the Court’s decision rested primarily if not exclusively on the law of

the case doctrine. It concluded that even if the peremptory reversal had been a clear error causing

manifest injustice, plaintiff was “without recourse under our current precedent” because “the

correctness of a prior panel’s decision is not subject to review under our law-of-the-case doctrine.”

Id. at 14. The panel, however, urged our Supreme Court to “revisit whether, under the law-of-the-

case-doctrine, a panel has the authority to correct a clear error by a prior panel so as to avoid

manifest injustice in a civil matter.” Id. Ultimately, this Court affirmed the trial court’s initial

grant of JNOV to defendant, reversed the court’s order granting plaintiff relief from that JNOV

order under MCR 2.612, and instructed the trial court on remand to reinstate the order of JNOV in

favor of defendant.

JUDGE METER concurred in part and dissented in part, stating that while he concurred based

on the law of the case, he concluded that granting peremptory reversal had been “a mistake.” He

noted that defendant had admitted to breaching the standard of care before trial, and that the

testimony at trial focused on causation and damages, explaining that

any and all testimony elicited by plaintiff regarding the relevant standard of care

and associated breach were completely irrelevant, as the majority recognizes.

Whether plaintiff proceeded through trial under a theory of medical malpractice or

ordinary negligence, the issue of causation was the same. See O’Neal v St John

Hosp & Med Ctr, 487 Mich 485, 496-497; 791 NW2d 853 (2010). [Estate of

Nayyar (Docket No. 343676), unpub op at 2 (METER, P.J., concurring in part and

dissenting in part).]

JUDGE METER concluded that the prior panel “should have remanded the case for entry of judgment

in favor of defendant (sic), but with damages capped, which is standard operating procedure that

trial courts can easily accomplish post-verdict in any medical malpractice case. See

MCL 600.6304(5).” Id. at 1. JUDGE METER also separately urged the Michigan Supreme Court to

“reexamine and clarify the law-of-the-case doctrine in cases involving, as here, ‘lateral review.’ ”

Id. at 2.

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Plaintiff applied for leave to appeal this Court’s decision in Docket No. 343676, but our

Supreme Court denied leave. Estate of Nayyar v Oakwood Healthcare, Inc, 507 Mich 999; 961

NW2d 147 (2021). After this Court issued its decision, but before the case returned to the trial

court for entry of an order granting defendant JNOV as directed by this Court, our Supreme Court

decided Rott v Rott, 508 Mich 274, 288; 972 NW2d 789 (2021), in which it recognized an

exception to the law-of-the-case doctrine for prior decisions that are clearly erroneous and result

in manifest injustice. Thereafter, on January 21, 2022, the trial court entered an order on remand

granting defendant JNOV as directed by this Court. This appeal followed.

II. JURISDICTIONAL CHALLENGE

As an initial matter, defendant challenges the Court’s jurisdiction over this appeal.

Although defendant does not dispute that plaintiff timely filed a claim of appeal from the trial

court’s January 21, 2022 order, it argues that the January 21 order itself was final under

MCR 7.202(6)(a)(i), and that consequently, this Court does not have jurisdiction over the matter

under MCR 7.203(A)(1). Defendant raised an identical argument in a motion to dismiss, which

this Court denied. Estate of Nayyar v Oakwood Healthcare, Inc, unpublished order of the Court

of Appeals, entered May 6, 2022 (Docket No. 360257). This Court’s previous decision on this

issue is the law of the case, which we are bound to follow. See Bennett v Detroit Police Chief,

274 Mich App 307, 311 n 1; 732 NW2d 307 (2006) (applying the law-of-the-case doctrine to avoid

revisiting a jurisdictional challenge in a brief because “[t]his Court’s order denying plaintiff’s

motion to dismiss based on the jurisdiction of this Court controls the outcome of this issue on

appeal”).1 We thus decline to revisit defendant’s finality challenge here.

Defendant also argues that plaintiff does not have appellate standing, stating that plaintiff

was not aggrieved by the trial court’s January 21 order. We disagree. MCR 7.203(A) provides

that this Court has jurisdiction of an appeal by right “filed by an aggrieved party.” An aggrieved

party must have suffered a concrete and particularized injury, as would a party plaintiff initially

invoking a court’s power. Manuel v Gill, 481 Mich 637; 643-644, 753 NW2d 48 (2008).

Accordingly, an appellant must demonstrate an injury arising from the actions of the trial court

rather than an injury arising from the underlying facts of the case. Id. at 644. Defendant argues

that plaintiff was not aggrieved by any decision made by the trial court because the January 21

order granting JNOV in favor of defendant was entered in accordance with this Court’s directive

in Estate of Nayyar (Docket No. 343676), unpub op at 14. However, we find that plaintiff was

injured by the trial court’s entry of the January 21 order, which granted JNOV to defendant,

reversing a prior judgment in plaintiff’s favor and essentially closing the case. Plaintiff is an

aggrieved party because he suffered a concrete and particularized injury from the trial court’s order

granting JNOV in favor of defendant and closing the case. Therefore, we reject defendant’s

argument that this Court lacks jurisdiction over this appeal.

1

Contrary to what defendant asserts, the law-of-the-case doctrine is not limited to cases in which

a previously decided issue is raised in a subsequent appeal. See McNees v Cedar Springs Stamping

Co (After Remand), 219 Mich App 217, 221-222; 555 NW2d 481 (1996) (“Under the doctrine of

law of the case, an appellate court’s decision concerning a particular issue binds courts of equal or

subordinate jurisdiction during subsequent proceedings in the same case.”) (emphasis added).

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III. LAW-OF-THE-CASE DOCTRINE

This appeal turns on whether our Supreme Court in Rott, which was decided after this Court

directed the trial court to enter an order granting JNOV to defendant, expressly ruled that an

exception to the application of the law-of-the-case doctrine exists in cases where a “prior decision

is clearly erroneous and would work a manifest injustice.” 508 Mich at 288, quoting Pepper v

United States, 562 US 476, 506-507; 131 S Ct 1229; 179 L Ed 2d 196 (2011). We conclude that

our Supreme Court did expressly clarify that an exception to the law-of-the-case doctrine exists in

such situations. We further conclude that plaintiff has adequately demonstrated that the exception

should be applied herein.

A. LEGAL BACKGROUND

“[T]his Court reviews de novo the determination whether the law-of-the-case doctrine

applies and to what extent it applies.” Lenawee Co v Wagley, 301 Mich App 134, 149; 836 NW2d

193 (2013) (quotation marks and citation omitted). Under the law-of-the-case doctrine, the ruling

of an appellate court on a particular issue binds the appellate court and all lower courts with respect

to that issue. Farish v Dep’t of Talent & Economic Dev, 336 Mich App 433, 449; 971 NW2d 1

(2021). The doctrine only applies to legal questions actually determined in the prior decision and

to issues necessary to that earlier determination. Id. The aim of the doctrine is to ensure

consistency and to “ ‘avoid reconsideration of matters once decided during the course of a single

lawsuit.’ ” AFT v Michigan, 334 Mich App 215, 225; 964 NW2d 113 (2020) (citation omitted).

One of our Supreme Court’s most recent decisions regarding the law-of-the case doctrine

is Rott, 508 Mich 272. In Rott, the plaintiff sued the defendant under theories of negligence and

premises liability after she was injured while riding a zip-line in the defendant’s backyard. Id.

at 282. The defendant moved for summary disposition, claiming that the plaintiff’s cause of action

was barred by the Recreational Land Use Act (RUA), MCL 324.73301(1). The trial court agreed

that the RUA applied, but denied the motion for summary disposition because there were genuine

issues of material fact regarding whether the defendant was grossly negligent or engaged in willful

and wanton misconduct under the RUA. Rott, 508 Mich at 282.

Whether the RUA applied became a major point of contention between the parties. On

appeal, the plaintiff argued that the RUA did not apply and moved for peremptory reversal, while

the defendant argued that summary disposition was improperly denied, but did not respond to the

plaintiff’s request for peremptory reversal. Id. at 282-283. This Court denied the plaintiff’s

motion for peremptory reversal and application for leave to appeal, citing a failure to persuade the

Court of the need for immediate appellate review. Id. at 283. However, this Court granted the

defendant’s application for leave, limited to the issues raised in his application. Id. In her answer

to the defendant’s application for leave to appeal, the plaintiff specifically asserted that she had

not conceded that the RUA was applicable. Id.

This Court subsequently reversed the trial court, concluding that the plaintiff had not

presented evidence of gross negligence. In so ruling, this Court presumed that the RUA was

applicable, but did not offer any analysis on that point. Id. at 283-284. The case was remanded to

the trial court for entry of a judgment in favor of the defendant, at which point the plaintiff appealed

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as of right, claiming once again that the RUA was not applicable. Id. at 284. This Court concluded

that the prior decision was the law of the case with respect to that issue. Id.

The plaintiff applied for leave to appeal in the Michigan Supreme Court, which ultimately

held that this Court erred by invoking the law-of-the-case doctrine because the plaintiff had not

conceded, waived, or forfeited her right to challenge whether the RUA was applicable. Id. at 288.

The Court noted that this Court’s order denying the plaintiff’s application for leave to appeal did

not address the applicability of the RUA and was not a decision on the merits. Id. at 289.

Similarly, the order granting the defendant’s application for leave to appeal was limited to the

issues raised in the application, which did not include whether the RUA was applicable. Id. The

Supreme Court held that this Court’s application of the law-of-the-case doctrine was improper

because this Court could not have implicitly or explicitly decided the applicability of the RUA in

the prior appeal because the issue was never properly before this Court in that appeal. Id.

In its discussion of the law-of-the-case doctrine, the Supreme Court explained that the

doctrine is not a limit on the power of the judiciary, but instead reflects the practice of courts to

refuse to reopen what has already been decided. Id. at 287. Significantly, citing a United States

Supreme Court decision, the Court noted that an exception to the law-of-the-case doctrine exists

if a prior order or judgment is clearly erroneous and would result in manifest injustice, stating:

We also heed the United States Supreme Court’s astute observation that the

“doctrine does not apply if the court is convinced that its prior decision is clearly

erroneous and would work a manifest injustice.” Pepper v United States, 562 US

476, 506-507; 131 S Ct. 1229; 179 L Ed 2d 196 (2011) (quotation marks, citations,

and brackets omitted). [Rott, 508 Mich at 288.]

Cf. Christianson v Colt Indus Operating Corp, 486 US 800, 817; 109 S Ct 2166; 100 L Ed 2d 811

(1988) (recognizing that a court “has the power to revisit [a] prior decision[] of its own . . . in any

circumstance, although as a rule courts should be loathe to do so in the absence of extraordinary

circumstances such as where the initial decision was clearly erroneous and would work a manifest

injustice.”) (quotation marks and citation omitted; emphasis added); see also Wright, Miller, &

Cooper, Federal Practice & Procedure, § 4478 (observing that “[t]he exception that allows

departure from the law-of-the-case doctrine when the earlier decision was clearly erroneous and

would work a manifest injustice is more likely to be described than employed”) (quotation marks

and footnote omitted).

B. APPLICATION

As an initial matter, defendant argues that Rott did not overrule prior precedent disavowing

the clearly erroneous/manifest injustice exception to the law-of-the-case doctrine, and asserts that

the holding in Rott is narrow and should be limited to its facts. We disagree.

Defendant cites Gourlay v Ins Co of N America, 189 Mich 384, 386; 155 NW 483 (1915)

for the proposition that Michigan strictly applies the law of the case doctrine. Gourlay did decline

to adopt other states’ exceptions to the doctrine, but at the same time stated “that this court has the

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power to now reverse its former judgment and, for that purpose power to consider again the

question and arguments heretofore and now presented by the appellant.” Id.at 385-386.2

Further, Rott itself does not indicate that its holding is limited to the facts of that case. In

sum, we conclude that the Supreme Court’s decision in Rott recognizes an exception to the

application of the law-of-the-case doctrine for prior decisions that are clearly erroneous and would

result in manifest injustice if the doctrine were to be applied.

As to the substance of plaintiff’s law-of-the-case claim, we observe that this Court’s earlier

order granting defendant’s motion for peremptory reversal resulted in two key conclusions: (1)

that plaintiff was procedurally barred from pursuing a claim for ordinary negligence, and (2) that

defendant was therefore entitled to entry of an order of JNOV. We agree that plaintiff is

procedurally barred from pursuing a claim for ordinary negligence. However, we find that the

panel’s second determination—that defendant was entitled to entry of an order of JNOV—

qualifies as clearly erroneous, and that this decision has resulted in manifest injustice to plaintiff

under the circumstances presented in this case.

“Whether a claim sounds in ordinary negligence or medical malpractice is a question of

law that is reviewed de novo.” Trowell v Providence Hosp & Med Ctrs, Inc, 502 Mich 509, 517;

918 NW2d 645 (2018). The prior panel’s determination that defendant was entitled to JNOV was

grounded in its belief that plaintiff brought this action under an ordinary negligence theory, rather

than a medical malpractice theory. After reviewing the record of the jury trial in its entirety, we

are of the view that the previous panel erroneously concluded that the plaintiff’s claim sounded in

ordinary negligence and that consequently, the jury’s verdict was predicated solely on a theory of

ordinary negligence. The jury’s award of damages was consistent with an award of damages for

medical malpractice since damage caps are enforced only after a verdict.

Plaintiffs in medical malpractice cases commonly argue that a claim sounds in ordinary

negligence rather than medical malpractice, presumably in an attempt to avoid the stringent

statutory requirements and damages cap applied to medical malpractice claims. This has occurred

with such frequency that our Supreme Court has gone so far as to explain that a plaintiff cannot

couch a medical malpractice claim in a theory of ordinary negligence to avoid the statutory and

procedural requirements attendant to a medical malpractice claim. Dorris v Detroit Osteopathic

Hosp, 460 Mich 26, 43; 594 NW2d 455 (1999). Such procedural requirements include providing

the “health facility” or “health professional” against whom suit will be brought with notice of

2

Defendant also cites Johnson v White, 430 Mich 47, 55; 420 NW2d 87 (1988), claiming that it

establishes that the clearly erroneous exception to the law-of-the-case doctrine is not applicable in

Michigan. In Johnson, however, the Court expressly declined to consider whether the exception

should be adopted for purposes of that case. We also note that this Court has stated that “[e]ven if

[a] prior decision was erroneous, that alone is insufficient to avoid application of the law of the

case doctrine.” Duncan v Michigan, 300 Mich App 176, 189; 832 NW2d 761 (2013) (emphasis

added); see also Augustine v Augustine v Allstate Ins Co, 292 Mich App 408, 425; 807 NW2d 77

(2011).

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intent to file a lawsuit, as well as supporting the complaint with an affidavit of merit from a health

professional. See MCL 600.2912b and MCL 600.2912d.

In the instant case, plaintiff sent a notice of intent and submitted an affidavit of merit with

the complaint satisfying these two requirements for filing a medical malpractice suit and the

allegations made it clear that the claim was one for medical malpractice. The complaint alleged

that the decedent experienced “care and treatment constituting . . . malpractice” and that defendant

owed the decedent “a duty to maintain the standard of care and treatment of its peers within the

professional community of hospital administrations across the country,” which are obviously

statements indicating that the claim was one for medical malpractice.

Moreover, defendant conceded professional negligence, so when the case proceeded to

trial, the jury was charged with determining only whether defendant’s breach of the standard of

care proximately caused the decedent’s death and the amount of damages. In its preliminary

instructions at the start of trial, the trial court advised the jury that defendant had admitted its

negligence, but contested that the craniotomy was the proximate cause of the decedent’s death,

and informed the jury that plaintiff was alleging wrongful death and “medical malpractice.” The

trial court further instructed the jury, in pertinent part:

The plaintiff has the burden of proof on each of the following: That the

plaintiff sustained injury and damages, that the professional negligence or

malpractice of the defendant was a proximate cause of the injury and damages to

the plaintiff.

Your verdict will be for the plaintiff if the defendant was negligent and such

negligence was a proximate cause of the plaintiff’s injuries and if there were

damages.

Your verdict will be for the defendant if the defendant was professionally

negligent or did commit malpractice, but such professional negligence or

malpractice was not a proximate cause of plaintiff’s injuries or damages[.]

In their opening statements, plaintiff’s counsel addressed all of the various ailments that

the decedent suffered following the craniotomy, and described how her health had deteriorated. In

response, defense counsel described the decedent’s health issues both before and after the

craniotomy, and asserted that the unnecessary craniotomy was “inconsequential” to how she

ultimately died. Both parties called several medical experts at trial, but the testimony of these

witnesses principally involved the issue of causation, not professional negligence, which defendant

had conceded. Similarly, during closing arguments, the parties focused on whether the craniotomy

proximately caused the decedent’s death. Our review of plaintiff’s counsel’s closing argument

does not reveal that counsel referred to plaintiff’s claim as one involving ordinary negligence.

In sum, after reviewing the trial record, it is clear that this case proceeded to trial and was

tried as a medical malpractice case. Thus, the record does not support the prior panel’s conclusion

that plaintiff proceeded under a theory of ordinary negligence. Indeed, it is apparent that at trial,

the distinction between a claim for medical malpractice and one for ordinary negligence was

largely irrelevant. The distinction between these two types of claims primarily involves an

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assessment of the defendant’s alleged conduct, and defendant conceded professional negligence.

Consistent with this posture of the case, the trial court instructed the jury in its final instructions

as follows:

The plaintiff has the burden of proof on each of the following: That the

[decedent] sustained injury damages, that the admitted negligence or malpractice

of the defendant was a proximate cause of the injury or damages to the [decedent].

Your verdict will be for the plaintiff if the defendant’s admitted negligence

was a proximate cause of the [decedent’s] injuries and if there were damages.

Your verdict will be for the defendant if the defendant’s admitted

negligence was not a proximate cause of the [decedent’s] injuries or damages or the

[decedent] was not injured or damaged.

Likewise, the jury verdict form did not require the jury to determine whether defendant was

professionally negligent. Instead, the first question on the verdict form asked the jury: “Was

Defendants negligence a proximate cause of injuries or damages claimed to Bimla Nayyar.” The

jury answered this question, “Yes”. The remaining questions on the verdict form pertained to the

jury’s determination of damages.

We are also unable to find a factual or legal basis for the prior panel’s statement that the

jury awarded damages only under a theory of ordinary negligence. First, as explained earlier, the

jury was not required to determine any standard of care that was breached because defendant

conceded the issue of professional negligence. Consequently, the jury was instead asked to

determine whether the alleged negligence was a proximate cause of the decedent’s injuries, which

it would have been required to do for both a medical malpractice and an ordinary negligence claim.

Second, we acknowledge that the prior panel may have been compelled to believe that this was an

ordinary negligence case because the jury’s award of damages exceeded the statutory cap on

damages applicable to a medical malpractice claim. However, the damages award does not

conclusively demonstrate that the jury could only have awarded damages for ordinary negligence

because the jury is not supposed to know that there is a cap on damages in medical malpractice

cases. Verdicts in medical malpractice cases are subject to statutory caps under MCL 600.1483.

However, it is the trial court’s responsibility to reduce a jury verdict in accordance with the

limitations in the statute after trial, if necessary. Importantly, the jury is not permitted to be advised

of those limitations. Specifically, MCL 600.6304(5) provides:

In an action alleging medical malpractice, the court shall reduce an award

of damages in excess of 1 of the limitations set forth in section 1483 to the amount

of the appropriate limitation set forth in section 1483. The jury shall not be advised

by the court or by counsel for either party of the limitations set forth in section 1483

or any other provision of section 1483.

Thus, to the extent that the jury’s verdict exceeded the limitations set forth in MCL 600.1483, it

was up to the trial court to reduce the award after trial pursuant to MCL 600.6304(5). Additionally,

defendant does not assert that the jury was asked to award, or did award, damages for any item for

which damages could not be recovered in a wrongful-death medical malpractice action. As such,

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contrary to the prior panel’s conclusion, the jury’s award of damages in this case is not solely

consistent with a theory of ordinary negligence.

We also reject defendant’s assertion that plaintiff waived any claim for medical malpractice

by asserting in this Court, in response to defendant’s motion for peremptory reversal in Docket

No. 329135, that plaintiff’s claim was one alleging ordinary negligence. In Home-Owners Ins Co

v Perkins, 328 Mich App 570, 585; 939 NW2d 705 (2019), this Court stated:

A waiver is “the intentional and voluntary relinquishment of a known right.”

Moore v First Security Cas Co, 224 Mich App 370, 376; 568 N.2d 841 (1997).

“[A] valid waiver may be shown by express declarations or by declarations that

manifest the parties’ intent and purpose, or be an implied waiver, evidenced by a

party’s decisive, unequivocal conduct reasonably inferring the intent to waive.”

Patel v Patel, 324 Mich App 631, 634; 922 NW2d 647 (2018) (quotation marks

and citations omitted).

After reviewing plaintiff’s response to the motion for peremptory reversal, we are not persuaded

that plaintiff intentionally and voluntarily waived any characterization of his claim as one for

medical malpractice.3 In the context of responding to defendant’s argument that preclusion

doctrines barred any claim for ordinary negligence, plaintiff noted that ordinary negligence and

medical malpractice claims are both grounded in a theory of negligence, with the only difference

being whether the negligence occurred in the course of a professional relationship that implicated

questions of medical judgment. Plaintiff argued that because the 2012 and 2013 complaints both

contained the same claims, preclusion doctrines did not apply to bar his claim. Further, while

stating that he was committed to the position that his claim was one for ordinary negligence, and

did not implicate questions of professional medical expertise, a position similar to that argued in

the trial court, plaintiff acknowledged that he could not change the underlying nature of his claim

and that the gravamen of the claim controlled rather than any labels affixed to the claim. Thus,

although plaintiff’s arguments reflect an effort to persuade this Court that his claim should be

viewed as one for ordinary negligence, they do not reflect an intent to relinquish any right to have

his claim characterized as one for medical malpractice should this Court disagree.

In sum, the record discloses that despite the efforts by plaintiff’s counsel to convince the

trial court, and an earlier panel of this Court, that the case sounded in ordinary negligence, it was

clearly tried as a medical malpractice case, and the jury was so instructed. Moreover, because the

jury was not advised of the limitation on damages applicable to medical malpractice cases, its

verdict cannot be viewed as one awarding damages only under a theory of ordinary negligence.

Under these circumstances, although the prior panel may have properly concluded that plaintiff

was procedurally barred from asserting a claim for ordinary negligence, it clearly erred by holding

3

We also reject defendant’s arguments regarding judicial estoppel. Counsel’s efforts to persuade

the trial court that plaintiff’s claim should be treated as one for ordinary negligence involved

arguments made outside the presence of the jury. Moreover, they do not establish that the case

was actually litigated as an ordinary negligence case, or that the jury awarded damages under that

theory. And as explained earlier, the jury was not required to even decide the issue of professional

negligence because defendant had conceded that issue for purposes of trial.

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that “plaintiff unequivocally proceeded in this action under an ordinary negligence theory and the

jury awarded damages under that theory,” and, as a result, defendant was entitled to entry of an

order of JNOV. Estate of Nayyar (Docket No. 329135), unpub order at 1. Thus, plaintiff satisfied

the first prong for application of the exception to the law-of-the-case doctrine recognized in Rott,

508 Mich at 288, namely, a prior decision that is clearly erroneous.

For the exception to apply, however, plaintiff must also demonstrate that the prior

erroneous decision “would work a manifest injustice.” Id. We conclude that plaintiff has satisfied

this second prong. As noted, defendant conceded that a craniotomy had been performed on

plaintiff when none was called for because of the mislabeling of a CT scan, and the jury concluded

that it caused the death of the plaintiff. While plaintiff’s counsel made several remarks at trial that

one did not need to be a doctor to know that such an error constituted negligence, those comments

bore no relation to the issues that the jury was to determine. The prior panel’s peremptory-reversal

vacated a jury verdict in favor of plaintiff and granted JNOV in favor of defendant. The panel

reached this result after concluding that plaintiff brought the claim under an ordinary negligence

theory and that he was procedurally barred from pursuing such a claim. Again, we agree with the

prior panel that plaintiff could not pursue a claim for ordinary negligence. However, because

defendant admitted professional negligence and given the limited issues the jury was thus called

upon to decide at trial, that determination had no practical effect on the jury’s verdict. Rather, the

only effect of the prior panel’s determination should have been to limit plaintiff’s damages to those

recoverable for medical malpractice, consistent with MCL 600.1483. That was something for the

trial court to remedy posttrial, as specified in MCL 600.6304(5). Under these circumstances,

where professional negligence was conceded and the issues that the jury was called upon to

determine at trial—causation and damages—were irrelevant to whether plaintiff’s claim was one

for ordinary negligence or medical malpractice, it was manifestly unjust to vacate the jury’s verdict

and enter a judgment of JNOV in favor of defendant, thereby precluding plaintiff from any

recovery whatsoever. Accordingly, plaintiff has satisfied the requirements for avoiding

application of the law-of-the-case doctrine where a prior decision was both clearly erroneous and

would work a manifest injustice.

For the foregoing reasons, we conclude that we are not bound by the panel’s prior

determination that defendant is entitled to JNOV. Under these circumstances, the appropriate

remedy is to vacate the trial court’s January 21, 2022 order granting JNOV in favor of defendant

and remand for entry of a judgment in favor of plaintiff.

IV. CONCLUSION

We vacate the trial court’s January 21, 2022 order granting JNOV in favor of defendant

and remand for entry of a judgment in favor of plaintiff consistent with the jury’s verdict, subject

to reduction by the trial court in accordance with MCL 600.6304(5), consistent with

MCL 600.1483(1).

We do not retain jurisdiction.

/s/ Michelle M. Rick

/s/ Douglas B. Shapiro

/s/ Anica Letica

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