Nursing malpractice; Expert testimony requirement; Common-knowledge exception; Elher v Misra; Hospital vicarious liability; Cox v Flint Bd of Hosp Managers; Cause in fact; Craig v Oakwood Hosp; Res ipsa loquitur; Woodard v Custer; Abandonment on appeal; Certified registered nurse anesthetist (CRNA); Standard of care (SOC)

The court held that plaintiff failed to create a genuine issue of material fact on the nursing-malpractice/vicarious-liability claim against defendant-hospital and the malpractice claim against defendant-CRNA Ford, but did create a genuine issue of material fact on malpractice against defendant-Dr. Hsu, requiring partial reversal. Plaintiff alleged he suffered a severe median nerve injury to his left arm during an elective, robotically assisted bariatric surgery that lasted nearly six hours while his left arm was positioned on an arm board and monitored intraoperatively. The trial court granted defendants’ motions for summary disposition. On appeal, the court held that the hospital was entitled to summary disposition on the nursing-malpractice/vicarious-liability theory because plaintiff’s RN expert “failed to identify any act or omission by the nurses constituting a breach of the” SOC. Further, plaintiff “did not take the depositions of the nonparty nurses,” and without evidence that “any specific nurse breached the applicable” SOC, the hospital could not be vicariously liable. The court also found plaintiff’s incomplete-discovery argument unavailing because discovery had closed, he did not depose the nurses while it was open, and “‘[m]ere speculation that additional discovery may uncover supporting evidence’” was insufficient. But the court held the trial court erred by dismissing the malpractice claim against Dr. Hsu because it “completely disregard[ed]” expert testimony that the injury “do[es] not occur absent improper positioning coupled with failure to detect such malposition through appropriate periodic physical assessments,” including testimony that visual observation alone was inadequate and the injury “would not have occurred had a proper intraoperative assessment been performed.” The court also found plaintiff raised a triable causation issue through res ipsa loquitur, noting the doctrine “‘entitles a plaintiff to a permissible inference of negligence from circumstantial evidence’” and concluding plaintiff “submitted facts, which, if believed, would establish all four elements of the doctrine of res ipsa loquitur.” The court next found dismissal of CRNA Ford proper because plaintiff “failed to proffer admissible expert testimony establishing Ford’s breach of the applicable” SOC, and did not “cogently articulate how the trial court erred” as to this claim. Affirmed in part, reversed in part, and remanded.