JW's lose a medical malpractice case | COA affirms ruling in colonoscopy case | Defendant’s motion for summary disposition denied.

[Jack Ryan]

COA affirms ruling in colonoscopy case

Defendant’s motion for summary disposition denied

By: Thomas Franz in News Stories August 22, 2019

A Michigan Court of Appeals panel affirmed an Oakland Circuit Court ruling in denying a defendant’s motion for summary disposition in a medical malpractice case following the death of a 79-year-old woman after a colonoscopy.

In Estate of Effie Taylor v. University Physician Group (MiLW No. 07-100797, 15 pages), the COA determined in a published opinion that questions of fact existed in the case.

Surgery Medical Malpractice MAINJudge Elizabeth L. Gleicher wrote the opinion, joined by Judge Cynthia Diane Stephens. Judge Colleen A. O’Brien dissented.

Background

The case stems from a colonoscopy performed by Dr. Manuel Sklar on Effie Taylor. The COA wrote that during the operation, Sklar observed lesions in Taylor’s colon that he believed were arteriovenous malformations (AVM). Sklar biopsied the lesions.

Three days later, Taylor developed colorectal bleeding and died despite the emergent removal of her entire colon.

Legal argument

The plaintiff claims that Sklar breached the standard of care by biopsying the lesions since Taylor, who was 79 years old, had recently taken blood thinner and was a devout Jehovah’s Witness who refused blood transfusions.

The plaintiff’s expert witness, Dr. Todd Eisner, testified the biopsies caused the bleeding that led to Taylor’s death.

Sklar’s defense focused on causation, the COA wrote. Sklar’s expert witness, Dr. Veslav Stecevic, performed an emergent colonoscopy on Taylor a day before she died. Stecevic testified that the bleeding originated at the site of a ruptured diverticulum and claimed that to be incidental to the biopsies and a random event.

The COA wrote that the defendants argued that Stecevic’s testimony must be believed and demanded the entry of summary disposition in favor of Sklar.

Sklar acknowledged during his deposition of being aware that Taylor had been taking a blood thinner before the colonoscopy. She was instructed to stop taking the blood thinner five to seven days before the procedure but didn’t stop until three days prior.

Eisner said Taylor still had the blood thinner in her system during the colonoscopy, and that would be another reason to not take biopsies in a Jehovah’s Witness.

Sklar’s report of the colonoscopy noted that Taylor’s ascending colon appeared to have multiple small blood vessels suggesting extensive AVM malformation. The report also noted that biopsies were taken and the final diagnoses were diverticulosis and arteriovenous malformations.

Sklar confirmed at his deposition that he biopsied a lesion and the COA wrote that his records don’t support that he biopsied a diverticulum or reported any diverticular bleeding.

Three days after the colonoscopy, Taylor went to Beaumont Hospital with rectal bleeding. Stecevic performed a colonoscopy to locate the bleeding’s source.

He claimed he didn’t see any AVMs during the exam and further claimed that Sklar had not biopsied an AVM despite Sklar’s records and testimony supporting that he did.

Stecevic said Taylor was bleeding from a diverticulum, and that just happened to be a random event that it occurred three days after the original colonoscopy.

Stecevic injected epinephrine into what he thought was a bleeding diverticulum, and he noted it was successful in staunching the hemorrhage coming from Taylor’s colon, according to the COA opinion. However, Taylor continued to bleed and died after a surgeon removed her entire colon.

Eisner disputed Stecevic’s theory of the diverticular bleeding by stating it’s very rare for a person of any age and it’s not a complication of a colonoscopy.

The defendants filed a motion for summary disposition based on Stecevic’s testimony and argued that Eisner ignored their evidence.

The plaintiff pointed out that her claim involved informed consent as well as Sklar’s negligence in biopsying an AVM.

The trial court denied the defendants’ motion by asserting the plaintiff produced sufficient expert testimony to establish a question of fact regarding whether the defendant negligently performed biopsies that caused the fatal bleeding.

Analysis

The COA wrote that the testimony of the three doctors created a question of fact regarding the source of Taylor’s fatal bleed.

Regarding the medical malpractice claim, the COA wrote that the defendants’ arguments were flawed based on Sklar’s and Stecevic’s differing views.

“The evidence supports several reasonable factual conclusions relevant to causation, including that Mrs. Taylor had both an AVM that caused unchecked bleeding after it was biopsied, and a bleeding diverticulum,” the court wrote. “Multiple conflicts in the evidence give rise to genuine issues of material fact regarding the cause of Taylor’s fatal bleed, precluding summary disposition.”

The court went on to write that while the doctors’ opinions are based on facts of record, their testimony is still subject to being challenged since their views are based on their perceptions of visual images.

“Dr. Stecevic’s testimony that a diverticulum was bleeding is subject to challenge for precisely the same reason that a jury may disbelieve that Dr. Sklar biopsied an AVM,” the COA wrote. “Both are subject to credibility challenges, Dr. Sklar as a defendant, and Dr. Stecevic as a retained expert.”

Due to the many questions of fact, the COA addressed in the opinion, it affirmed and remanded the case to the circuit court to continue.

Dissent

In her dissent, Judge Colleen A. O’Brien wrote that Stecevic testified that he looked for an active bleed at the sites where Sklar biopsied, but couldn’t find one.

Stecevic took pictures of the areas he searched, and O’Brien wrote that the photos show that Stecevic had a clear view of the area.

“His testimony established that, at the time of Taylor’s second colonoscopy, she was not bleeding from the areas biopsied by Dr. Sklar,” O’Brien wrote. “If Taylor was not bleeding from the biopsy sites, the plaintiff cannot establish that Dr. Sklar’s biopsies caused Taylor’s death, and defendants are entitled to summary disposition.”

O’Brien continued to write that the plaintiff didn’t offer any evidence to establish a question of fact whether Taylor was bleeding from the biopsy sites during the second colonoscopy.

“Instead, Dr. Eisner testified that he believed that the biopsy sites continued to bleed because it was the most likely explanation for the blood in Taylor’s colon. But it is unclear why Dr. Eisner discredited Dr. Stecevic’s testimony that he searched for but could not find an active bleed at the biopsy sites,” O’Brien wrote.

Attorney’s comments

Plaintiff’s attorney Mark R. Bendure of Bendure & Thomas in Bloomfield Hills said the case was relatively straightforward from a strategy standpoint.

“I think we also had a two-pronged argument that even if the cause of the hemorrhage was the way they claimed, that was still the result of the anticoagulant therapy,” Bendure said. “We were able to say we win on causation, but even if the cause was the way the defendants claim, that still sets forth a question of fact for the jury based on the anticoagulant theory.”

Defense attorney Anita Comorski of Tanoury Nauts McKinney & Garbarino PLLC in Livonia said the defendants are weighing additional appellate options following the COA ruling.

“Defendants believe that the majority opinion misinterprets both the facts and the applicable law,” Comorski said in a written response to questions on this case. “As was recognized in the dissent authored by Judge O’Brien, summary disposition in defendants’ favor was proper since ‘plaintiff did not offer any evidence to establish a question of fact whether Taylor was bleeding from the biopsy sites.’”

Comorski said the ruling violates case law stemming from Badalamenti v William Beaumont Hospital-Troy (1999).

“The apparent conclusion by the majority … violates the rule that expert testimony is inadmissible if it is inconsistent with the testimony of a witness who personally observed an event, and the expert is unable to reconcile his testimony except by disparaging the witness’s power of observation,” Comorski said.

https://milawyersweekly.com/news/2019/08/22/coa-affirms-ruling-in-colonoscopy-case/

[Arauna]

Sad. Even in healthy individuals, a colonoscopy can be dangerous. In old age there is usually thinning of the colon which makes it more dangerous.  I think the doctor was not thinking clearly when he took the biopsy. He was over eager to help and it was routine for him.  The patient was to blame too by not stopping her blood thinners as instructed.

[James Thomas Rook Jr.]

JW's lose a medical malpractice case |.......

The headline is misleading.   JWs did not lose the medical malpractice case .... someone who happened to be a JW lost it, if it was in fact lost.

When I used to skydive, I saw people who had been drunk the night before hastily throw their parachute together into the container to catch the next lift up to 10,000 feet.

The sport is unforgiving.  Sometimes you can "luck out", sometimes you buy the farm.

Same thing with Effie Taylor, who SHOULD have not taken blood thinner for SEVEN days before the operation ( which I had three months ago, by the way ... at age 72)

The cards she was dealt were Aces and Eights, and she lost.

"Stuff Happens".

 

......

[Arauna]

8 hours ago, James Thomas Rook Jr. said:

The headline is misleading.

Agreed. But what do you expect when malice is ruling the head of the person.

[James Thomas Rook Jr.]

I would like to keep some such person at gunpoint ... but that's just me !