Opinion
SC: 162031 COA: 348221
11-29-2021
Marie GEROW, Personal Representative of the Estate of Henry Gerow, Jr., Plaintiff-Appellant, v. Ronald L. THIES, Jr., M.D., and Emergency Medicine Specialists, PC, Defendants-Appellees, and St. John River District Hospital, Defendant.
Order
On Order of the Court, the Application for Leave To Appeal the July 2, 2020 Judgment of the Court of Appeals Is Considered, and It Is Denied, Because We Are Not Persuaded That the Question Presented Should Be Reviewed By This Court.
Cavanagh, J. (dissenting)
The circuit court granted summary disposition to defendants under MCR 2.116(C)(10) in this medical malpractice action, and the Court of Appeals affirmed on the theory that there was no genuine issue of material fact with regard to causation. However, the circuit court and the Court of Appeals have failed to address testimony highlighted by the dissenting judge in the Court of Appeals, and I agree with the dissenting judge that this testimony creates a genuine issue of material fact.
Henry Gerow was seen at the emergency department of defendant St. John River District Hospital and evaluated by defendant Ronald L. Thies, Jr., M.D. Dr. Thies did not obtain a chest x-ray, and three days later Gerow died from pneumonia and sepsis. Plaintiff sued, alleging that the standard of care was to obtain a chest x-ray and that a chest x-ray would have revealed pneumonia. In any medical malpractice action, the plaintiff "bears the burden of proving (1) the applicable standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4) proximate causation between the alleged breach of duty and the injury." Rock v. Crocker , 499 Mich. 247, 255, 884 N.W.2d 227 (2016). This motion was resolved on the basis of the fourth element, under the theory that plaintiff failed to show that if a chest x-ray had been taken, it would have revealed pneumonia. The Court of Appeals affirmed, reasoning that Gerow did not display typical symptoms of pneumonia such as fever, chills, or a cough, and highlighted the following from the deposition of plaintiff's expert Dr. Marc Eckstein:
Q. How do you know [a chest x-ray ] would have shown a pneumonia when [Gerow] doesn't have any of the signs of
symptoms that are consistent and compatible with pneumonia ?
A. I can't say for certain.
* * *
A. I can't say with certainty ... that the x-ray would have shown a pneumonia, correct.
I agree with the following analysis from the dissenting judge in the Court of Appeals:
Note that Dr. Eckstein's answer was phrased in terms of "certainty." It did not address the actual standard: probability.
Sadly, the majority has mischaracterized the record regarding Dr. Eckstein's proximate cause testimony by focusing only on irrelevant statements about "certainty." [ Gerow Estate v. Thies , unpublished per curiam opinion of the Court of Appeals, issued July 2, 2020 (Docket No. 348221) ( GLEICHER , J., dissenting), p. 3, 2020 WL 3621271.]
The dissent then notes the following testimony, which the Court of Appeals majority not only failed to quote, but failed to acknowledge in any way:
Q. Is it your belief that somehow a chest x-ray would have shown these microabscesses in the lungs?
A. It would have shown a pneumonia , but not the microabscesses.
* * *
Q. Well, with what you saw in the autopsy, would you believe that a lower lobe pathology would be noted in the chest x-ray ?
A. Yes.
* * *
A. I think, based upon the autopsy, I think it's within medical probability the x-ray ... would have been helpful.
* * *
Q. I think you said that you couldn't say with certainty that a chest x-ray would have shown pneumonia, but you can say—with what degree of probability can you say a chest x-ray would have shown some pneumonia ?
[Defense Counsel ]: Again, object to form.
A. I think it's within medical probability.
Q. So more probable than not.
A. Yes. [Emphasis added.]
As pointed out by the dissenting judge, neither caselaw nor the governing statute, MCL 600.2912a(2), requires a plaintiff to establish conclusive evidence of causation. Rather, a medical malpractice plaintiff need only establish that he or she suffered an injury that more probably than not was proximately caused by the defendant's negligence. This Court has held that an expert opinion is too speculative to create a genuine issue as to causation when the opinion addresses what would have happened in merely hypothetical circumstances. See Skinner v. Square D Co. , 445 Mich. 153, 174, 516 N.W.2d 475 (1994) (holding that no "authentic issue of causation" was established where "each expert either assumed, or was asked to assume, that (somehow) the wires were unhooked, and that the power was on when Mr. Skinner began working on the machine" that caused his death by electrocution). But Dr. Eckstein was not merely hypothesizing a predicate state of affairs—namely, that the decedent had pneumonia ; he was concluding that the postmortem data supported that hypothesis. MRE 702 provides the proper tools for determining whether an expert's probabilistic inferences from actual data amount to "junk science" because the data or inferential methods are unreliable. Gilbert v. DaimlerChrysler Corp. , 470 Mich. 749, 782, 685 N.W.2d 391 (2004). The purpose of those tools is undermined when they can be replaced on the back end by a court's simple declaration that an expert's opinion is "mere speculation." Defendants did not challenge Dr. Eckstein's qualifications or the reliability of his data or methods. Therefore, Dr. Eckstein's testimony that the decedent more probably than not had pneumonia when he was treated, coupled with Dr. Gordon's testimony that antibiotics would have cured the pneumonia, created a genuine issue of material fact with regard to causation. Accordingly, I would reverse and remand this case to the circuit court.
Welch, J., joins the statement of Cavanagh, J.