Opinion
355496
11-04-2021
TRAVIS STRASSER, Plaintiff-Appellee, v. OAKWOOD HERITAGE HOSPITAL, OAKWOOD HEALTHCARE, INC., BEAUMONT HOSPITAL-TAYLOR, BEAUMONT HEALTH, and BEAUMONT HEALTH SYSTEM, Defendants, and GOKUL RAGHUNATH TOSHNIWAL, M.D., and ANESTHESIA ASSOCIATES OF ANN ARBOR PLLC, Defendants-Appellants
UNPUBLISHED
Wayne Circuit Court LC No. 18-014954-NH
Before: Jane E. Markey, P.J., and Beckering and Mark T. Boonstra, JJ.
Per Curiam.
Defendants Gokul Toshniwal, M.D., and Anesthesia Associates of Ann Arbor PLLC appeal by leave granted the trial court's order denying their motion to strike plaintiff Travis Strasser's expert witness. We reverse and remand for entry of an order striking plaintiff's expert witness.
Strasser v Oakwood Heritage Hosp, unpublished order of the Court of Appeals, entered January 27, 2021 (Docket No. 355496).
I. BACKGROUND AND PROCEDURAL HISTORY
In his complaint, plaintiff alleged that on June 8, 2016, he went to defendant hospital "for the purpose of care and treatment, more particularly an open reduction and internal fixation of his fractured left patella." Plaintiff contended that he "clearly and specifically informed all Defendants that he did not want any spinal or regional blocks for post-operative pain control." (Emphasis omitted.) The anesthesiologist for the surgery was Dr. Toshniwal. Plaintiff alleged that despite his directive that no nerve block be used, Dr. Toshniwal, shortly after the surgery was completed, performed "a post-operative regional block of the left adductor canal" absent properly-obtained informed consent. Plaintiff maintained that Dr. Toshniwal subverted plaintiff's wishes by obtaining purported informed consent from other persons or plaintiff's family members. Plaintiff further alleged that the adductor canal block directly caused severe "left femoral neuropathy," resulting in the loss of "motor activities in the left leg, atrophy, pain, decreased sensation distribution, and numerous other problems."
Our reference to "defendant hospital" pertains collectively to defendants Oakwood Heritage Hospital, Oakwood Healthcare, Inc., Beaumont Hospital-Taylor, Beaumont Health, and Beaumont Health System, which entities are not involved in this appeal.
An "adductor canal block . . . is an interfascial plane block performed in the thigh. It anesthetizes multiple distal branches of the femoral nerve including the saphenous nerve and branches of the mixed sensory and motor nerves to the quadricep, as well as branches of the obturator nerve." Adam W. Amundson, M.D., and Rebecca L. Johnson, M.D., Adductor Canal Block Procedure Guide <http://www.uptodate.com/contents/adductor-canal-block-procedure-guide> (accessed August 30, 2021). In this opinion, we shall occasionally refer to the "adductor canal block" performed on plaintiff as a "nerve block."
In support of his medical malpractice complaint, plaintiff attached an affidavit of merit executed by Robert A. Savala, M.D. Mirroring language in the complaint, Dr. Savala averred that Dr. Toshniwal breached the applicable standard of care by failing to obtain informed consent from plaintiff, ignoring plaintiff's stated desire for no spinal or regional nerve blocks, supplanting plaintiff's wishes by obtaining consent from others, failing to explain the risks of doing a nerve block, including femoral neuropathy, and by not offering alternatives for pain control other than the adductor canal block. Neither in the complaint nor the affidavit of merit was it asserted that Dr. Toshniwal committed medical malpractice with respect to the actual performance of the adductor canal block. Dr. Savala and Dr. Toshniwal are both board-certified in anesthesiology and in the subspecialty of pain medicine.
According to defendants, plaintiff was treated with three narcotics, but he screamed and shouted about continued pain while he was in the post-anesthesia care unit (PACU). Dr. Toshniwal informed plaintiff that the opioid pain medications that he was receiving could not be given in higher doses, and the two then discussed the possibility of an adductor canal block being performed. Plaintiff allegedly told Dr. Toshniwal to do whatever he needed to manage the pain. Dr. Toshniwal obtained written consent from plaintiff's fiancée and administered the nerve block. Defendants claimed that a postoperative nerve block is commonly administered by an anesthesiologist to relieve pain related to the surgery.
In a motion to strike Dr. Savala as an expert witness, defendants argued that Dr. Savala was not qualified to testify against Dr. Toshniwal. In his deposition, Dr. Toshniwal testified that 30 to 40 percent of his practice concerned pain medicine, while 60 to 70 percent was devoted to anesthesiology. He performed three or four hundred nerve blocks every year. In answers to interrogatories, Dr. Toshniwal indicated that he provided "anesthesiology care and treatment [for plaintiff] during surgery and post-surgery on June 8, 2016." When asked at his deposition whether someone else could have provided different relief to plaintiff at the time, Dr. Toshniwal responded, "I'm the anesthesiologist." Dr. Toshniwal testified that he was present throughout the entire surgical process, including the period that plaintiff was in the PACU. Dr. Toshniwal observed that "[p]ostoperatively the opioids administered were not effectively managing Plaintiff's pain safely[;] [t]herefore, alternatives such as an adductor canal block were discussed with Plaintiff, his significant other, and the surgeon."
In his deposition, Dr. Savala testified that for many years 100 percent of his time was devoted to managing acute and chronic pain. According to Dr. Savala, some of his work takes place at an outpatient surgery center where various types of surgeries are performed. He indicated that he performs nerve blocks three days per week in his practice. Dr. Savala noted, however, that he had not performed a femoral nerve block, which would encompass the adductor canal block, in a dozen years. When asked why he had not done so, Dr. Savala explained:
Well, because when it comes to those procedures, the operating room anesthesiologists are typically the ones that are providing those services. I'm providing, you know, nerve block procedures for the diagnosis and treatment of acute chronic pain problems; whereas, these femoral nerve blocks are most commonly used in preparation for perioperative treatment.
Dr. Savala further testified as follows:
Q. I said I'm describing femoral blocks as being used to treat acute pain. You're calling it perioperative pain, but it's not chronic pain, correct?
A. Well, what we typically do is that you are putting in these regional blocks, we call them peripheral nerve blocks, you know, whether that was femoral or . . . .
Q. Right.
A. [T]hose will typically be done preoperatively and in anticipation that you're going to use the pain relief, the analgesia and the anesthesia that you get from it, to aid in the performance of surgery and then to help treat postoperative pain. So we usually put them in before the case begins, but in some cases we use them afterwards, like in the case of [plaintiff].
Q. Right. I've got it. Can we call the block that was done here a regional block?
A. Yes, you can.
Q. When is the last time that you performed a regional block to assist with the perioperative pain and postoperative pain?
A. Oh, boy, that was probably - oh, I'd say the last time I was in the operating room, so that was about a dozen years ago.
Dr. Savala asserted that the adductor canal block in this case was done for pain management. Dr. Savala testified about what "an experienced and professional anesthesiologist understands [regarding] possible scenarios . . . in controlling postoperative pain . . . ." He noted that "in anesthesia, more than any other field of medicine, [you must] really make sure that you understand the course of what's happening, because many times patients are incapacitated or unable to answer . . . questions." Dr. Savala opined that Dr. Toshniwal could have handled things differently in the operating room, such as administering longer-lasting opiates. Dr. Savala was of the view that Dr. Toshniwal had not communicated well with plaintiff before the surgery.
In the motion to strike, defendants argued that Dr. Toshniwal is a board-certified anesthesiologist who, although board-certified in the subspecialty of pain medicine, spends the majority of his time practicing anesthesiology. Therefore, according to defendants, anesthesiology and not pain medicine is the one most relevant specialty applicable to the instant case. Because Dr. Savala spent nearly 100 percent of his time in the practice of the subspecialty of pain medicine in the preceding 12 years, defendants maintained that he was not qualified to offer his testimony regarding the standard of care in this action.
Plaintiff responded that the case involved a pain-medicine procedure, not general anesthesia. Plaintiff pointed out that Dr. Toshniwal was the Pain Consultant Chairperson at Beaumont Taylor Hospital. Plaintiff argued that Drs. Toshniwal and Savala shared the same qualifications and that defendants were attempting to disqualify Dr. Savala merely because he spent the majority of his time in pain medicine. According to plaintiff, Dr. Toshniwal was performing postoperative pain medicine as indicated in his deposition. Plaintiff maintained that the pertinent conduct at the time of the alleged malpractice involved the management of pain, not anesthesiology in general. Plaintiff further noted that the action concerned informed consent rather than the surgery itself. In the alternative, plaintiff requested that the trial court allow him to amend his witness list if the court found merit in defendants' position. In challenging the motion to strike, plaintiff included an affidavit from Dr. Savala, which was separate and distinct from his affidavit of merit, averring that because the nerve block was performed after plaintiff's surgery, it was not related to the anesthesia given plaintiff by Dr. Toshniwal.
Defendants replied that the lawsuit involved anesthesiology, not pain medicine, and that anesthesia services entail postoperative nerve blocks. Defendants argued that management of a patient immediately before, during, and right after surgery is within the realm of an anesthesiologist, whereas pain medicine involves the management of chronic pain. Defendants emphasized that Dr. Savala had not performed the type of postoperative adductor canal block used in this case in over ten years because he had not been practicing anesthesiology.
At the hearing on the motion to strike Dr. Savala, the trial court ruled, in relevant part, as follows:
I think it, it was a pain management procedure, the, the nerve block. [B]ased on the evidence, the documents that both sides presented, and then Woodard v Custer says that it's the relevant specialty that was being performed. And it is pain management. But this seems, to me, and maybe I just got lost in my head, it seems to be much ado about nothing, because, Plaintiff, I don't think, is alleging that the pain, pain management was done wrong. Or that the nerve block was done incorrectly. But it was done without consent. [Quotation format restructured.]
Defense counsel then voiced disagreement with the trial court that informed consent was the only issue. The court, however, renewed its belief that informed consent was the issue, not whether the actual procedure was "performed incorrectly." Plaintiff's counsel stated that the trial court was exactly correct-the case concerned informed consent, not negligence in the performance of the adductor canal block. The trial court reiterated that it was denying the motion to strike because it was clear that a pain-medicine procedure was at the heart of plaintiff's action, and, consequently, pain medicine was the one most relevant specialty.
An order was entered denying defendants' motion to strike Dr. Savala's testimony for the reasons stated on the record at the hearing. Defendants moved for reconsideration, submitting new affidavits from two expert witnesses, Paul Jaklitsch, M.D., a board-certified anesthesiologist who was not a pain-medicine doctor, and Dennis Dobrit, D.O., who was board-certified in both pain medicine and anesthesiology. Both opined that the one most relevant specialty for purposes of the instant lawsuit was anesthesiology. The trial court denied the motion for reconsideration, ruling, in pertinent part:
Defendants reiterate their position that the one most relevant specialty . . . is . . . anesthesiology rather than pain medicine. This Court notes that Defendants have made an effort to bolster their position via submission of additional documentary evidence in the form of affidavits from alleged expert witnesses. However, Defendants' further development of the evidence is something that could have, and should have, been done the first time this issue was raised during the proceedings on the underlying motion to exclude the testimony of and strike expert Robert Savala, M.D. . . . [T]his Court's focus when reviewing a motion for reconsideration is limited to the initial, underlying motion, the evidence that was presented at time, and the arguments that were made in support thereof. As such, defendants' argument on this issue, as presented in the instant motion for reconsideration, remains unpersuasive.
Defendants appeal by leave granted.
II. ANALYSIS
A. APPELLATE ARGUMENTS
On appeal, defendants argue that the trial court erred by concluding that Dr. Savala was qualified to testify against Dr. Toshniwal. Defendants contend that although both doctors were board-certified in anesthesiology and pain medicine, Dr. Toshniwal was practicing anesthesiology at the time of the alleged malpractice, but Dr. Savala had been devoting 100 percent of his time to the practice of pain medicine, which is why it had been at least 12 years since Dr. Savala last performed a comparable nerve block. Defendants further maintain that the trial court erred by considering Dr. Savala's affidavit because it contradicted his deposition testimony. Defendants additionally assert that the trial court should have taken into consideration the affidavits that they had offered on reconsideration in an effort to counter Dr. Savala's affidavit.
Again, we are not speaking of Dr. Savala's affidavit of merit; we are referencing the affidavit that was prepared and submitted as part of the motion for summary disposition.
Plaintiff argues that the trial court properly ruled that the one most relevant specialty was pain medicine. And there is no dispute that Dr. Savala was board-certified in pain medicine and had been practicing pain medicine. Plaintiff notes that defendants relied in part on an expert in pain medicine for their affidavit of meritorious defense. Plaintiff also contends that defendants did not raise any issue below regarding the propriety of Dr. Savala's affidavit; therefore, that issue is unpreserved for appeal.
Defendants reply that it is illogical to conclude that Dr. Toshniwal was practicing anesthesiology before and during the surgery but immediately began practicing the specialty of pain medicine directly after the operation. As framed by defendants, Dr. Toshniwal did not suddenly change hats after the surgery.
B. STANDARDS OF REVIEW
In Estate of Horn v Swofford, DO, __ Mich.App. __, __; __ N.W.2d __ (2020); slip op at 3-4, this Court, addressing whether the one most relevant specialty was radiology or neuroradiology, set forth the pertinent standards of review:
This case turns on the interpretation of MCL 600.2169, and "[t]he construction of MCL 600.2169 presents a question of law subject to de novo review." Crego v Edward W Sparrow Hosp Ass'n, 327 Mich.App. 525, 531; 937 N.W.2d 380 (2019); see also Woodard v Custer, 476 Mich. 545, 557; 719 N.W.2d 842 (2006). We review for an abuse of discretion a trial court's decision concerning the qualifications of a proposed expert witness to testify. Crego, 327 Mich.App. at 531. When a trial court's decision falls outside the range of principled and reasonable outcomes, the court abuses its discretion. Id. A court necessarily abuses its discretion when a particular ruling constitutes an error of law. Id.
C. STATUTORY CONSTRUCTION
When construing a statute, the primary rule of interpretation is to discern and give effect to the intent of the Legislature, and the most reliable indicator of that intent is the plain language of the statute. Crego, 327 Mich.App. at 531. "Such language must be enforced as written, giving effect to every word, phrase, and clause." Id. (quotation marks and citation omitted). Additional judicial construction is only permitted if the statutory language is ambiguous. Id. "When determining the Legislature's intent, statutory provisions are not to be read in isolation; rather, they must be read in context and as a whole." Id. (citation omitted).
D. MEDICAL MALPRACTICE FRAMEWORK AND MCL 600.2169
"The plaintiff in a medical malpractice action bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury." Cox v Flint Bd of Hosp Managers, 467 Mich. 1, 10; 651 N.W.2d 356 (2002) (quotation marks and citation omitted); see also Estate of Horn, __ Mich.App. at __; slip op at 4. "Failure to establish any one of these four elements is fatal to a plaintiff's medical malpractice suit." Estate of Horn, __ Mich.App. at __; slip op at 4 (citation omitted). In Cudnik v William Beaumont Hosp, 207 Mich.App. 378, 382; 525 N.W.2d 891 (1994), this Court noted that the "standard of care is founded upon how other doctors in that field of medicine would act and not how any particular doctor would act." (Quotation marks and citation omitted.)
MCL 600.2912d(1) requires a medical malpractice plaintiff to "file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169." MCL 600.2169 provides, in pertinent part:
(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision
(c) [inapplicable], during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is
licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
When a defendant doctor is a specialist, the expert witness for the plaintiff must have specialized in the same specialty as the defendant doctor at the time of the purported malpractice. Woodard, 476 Mich. at 560-561; Estate of Horn, __ Mich.App. at __; slip op at 5; Estate of Norczyk v Danek, 326 Mich.App. 113, 118; 931 N.W.2d 59 (2018). The plaintiff's expert must have the same board-certification as the defendant physician if in fact the defendant is board-certified in the relevant specialty. Woodard, 476 Mich. at 560; Estate of Horn, __ Mich.App. at __; slip op at 5; Estate of Norczyk, 326 Mich.App. at 118. Although specialties and board certificates must match, not all of them are required to match. Woodard, 476 Mich. at 558; Estate of Horn, __ Mich.App. at __; slip op at 5; Estate of Norczyk, 326 Mich.App. at 118. "Because an expert witness is not required to testify regarding an inappropriate or irrelevant standard of medical practice or care, § 2169(1) should not be understood to require such witness to specialize in specialties and possess board certificates that are not relevant to the standard of medical practice or care about which the witness is to testify." Woodard, 476 Mich. at 559. The language of MCL 600.2169(1)(a) only requires one specialty to match, not multiple specialties. Woodard, 476 Mich. at 559; Estate of Horn, __ Mich.App. at __; slip op at 5. Stated otherwise, "the plaintiff's expert does not have to match all of the defendant physician's specialties; rather, the plaintiff's expert only has to match the one most relevant specialty." Woodard, 476 Mich. at 567-568 (emphasis added); see also Estate of Horn, __ Mich.App. at __; slip op at 5; Estate of Norczyk, 326 Mich.App. at 118. The specialty that a defendant physician is engaged in during the course of the alleged medical malpractice constitutes the one most relevant specialty. Woodard, 476 Mich. at 560; Estate of Horn, __ Mich.App. at __; slip op at 5; Estate of Norczyk, 326 Mich.App. at 118.
In Woodard, the Michigan Supreme Court discussed the meaning of the terms "specialty" and "specialist" as used in MCL 600.2169(1)(a), along with touching on the subject of subspecialties:
Both the dictionary definition of "specialist" and the plain language of § 2169(1)(a) make it clear that a physician can be a specialist who is not board certified. They also make it clear that a "specialist" is somebody who can potentially become board certified. Therefore, a "specialty" is a particular branch of medicine or surgery in which one can potentially become board certified. Accordingly, if the defendant physician practices a particular branch of medicine or surgery in which one can potentially become board certified, the plaintiff's expert must practice or teach the same particular branch of medicine or surgery.
Plaintiffs argue that § 2169(1)(a) only requires their expert witnesses to have specialized in the same specialty as the defendant physician, not the same subspecialty. We respectfully disagree. . . . [A] "subspecialty" is a particular branch of medicine or surgery in which one can potentially become board certified that falls under a specialty or within the hierarchy of that specialty. A subspecialty, although a more particularized specialty, is nevertheless a specialty. Therefore, if a defendant physician specializes in a subspecialty, the plaintiff's expert witness must have specialized in the same subspecialty as the defendant physician at the time of the occurrence that is the basis for the action. [Woodard, 476 Mich. at 561-562.]
E. CASELAW FACTUAL SCENARIOS
We shall now examine some of the particular circumstances addressed by this Court and our Supreme Court in the caselaw. In Woodard, a fifteen-day-old child suffered leg fractures, allegedly caused by negligent medical care while the child was being treated in a pediatric critical or intensive care unit. Woodard, 476 Mich. at 554. The defendant physician was board-certified in pediatrics and additionally held certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine, which certificates were considered the equivalent of board-certification. Id. at 554, 565. The plaintiff's proposed expert, however, was only board-certified in pediatrics and had no certificates of special qualifications. Id. at 554-555. The Woodard Court held that the one most relevant specialty in the suit was pediatric critical care medicine; consequently, the plaintiff's expert did not satisfy the same specialty requirement of MCL 600.2169(1)(a). Id. at 576.
In Hamilton v Kuligowski, the companion case to Woodard, the underlying facts were presented as follows:
Plaintiff alleges that the defendant physician failed to properly diagnose and treat the decedent while she exhibited prestroke symptoms. The defendant physician is board certified in general internal medicine and specializes in general internal medicine. Plaintiff's proposed expert witness is board certified in general internal medicine and devotes a majority of his professional time to treating infectious diseases, a subspecialty of internal medicine. [Woodard, 476 Mich. at 556.]
The Michigan Supreme Court ruled that the plaintiff's proposed expert did not qualify to give testimony with respect to the standard of care under MCL 600.2169, commenting that the expert himself conceded that he was "not sure what the average internist sees day in and day out." Id. at 577-578.
Estate of Horn concerned "a medical malpractice action involving the death of Linda Horn allegedly caused by the negligence of defendant Michael J. Swofford, D.O., with respect to his interpretation of a cranial computerized tomography (CT) scan . . . ." Estate of Horn, __ Mich.App. at __; slip op at 1. Dr. Swofford was a board-certified diagnostic radiologist, whose additional board-certification in the subspecialty of neuroradiology had lapsed by the time of the alleged negligence, and the plaintiff's expert was board-certified in both diagnostic radiology and neuroradiology, the latter in which he spent the vast majority of his time. Id. at __; slip op at 6-7. The panel noted that the "difficulty that arises . . . is that while no longer a board-certified, or its equivalent, neuroradiologist, Dr. Swofford was undoubtedly engaged in interpreting a neuroimage when he examined Horn's CT scan"-"Horn's CT scan could have been interpreted by a neuroradiologist or a diagnostic radiologist." Id. at __; slip op at 7. This Court held as follows:
In this case, Dr. Swofford was, in fact, practicing neuroradiology when he examined and interpreted neuroimages-the CT scan of Horn's skull-and he potentially could obtain, as he had done in the past, board certification in neuroradiology. And therefore Dr. Swofford was acting or practicing as a "specialist" or "subspecialist" in neuroradiology, at least for purposes of MCL600.2169(1) as interpreted by Woodard. Although Dr. Swofford was also practicing diagnostic radiology when he interpreted Horn's CT scan considering that diagnostic radiologists are credentialed to interpret neuroimages, neuroradiology was the one most relevant specialty. [Id. at __; slip op at 8.]
In Reeves v Carson City Hosp (On Remand), 274 Mich.App. 622, 623; 736 N.W.2d 284 (2007), this Court addressed the following set of circumstances:
Catherine R. and Anthony L. Reeves filed this medical malpractice action against several defendants, including Lynn Squanda, D.O., who is board-certified in family medicine, but was working in the emergency room at the time of the alleged malpractice. The Reeveses claimed that Dr. Squanda and others were negligent in failing to timely diagnose and treat Catherine Reeves's ectopic pregnancy. The Reeveses filed an affidavit of merit signed by Eric Davis, M.D., who is board-certified in emergency medicine, but not board-certified in family medicine.The trial court in Reeves ruled that Dr. Davis was not qualified to give expert testimony against Dr. Squanda; however, the Reeves panel vacated the trial court's order. Id. at 624. The Court reasoned and held:
In sum, because Dr. Squanda was practicing emergency medicine at the time of the alleged malpractice and potentially could obtain a board certification in emergency medicine, she was a "specialist" in emergency medicine under the holding in Woodard. Thus, plaintiffs would need a specialist in emergency medicine to satisfy MCL 600.2169; Dr. Davis, as a board-certified emergency medicine physician, would satisfy this requirement. However, the specialist must have also devoted the majority of his professional time during the preceding year to the active clinical practice of emergency medicine or the instruction of students. Because there is no information in the record regarding what comprised the majority of the expert's professional time, a remand for a determination on this issue is necessary. [Id. at 630.]
In Estate of Norczyk, the plaintiff alleged medical malpractice by the defendant physician for failure to properly assess the decedent's need for a heart catherization. The defendant doctor was board-certified in cardiology and the subspecialty of interventional cardiology, the former of which entails assessing, evaluating, and diagnosing cardiac problems and the latter of which involves the performance of invasive heart procedures. Estate of Norczyk, 326 Mich.App. at 115-116, 122. The plaintiff's expert witness was board-certified solely in cardiology, not interventional cardiology. Id. at 116. This Court held "that the one most relevant specialty here is cardiology, not interventional cardiology, because the allegations of medical malpractice do not pertain to negligence in the performance of invasive procedures but instead concern failures by [the defendant doctor] to act relative to [the decedent's] care and treatment, falling outside of and not encompassed by the performance of invasive procedures." Id. at 122-123.
F. DISCUSSION AND RESOLUTION
We begin our discussion with a couple of issues that are procedurally problematic from defendants' perspective. With respect to Dr. Savala's affidavit, which defendants challenge on appeal, the issue was not preserved for review by an objection in the trial court and thus need not be reviewed. Toaz v Dep't of Treasury, 280 Mich.App. 457, 463; 760 N.W.2d 325 (2008). Moreover, the record does not reflect that the trial court placed any reliance on Dr. Savala's affidavit. We note that affidavits that are contrary to or conflict with deposition testimony may not be considered. Casey v Auto Owners Ins Co, 273 Mich.App. 388, 396; 729 N.W.2d 277 (2006). Regardless of the preservation failure and whether the affidavit conflicted with Dr. Savala's deposition testimony, substantive consideration of the affidavit does not alter our conclusion that Dr. Savala is not qualified to testify in regard to the standard of care in relation to Dr. Toshniwal.
Next, to the extent that defendants object that the trial court did not consider the affidavits that they provided on reconsideration, a trial court "has discretion on a motion for reconsideration to decline to consider new legal theories or evidence that could have been presented when the motion was initially decided." Yoost v Caspari, 295 Mich.App. 209, 220; 813 N.W.2d 783 (2012). We need not explore this issue because, for the reasons discussed below, we rule in defendants' favor absent consideration of the affidavits supplied by defendants in their motion for reconsideration.
There can be no reasonable dispute that the only reason Dr. Toshniwal placed or performed the adductor canal block was to control plaintiff's pain and that plaintiff's lawsuit concerned whether legally-sound informed consent was obtained with respect to that particular medical procedure. Therefore, at first glance, it would appear that the one most relevant specialty was pain medicine, which was essentially the exclusive focus of Dr. Savala's practice. But this case requires closer and deeper inspection. Although a pain-medicine procedure was used, the particular nerve block Dr. Toshniwal employed is most commonly used by anesthesiologists in connection with surgeries. Indeed, pain-medicine specialist Dr. Savala acknowledged that he had not performed a femoral nerve block in at least 12 years because "operating room anesthesiologists are typically the ones that are providing those services." While such regional nerve blocks are typically placed preoperatively, anesthesiologists occasionally perform them postoperatively. When the procedure to control plaintiff's pain is viewed within the context of the underlying surgery, it becomes evident that the one most relevant specialty is anesthesiology and not pain medicine. Moreover, during the year immediately preceding the date of the alleged medical malpractice, Dr. Savala had not devoted the majority of his professional time to either the active clinical practice of anesthesiology or to the instruction of students in anesthesiology. MCL 600.2169(1); Woodard, 476 Mich. at 561-562.
Furthermore, plaintiff's medical malpractice action encompassed not only the events that took place after the surgery on his fractured patella and immediately before the nerve block was performed, but also events that occurred before the surgery when plaintiff allegedly stated his desire for no regional nerve blocks. The postoperative nerve block cannot be viewed in isolation or in a vacuum given the nature of plaintiff's lawsuit; rather, all of the circumstances surrounding the surgery must be considered, and it was the practice of anesthesiology and not pain medicine that was the relevant specialty when the circumstances are viewed more broadly, as is appropriate in this case.
In sum, the trial court erred by failing to strike plaintiff's expert witness, Dr. Savala, as he was not qualified to give standard-of-care testimony against Dr. Toshniwal. On remand, plaintiff may file a motion for permission to amend his witness list.
We reverse and remand for proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, defendants may tax costs under MCR 7.219.
Beckering, J., (dissenting).
In this medical malpractice action, defendants Gokul Toshniwal, M.D. and Anesthesia Associates of Ann Arbor PLLC ask this Court to overturn the trial court's order denying their motion to strike plaintiff Travis Strasser's expert witness. Defendant Dr. Toshniwal is board certified in anesthesiology as well as the subspecialty of pain medicine. Likewise, plaintiff's expert, Robert Savala, M.D., is board certified in anesthesiology as well as the subspecialty of pain medicine. The parties debate which of those two specialties Dr. Toshniwal was performing at the time of the alleged malpractice for purposes of assessing whether Dr. Savala meets the requirements of MCL 600.2169(1). Under the presenting facts, I would conclude that the trial court did not abuse its discretion in denying defendants' motion. Thus, I respectfully dissent.
This Court reviews for an abuse of discretion a trial court's decision regarding whether an expert witness is qualified. Tate v Detroit Receiving Hosp, 249 Mich.App. 212, 215; 642 N.W.2d 346 (2002). "The abuse of discretion standard recognizes that there may be no single correct outcome in certain situations; instead, there may be more than one reasonable and principled outcome." Gonzales v St. John Hosp & Med Ctr, 275 Mich.App. 290, 294; 739 N.W.2d 392 (2007). Moreover, "[w]hen the trial court selects one of these principled outcomes, it has not abused its discretion, and the reviewing court should defer to the trial court's judgment." Id. Also, a trial court's decision regarding a motion to strike is discretionary. Kalaj v Khan, 295 Mich.App. 420, 425; 820 N.W.2d 223 (2012). The relevant standard of care in a medical malpractice action is a question of law that this Court reviews de novo. Cox v Board of Hosp Managers for Flint, 467 Mich. 1, 16 n 16; 651 N.W.2d 356 (2002). To the extent that the resolution of this appeal requires interpretation of MCL 600.2169, questions of statutory interpretation are also reviewed de novo. Id. at 16.
To establish a cause of action for medical malpractice, a plaintiff must establish four elements: (1) the appropriate standard of care governing the defendant's conduct at the time of the purported negligence, (2) that the defendant breached that standard of care, (3) that the plaintiff was injured, and (4) that the plaintiff's injuries were the proximate result of the defendant's breach of the applicable standard of care. [Kalaj, 295 Mich.App. at 429.]
Plaintiff alleges that Dr. Toshniwal performed a medical procedure without his consent. "The doctrine of informed consent requires a physician to warn a patient of the risks and consequences of a medical procedure." Wlosinski v Cohn, 269 Mich.App. 303, 308; 713 N.W.2d 16 (2005).
"Expert testimony is required to establish the standard of care and a breach of that standard, as well as causation." Id. (citations omitted). The party offering the expert must show that the witness is knowledgeable regarding the applicable standard of care. Decker v Rochowiak, 287 Mich.App. 666, 685; 791 N.W.2d 507 (2010).
MCL 600.2169(1) establishes the requirements for a standard of care expert in a medical malpractice action, and provides in pertinent part:
(1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria:
(a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty.
(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following:
(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty.
(ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty.
In Woodard v Custer, 476 Mich. 545, 560; 719 N.W.2d 842 (2006), the Supreme Court concluded that MCL 600.2169(1)(a) requires a plaintiff's expert to specialize in the defendant's relevant specialty. "That is, if a defendant physician is a specialist, the plaintiff's expert witness must have specialized in the same specialty." Id. at 560-561. "If a defendant physician specializes in a subspecialty, the plaintiff's expert witness must have specialized in the same subspecialty as the defendant physician at the time of the occurrence that is the basis for the action." Id. at 562.
The Woodard court determined that a specialty, for purposes of MCL 600.2169(1)(a), is a particular branch of medicine or surgery in which one can potentially become board certified, and that includes subspecialties. Id. at 561-562.
Here, there is no dispute that Drs. Toshniwal and Savala have the same two specialties. At the time of the incident at issue, they were each board certified by the American Board of Anesthesiology in the specialty of anesthesiology as well as the subspecialty of pain medicine. Thus, MCL 600.2169(1)(a) is clearly met, regardless of which of these specialties Dr. Toshniwal was practicing at the time of the alleged malpractice.
Even though Dr. Savala is board certified in both specialties, a plaintiff's expert's specialties need not match all of the defendant physician's specialties, just the one that the defendant was practicing at the time of the alleged malpractice. Id. at 567-68.
With respect to MCL 600.2169(1)(b), the Woodard Court explained that
[I]n order to be qualified to testify under [MCL 600.2169(1)(b)], the plaintiff's expert witness must have devoted a majority of his professional time during the year immediately preceding the date on which the alleged malpractice occurred to practicing or teaching the specialty that the defendant physician was practicing at the time of the alleged malpractice, i.e., the one most relevant specialty. [Id. at 566 (footnote omitted.)]
Dr. Savala testified at his deposition that in the year preceding the date of the alleged malpractice, he spent nearly all of his time in pain medicine. Dr. Toshniwal testified that he spent roughly 30 to 40 percent of his time in pain medicine and 60 to 70 percent in anesthesiology. The parties dispute which specialty Dr. Toshniwal was practicing at the time of the alleged malpractice. According to defendants, if it was anesthesiology, Dr. Savala would not be qualified under MCL 600.2169(1)(b), but if it was pain medicine, he would be.
Dr. Savala testified that he spends the majority of his time managing acute and chronic pain, both in an office and in a hospital outpatient surgery center, and he regularly performs nerve blocks 15 to 20 times per week. He agreed that nerve blocks are a pain control procedure.
In this case, plaintiff had just undergone knee surgery, which was performed under general anesthesia. After the operation, the opioids given to plaintiff were not effectively managing his pain. Dr. Toshniwal testified that he discussed with plaintiff, his significant other, and the surgeon various alternatives to help plaintiff manage the pain, and then performed an adductor canal block procedure, which is an analgesic sensory nerve block injected into the adductor canal of the thigh.Plaintiff does not claim that Dr. Toshniwal performed the procedure improperly. Rather, he claims that Dr. Toshniwal should not have performed the procedure at all. He alleges in his complaint that he "clearly and specifically informed all Defendants that he did not want any spinal or regional blocks for post-operative pain control." He feared the potential side effects experienced by one of his friends. After Dr. Toshniwal performed the procedure, plaintiff experienced severe left femoral neuropathy, resulting in this lawsuit alleging a lack of informed consent.
Whether Dr. Toshniwal properly obtained informed consent for the procedure is a disputed question of fact that is not before this Court.
Plaintiff's medical records indicate that plaintiff "refused spinal or any regional block for post-op pain control."
Plaintiff alleged in his complaint that he "has no active motor activities in the left leg, atrophy, pain, decreased sensation distribution, and numerous other problems." Whether plaintiff suffered injury due to the procedure is a disputed question of fact that is not before this Court.
Defendants claim that because Dr. Toshniwal performed the nerve block during the perioperative period in order to treat acute pain, it falls under the domain of anesthesiology. Pain medicine, according to defendants, focuses on acute chronic pain, not acute perioperative pain. In contrast, plaintiff argues that the treatment at issue involved a pain management procedure; it did not entail the use of anesthesia, so it falls under the umbrella of pain medicine, not anesthesiology. Moreover, plaintiff points out that the case involves a dispute over informed consent, not the performance of the procedure itself, so under either specialty, the standard of care is the same.
At the motion hearing, the trial court ruled, in relevant part:
I think it, it was a pain management procedure, the, the nerve block. [B]ased on the evidence, the documents that both sides presented, and then Woodard v Custer
[476 Mich. 545; 719 N.W.2d 842 (2006)] says that it's the relevant specialty that was being performed. And it is pain management.
But this seems, to me, and maybe I just got lost in my head, it seems to be much ado about nothing, because, Plaintiff, I don't think, is alleging that the pain, pain management was done wrong.
Or that the nerve block was done incorrectly.
But it was done without consent.
In my view, the trial court did not abuse its discretion in denying defendants' motion. See Gonzales, 275 Mich.App. at 294. First, the trial court's conclusion that Dr. Toshniwal was practicing pain medicine at the time he performed the nerve block is reasonable. Dr. Toshniwal was treating plaintiff's pain. Second, the materials before this Court illustrate that the specialties of anesthesiology and pain medicine, when it comes to pain treatment, appear to greatly overlap. Essentially, defendants are asking this Court to split hairs where Dr. Savala's credentials exactly match those of Dr. Toshniwal, and Dr. Savala's practice includes the regular performance of nerve blocks. Given that Dr. Toshniwal testified that he was considering which of various pain medications to administer to alleviate plaintiff's pain, that supports a finding that he was practicing pain medicine. The parties debate whether a nerve block given after surgery can credibly be argued to fall under the sole umbrella of anesthesiology, as a nerve block does not include general anesthesia, and its focus is on pain management, not sedation. Plaintiff points out that the medical records and billing records distinguish between general anesthesia and pain management, referring to post-operative pain control as a separate item. Defendants state that is irrelevant, where the procedures are not the same, and thus, are not billed the same, but the fact that they are different does not make one pain medicine and the other not. Weighing against the argument that the most relevant specialty is anesthesiology is the fact that defendants themselves formally relied on a pain medicine doctor's affidavit of meritorious defense at the outset of this case.
While Dr. Savala testified that he routinely performs a different type of nerve block and he had not performed the type of nerve block at issue in several years, that this fact goes to the weight and credibility of his testimony, not its admissibility. See Ykimoff v Foote Mem Hosp, 285 Mich.App. 80, 101; 776 N.W.2d 114 (2009) ("Gaps or weaknesses in the witness' expertise are a fit subject for cross-examination, and go to the weight of his testimony, not its admissibility") (quotation marks and citation omitted). Again, this case is about informed consent, not the way he performed the particular nerve block.
Codefendants Oakwood Heritage Hospital, Beaumont Hospital-Taylor, Oakwood Healthcare, Inc., and Beaumont Health System submitted an affidavit of meritorious defense from Nabil Sibai, M.D., a physician who is board certified in both anesthesiology and the subspecialty of pain medicine and who, like Dr. Savala, devoted the majority of his professional time in the year preceding the subject incident in the active clinical practice of the medical subspecialty of pain medicine. His affidavit indicated that "[t]he applicable standard of care is what a board-certified anesthesiologist with a subspecialty in pain medicine of ordinary learning, judgment, or skill would or would not do under the same or similar circumstances then and there existing." In addition to filing his own affidavit, Dr. Toshniwal filed a pleading formally relying on Dr. Sibai's affidavit of meritorious defense.
Based on the record evidence, the question of "which hat" Dr. Toshniwal was wearing when tasked with obtaining informed consent for the performance of a nerve block to manage plaintiff's pain after surgery could reasonably be answered either way. Both anesthesiologists and pain medicine physicians perform nerve blocks to treat pain. And because there is no dispute that the standard of care with respect to obtaining informed consent is the same under either specialty, the splitting of hairs in this case makes no sense, other than for purposes of legal strategy. Because Dr. Toshniwal was undertaking to treat plaintiff's pain, and because Dr. Savala possess the exact same board certifications as Dr. Toshniwal, I do not believe the trial court abused its discretion by denying defendants' motion. See Tate, 249 Mich.App. at 215; Gonzales, 275 Mich.App. at 294. As such, I would affirm.