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Morgan v. Ashwin H. Shah, M.D., & Ashwin H. Shah, M.D., PC

STATE OF MICHIGAN COURT OF APPEALS
Feb 12, 2019
No. 341846 (Mich. Ct. App. Feb. 12, 2019)

Opinion

No. 341846

02-12-2019

JASON MICHAEL MORGAN, by Next Friend JANELL RAY, Plaintiff-Appellant, v. ASHWIN H. SHAH, M.D., and ASHWIN H. SHAH, M.D., PC, Defendants-Appellees.


If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Macomb Circuit Court
LC No. 16-138595-NH Before: GLEICHER, P.J., and STEPHENS and O'BRIEN, JJ. PER CURIAM.

A Michigan statute, MCL 330.1629(1), exempts a plenary guardian from civil damages "by reason of authorizing routine or emergency medical treatment[.]" But immunity does not extend to a guardian's consent for "extraordinary procedures," including vasectomy, unless a court order has been secured. MCL 300.1629(3). Defendant Ashwin Shah, M.D., performed a vasectomy on Jason Michael Morgan, a developmentally disabled adult. Morgan's plenary guardian failed to obtain a court order authorizing the procedure. Morgan's mother, plaintiff Janell Ray, contends that Dr. Shah lacked proper informed consent for the surgery because he failed to verify that a court had authorized the surgery or to seek legal advice.

Plaintiff's expert witness, Dr. Richard Sarle, signed an affidavit of merit endorsing Ray's position. During his deposition, Dr. Sarle admitted that he was unaware of MCL 330.1629 when he was first consulted in this case. Before being briefed about the statute by counsel, Dr. Sarle believed that Dr. Shah had not obtained adequate consent for the procedure. After taking the statute into account, he concluded that the standard of care prohibited Dr. Shah from sterilizing Jason based solely on his guardian's consent.

The circuit court precluded Sarle's testimony, declaring that because he did not know of the statute when Morgan's vasectomy was performed, he could not testify that the standard of care required Dr. Shah to ascertain that court approval had been obtained. This ruling conflicts with longstanding principles governing expert testimony. Experts in medical malpractice cases are expected to justify their opinions with authoritative materials supporting them. Awareness of the law relevant to the events—even if acquired only after reviewing the records—does not disqualify an expert. Whether Dr. Sarle was aware of the statute at the time the alleged malpractice was committed goes to the weight of his testimony, not its admissibility. We reverse and remand for further proceedings.

I

Jason Morgan, now age 31, is developmentally delayed due to Down syndrome. In 2005, the Monroe Probate Court appointed Jason's father, James Morgan, as his plenary guardian. Despite his intellectual disability, Jason works at a Kroger store bagging groceries and lives in a supervised apartment setting. He reads on a first or second grade level.

In 2014, James Morgan brought Jason to Dr. Shah's office for a consultation regarding an elective vasectomy. James did not inform Jason's mother, plaintiff Janell Ray, of his intent to have Jason sterilized. Nor did James seek probate court approval for Jason's sterilization. In bypassing the probate court, James subjected himself to civil liability under MCL 330.1629, which provides as follows:

(1) A guardian, temporary guardian, plenary, partial, or standby guardian shall not be liable for civil damages by reason of authorizing routine or emergency medical treatment or surgery or extraordinary procedures when previously ordered by the court for his or her ward if the guardian acted after medical consultation with the ward's physician, acted in good faith, was not negligent, and acted within the limits established for the guardian by the court.

(2) A guardian, temporary guardian, plenary, partial, or standby guardian who has been authorized by the court to give medical consent, shall not be liable by reason of his or her authorization for injury to the ward resulting from the negligence or other acts of a third person.

(3) Routine medical services do not include extraordinary procedures. Extraordinary procedures includes, but is not limited to, sterilization, including vasectomy . . . .
Under this statute, a probate court has the power to enter an order authorizing an extraordinary procedure, such as a vasectomy, if the ward's guardian makes an application for such a procedure, and the probate court "determines the procedure is in the ward's best interests." In re Wirsing, 456 Mich 467, 476; 573 NW2d 51 (1998).

Wirsing is a case about jurisdiction. The Supreme Court affirmed the decision of a probate court judge authorizing the sterilization of an 18-year-old developmentally disabled woman. The probate court made 19 highly specific factual findings in support of its decision, all of which are recited in the Supreme Court's opinion. An intervening party, Michigan Protection and Advocacy Service, challenged only the power of the probate court to authorize the procedure, and not the decision's substance.

Dr. Shah testified at his deposition that he recognized that Jason had Down syndrome and considered him unable to consent to or understand the contemplated surgery. Based on James Morgan's representation that he had been appointed Jason's guardian, Dr. Shah concluded that he had appropriate consent for the procedure. Dr. Shah admitted that during his 35 years of practice, Jason was "most probably" the only patient with Down syndrome on whom he had performed a vasectomy.

Janell Ray learned that her son had undergone a vasectomy on the day of the surgery, after the fact. She was upset and angry. In Ray's view, Jason should have been consulted about the surgery and his wishes explored. Further, Ray asserted, most males with Down syndrome are infertile anyway, rendering the surgery unnecessary. When she confronted James Morgan about his decision to subject Jason to the operation, James explained that "he wanted no more abominations in this world."

"Sterilization touches upon the individual's right of privacy and the fundamental right to procreate. It is an unalterable procedure with serious effects on the lives of the mentally retarded person and those upon whom he or she may depend. Therefore, it should be undertaken only after careful consideration of all relevant factors." Matter of Guardianship of Hayes, 93 Wn2d 228, 234; 608 P2d 635 (1980) (citations omitted).
In 1999, the American Academy of Pediatrics' Committee on Bioethics issued a position paper entitled "Sterilization of Minors With Developmental Disabilities," which summarized:

A decision to pursue sterilization of someone with developmental disabilities requires a careful assessment of the individual's capacity to make decisions, the consequences of reproduction for the person and any child that might be born, the alternative means available to address the consequences of sexual maturation, and the applicable local, state, and federal laws. [Available at <http://pediatrics.aappublications.org/content/104/2/337.full> (accessed January 14, 2019.]
See also Jaegers, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U Louisville J Fam L 947, 979 (1992) (noting that sterilization constitutes "the permanent physical deprivation of a fundamental constitutional right," and that "courts have given substantial judicial respect to the rights of developmentally disabled persons, allowing sterilization only when necessary, or not at all").

Ray brought this medical malpractice action against Dr. Shah and his professional corporation in February 2016, almost two years after the surgery was performed. Her complaint alleges that Dr. Shah breached the standard of care by performing the vasectomy without verifying that a court had authorized the procedure. Along with her complaint, Ray filed an affidavit of merit signed by Dr. Sarle in February 2016. The affidavit included the following pertinent averments:

13. It is my opinion that the requirements of the standard of care included, but were not limited to, the following:

a. Refrain from performing an elective vasectomy on a developmentally disabled adult under the care of a Guardian, without the procedure having been authorized by the Court.


* * *

14. It is my opinion that the standard of care was violated for the following reasons:

a. Dr. Shah performed an elective vasectomy on Jason Morgan without the procedure having been authorized by a Court order. . . .

Dr. Shah brought a motion for summary disposition, contending that MCL 330.1629 applies to guardians, and not to physicians. Ray rejoined that her claim was not premised on Dr. Shah's violation of the statute, but rather on his violation of the standard of care by failing to verify that James Morgan, as Jason's guardian, had obtained court authorization for the vasectomy. The circuit court denied summary disposition, finding that Dr. Sarle's affidavit created a question of fact regarding the applicable standard of care.

Dr. Shah's counsel deposed Dr. Sarle, and then filed a motion seeking "determination of consent as a matter of law and associated motion in limine." This motion asserted that the applicable standard of care did not require a physician to verify that a guardian had obtained a court order before performing a vasectomy on a developmentally disabled adult, and that the effect of MCL 330.1629 was strictly a legal question. Ray argued that both Dr. Sarle's affidavit of merit and his deposition testimony described a standard of care related to, but independent of, the statute. That standard, Ray insisted, required that Dr. Shah verify that a court had determined the procedure was necessary.

The circuit court granted defendants' motion based on its perception that Dr. Sarle did not know what the standard of care required in 2014, when the surgery was performed, as he was unfamiliar with MCL 330.1629 at that time. The court reasoned as follows:

[The] expert's been deposed and he has said, I don't know what the standard of care was. Well, I didn't know that this existed back in 2014, and I don't know how he made an affidavit, at that time, to say that that violated the standard of care, where I have very serious questions now about the qualifications of that expert.

And then he did all of the research after the fact and now, he may opine, which I'll have to be honest with you, I found reading his deposition, I wouldn't call it troubling, but it was hard to follow, I don't mind saying. . . .


* * *
I have poured over this and poured over it, and gone through as much case law as I possibly could, went right back to the statute, and the statute specifically relates to a guardian, a temporary guardian, a preliminary [sic] guardian, partial or stand-by guardian. And I - - we talked about this, I agree, it's about routine medical services do not require court authorization, but extraordinary procedures do, including vasectomy.

I dwelled on the point, ignorance of the law is no excuse, but all of the experts here opine they didn't know about this [statute] at the time [of Jason's vasectomy]. And that is what is so very troubling to the Court that I don't think these experts can opine that even to a jury because they didn't know, and that was not the standard of care, at least at the time, and these . . . are doctors that teach people and have residents and things like that, they knew what [the standard of care] was at that time.

I'm gonna [sic] be honest with you, I have to agree with defendant's [sic] position in this case as to this issue. It does not go to the jury that Dr. Shah breached the standard of care by not seeking court approval. This statute, notwithstanding, it was not the standard of care that a doctor ha[d] a duty to go to court to make sure that there's a court order that allow[ed] this procedure.

II

The standard of care expected of a physician is "what the ordinary [urologist] of ordinary learning, judgment or skill would do or would not do under the same or similar circumstances." Albro v Drayer, 303 Mich App 758, 764; 846 NW2d 70 (2014) (quotation marks and citation omitted). Expert testimony is required to establish the standard of care in most medical malpractice cases. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). Ultimately, the jury determines the applicable standard of care, not the trial court. Dawe v Bar-Levav & Assocs, PC (On Remand), 289 Mich App 380, 392-393; 808 NW2d 240 (2010).

The legal question presented by defendants' motion for a "determination of consent as a matter of law and associated motion in limine" centered on the admissibility of Dr. Sarle's testimony regarding the standard of care for obtaining informed consent under the circumstances presented. Defendants did not challenge Dr. Sarle's qualification to give opinion testimony as an expert in this case; Dr. Sarle is a board-certified urologist and indisputably qualified to testify under MRE 702. Rather, defendants contended that Dr. Sarle improperly predicated his standard-of-care testimony on a legal conclusion—that MCL 330.1629 mandates that a physician performing a vasectomy on a developmentally disabled adult verify that a guardian has obtained a court's permission for the surgery. Alternatively, defendants sought an order in limine prohibiting him from doing so.

Defendants have mentioned MRE 702 only once (in their trial court motion for determination of consent as a matter of law), as follows: "In particular with Dr. Sarle, MRE 702 permits 'a witness qualified as an expert by knowledge, skill, experience, training, or education' to offer opinion testimony. Dr. Sarle, however, is a urologist; not a lawyer and is not qualified to offer a legal opinion."

The circuit court viewed defendants' motion somewhat differently, excluding Dr. Sarle's testimony on the ground that Dr. Sarle was unaware of the applicable standard of care in 2014. This ruling was erroneous as a matter of law, as the relevant rule of evidence permits an expert to enlarge his or her sphere of knowledge about the standard of care before testifying.

Defendants' motion in limine has merit nonetheless. Dr. Sarle may not testify as an expert in the law, and may not opine that MCL 330.1629, standing alone, required Dr. Shah to verify the existence of a court order authorizing Jason's sterilization.

We turn to a detailed and careful review of what Dr. Sarle actually said in his deposition. Although Dr. Sarle sometimes rambled and occasionally failed to answer the question asked, he understood that the statute applied to guardians, not physicians. He testified to a standard of care that harmonized with the statute without relying solely on its language. Therefore, within the limits we describe, Dr. Sarle may render opinions regarding the common-law standard of care that he believes applies in this case.

III

Dr. Sarle testified that he regularly performs vasectomies, usually in his office. A small percentage of the vasectomies he performs are done in a surgery center. Dr. Sarle admitted that he has never performed the procedure on a developmentally disabled man.

Counsel for Dr. Shah inquired whether any of the facilities at which Dr. Sarle practices have a "written policy" requiring production of a court order as a prerequisite to performing a vasectomy on a developmentally disabled man. Dr. Sarle responded that his office facility "would require formal documentation to authorize the performance of an elective procedure on someone who is not competent to make their own medical decisions," but he did not know whether there was a written policy in place or whether other institutions had a written policy on the subject. Dr. Sarle volunteered that he had performed "procedures on people with cognitive defects or developmental delay" and "followed a stringent process" to verify informed consent before the surgery. In one case, that process included the production of a document reflecting that someone was authorized to consent, combined with a "family meeting" that included the patient. Dr. Sarle also spoke to the patient privately, outside the presence of the patient's family, to try to ascertain whether the patient could consent. The patient did not return.

Counsel next discussed with Dr. Sarle whether he "teach[es] residents that they must obtain a court order before performing a vasectomy on a developmentally disabled" man. He admitted that the specific subject likely never arose. However, he emphasized that he teaches residents that a guardian's consent for "certain interventions . . . is not a blanket authorization to do whatever you want." He elaborated that "I think it's very specific. You know, so [it] depends on the intervention." By way of example, he described doing a prostatectomy during which a skin lesion was seen. The residents asked to remove it, but Dr. Sarle instructed them not to because the lesion did not present a life threat, and additional permission was required.

Dr. Sarle testified that after being consulted in this case he conducted research regarding informed consent for sterilization procedures, but most of what he found related to female sterilization. His research included a review of the informed consent regulations of the Institutional Review Boards (IRBs) that regulate his own medical research. Dr. Sarle explained that in the course of his research, he learned that a court order or "a discussion with attorneys" was required before a physician could sterilize a patient under a guardianship:

When informed consent cannot be provided between the patient and the physician, that a sterilization procedure, I was under the impression now, I did not know this prior to this, requires a court order or a discussion with attorneys and - - because I - - I was unaware of that. But I am now. At least that's my - - if I ever encounter a scenario like that again, I have a very different - - not a different opinion, but a more informed opinion about what I think about that.
Dr. Sarle clarified that counsel for Ray had showed him MCL 330.1629, which he understood as involving "guardian liability." He was unaware of the statute before it was brought to his attention. He then discussed the case with counsel, and approved the affidavit of merit that counsel drafted.

Defense counsel then turned to the standard of care. In the following deposition excerpt Dr. Sarle referred to a developmentally disabled patient he had counseled regarding a vasectomy:

Q. Do you have an opinion as to whether Dr. Shah breached the standard of care?

A. I think that - - I think that the - - what I reviewed reveals to me a fundamental misunderstanding or a lack of understanding of the standard of care as it relates to informed consent in someone who cannot make their own decisions.

Q. Okay. And do you think he breached the standard?

A. I do.

Q. And how?

A. I think that in this scenario the father it [sic] not authorized to give permission to have his son sterilized. He is not the sole determiner of that, you know, procedure. In my understanding about guardianship, my understanding in terms of guardianship in this situation or in a medical situation would be let's say the child - - the patient was injured or has cancer or - - you know, you can make decisions like that. But this is an elective procedure. This is not urgent. I take Medicaid, I take a lot of Medicaid in Dearborn, I have a lot of Medicaid patients. In Dearborn, if I want to do a vasectomy on a Medicaid patient, I have to fill out a form, I have to wait 30 days. I think it has to do with there's a history in Michigan of, you know, being accused of sterilizing poor people. You know, on that form, if you're a female, there's a check box that says you have to do it because it's, you know, extraordinary situation. You have to do that because
when someone is sterilized as a woman, it's a much more invasive procedure, a tubal ligation, or it's done during a C-section. And you have to have a reason in this state. And my impression of that form is that you can't do - - Medicaid won't authorize you to do a vasectomy on someone who has a developmental or cognitive impairment regardless of guardianship. That's my understanding of the form.

Q. That's your interpretation of the form?

A. Yes, sir.

Q. Are there any other ways in which you believe Dr. Shah breached the standard of care in this case?

A. In my - - of my understanding of Down syndrome, I would have - - I would have - - I read the notes. We use UroChart, too, which is the document. And UroChart is reliant on clicks. You have to click on boxes. And it auto-populates. And I - - like today, none of my - - I did office today with UroChart. And none of my notes are done. Not one. And the reason is because the clicking is not sufficient in my mind to document complex situations. And if there's a complex situation in the world of sterilization, it's this one. The fact that he is - - has a guardian, the fact that he is [sic] Down syndrome, and has the functional capacity of an eight to ten year old are very important facts that, you know, I could - - if I could remember the patient's name, if you read my note on the young man I saw for a vasectomy with a handicapped situation, I can remember putting a huge paragraph about my impression of his competence, because I thought that was crucial for me to proceed if I wanted to proceed. And the scenario I looked at the notes and I found that - - you know, the first - - I would have documented much more thoroughly in the context, and I would do that even if I was seeing that young man for, let's say he had a bladder cancer, and I was going to operate on him. And he has a guardian, okay. That is not a simple situation either. I think that that adds another layer of responsibility for us to document carefully about the nature of the informed consent.

Dr. Shah testified that he uses UroChart. --------

Dr. Sarle again addressed informed consent later in the deposition as follows:

Q. In what ways in particular are you critical of the way the consent was reached in this case, or not reached?

A. I don't think the father has the authority to consent for a sterilization procedure in this situation.


* * *
Q. Based on what?

A. My, you know, knowledge of - - I think that there are limits to what a guardian can consent to . . . .

Q. Are you basing that opinion on any literature, teachings, statutes? What are you basing it on?

A. I'm going to base it on my review of the - - when I did an Internet search and when I went through that IRB, you know, I kind of, you know, formed my opinion about that. But I already had a pretty strong opinion about that in terms of, you know, what we're able to do and not do in terms of, you know, getting permission to do things, and who's allowed to give that permission? I think it's not generic. It depends on what we're asking, permission to do what? You know, let's say he had blood in his urine. One of the procedures we do is we look in the bladder. It's a diagnostic procedure. Okay. I think the guardian can consent for that because what are we doing? We're looking for cancer. So I think what we're doing matters. You know, no one - - whether or not - - I don't think that having a vasectomy is a life-threatening situation. It's not urgent, it's never an emergency. . . .

Dr. Sarle admitted that as Jason's guardian, James Morgan could make "some" medical decisions on Jason's behalf. When asked "[w]here is the line then that you're drawing between the procedures he can consent to and those he cannot," Dr. Sarle expressed that a physician would not be permitted to operate if a guardian wanted a ward to undergo plastic surgery to fix "funny ears," or to have a deformed hand removed. "[I]f I tried to do this on a patient . . . I think I'd get pushback," Dr. Sarle stated. He then returned to the subject of Medicaid, which "kind of helps me form the basis of my opinion." He explained:

I know that if you want to sterilize a female, and I've heard this from my gynecologic colleagues prior to this case, that if someone has, you know, a developmental - - we had a patient at Henry Ford when I was a resident who had 22 pregnancies. Every child had been taken away from her. And . . . there was some discussion, oh, why don't we just - - when - - during her last C-section they were like, we should just - - one of the residents said, hey, we should just take her uterus out, right? And there was a discussion about that among the residents. And then a staff said if you want to sterilize someone, a woman like that, you have to have a court order. And so when this kind of thing came up in my mind, I thought, really, what makes it different? Just because you don't want someone to have a child doesn't mean you get the right to do it. And I think there has to be a process. And that's really what informed consent was invented for, to make sure that there's a process so the interests of the patient are taken into consideration. And in my mind, during this, you know, scenario, I think the process was . . . not properly followed. [Emphasis added.]

Counsel then inquired of Dr. Sarle "[w]hat . . . the standard of care require[s] of a physician when he's making the determination" of whether to perform a vasectomy on a Down syndrome patient with a guardianship. Dr. Sarle responded, "[J]ust because there's a guardian doesn't mean that we don't have an obligation to explain everything to the patient. . . . And from the documents I reviewed, it doesn't appear like that happened." Dr. Sarle added, "I would want to see the actual documents from the courts that say he is the guardian, because in my opinion, in this day and age, you can't assume things." The questioning continued as follows:

Q. So explain to the patient and the guardian the procedure. See a document showing that the person is in fact the guardian. What else? What else does the standard of care require?

A. To perform a vasectomy on a Down syndrome patient? I mean, in my - - I mean now, with my knowledge I have now, I think that a court order would be required saying that - - after a thorough discussion, I would want a letter from the court saying that this could be done.

Q. In 2014, you would not have known that, would you?

A. Correct.

Q. Do you know a urologist that has performed a vasectomy after receiving a court order?

A. I don't. I don't think the court would have done it. I think that would be a really good question. I know what a lot - - I think the public would do it, but I don't know. I think that's a question for the lawyers.

Counsel for Ray conducted a limited cross-examination of Dr. Sarle, eliciting further testimony regarding the standard of care:

Q. Earlier, counsel elicited from you that you did not know about the statute at the time you rendered your opinions back in 2014 about a breach of the standard of care with regard to obtaining informed consent and, therefore, a court order would be needed. Do you remember that discussion?

A. Yes.

Q. Although you still stand by the fact that it's a breach of the standard of care to perform a vasectomy on a mentally challenged individual such as or was in this case with regard to Jason Morgan, correct?

A. Correct.

Q. What's the basis for that opinion?

A. I think the standard of care was violated because there's lacking documentation about the process of informed consent that was involved in this specific situation. Court order or not, looking at the records and the documents
that I was given, it seems like there was almost completely no informed consent about the performance of the procedure, at least that's what my review shows.

Q. Tell me about the basis for your opinion that there was no informed consent, where you gain that from? Is it in the literature? Is it through your teachings?

A. I think it's from training. I mean, you learn that in medical school and residency, about the process of informed consent and the standard of care when you inform a patient about the risks and benefits of the procedure.

IV

The circuit court excluded Dr. Sarle's opinion that Dr. Shah should have verified court approval of the vasectomy because Dr. Sarle was unaware of MCL 330.1629 before 2014, when the surgery was performed. The court cited no law in support of this ruling, and none exists. No rule of evidence and no common-law precept limits opinion testimony regarding the standard of care to those opinions formed before the alleged malpractice was committed. Indeed, the opposite is true. Before testifying as to the applicable standard of care, an expert is expected to test the validity of his or her first-impression opinions by engaging in some research. This often involves consultation with other physicians and consideration of the medical literature. We can think of no reason that an expert should be precluded from contemplating any applicable laws.

In Elher, 499 Mich at 22-23, the Supreme Court highlighted that before admitting opinion testimony under MRE 702, a trial judge must ensure that the testimony is reliable. "A lack of supporting literature, while not dispositive, is an important factor in determining the admissibility of expert witness testimony." Id. at 23. The Court continued, "Under MRE 702, it is generally not sufficient to simply point to an expert's experience and background to argue that the expert's opinion is reliable and, therefore, admissible." Id. (quotation marks and citation omitted). An expert's "background and experience" may not be sufficient to render an opinion regarding the standard of care, the Supreme Court instructed, particularly if the expert is unable to point to any support for the opinion outside the expert's own mind. Id. at 27-28.

Accordingly, we find no fault with Dr. Sarle's consideration of MCL 330.1629 during the time that he formulated his expert opinion in this case. While the statute does not directly concern informed consent or a physician's obligations in that regard, we can think of no reason that a well-informed expert witness should remain ignorant of a directly relevant statute. Furthermore, we are perplexed by the circuit court's focus on the fact that Dr. Sarle was unaware of the statute before being consulted in this case. MRE 702 does not limit an expert's testimony to the information known to the expert at the time of the underlying events. To the contrary, the rule requires that an opinion be based on "sufficient facts or data," which would include information learned by the expert in the process of verifying the reliability of his or her opinion testimony.

In addition to the absence of caselaw supporting the circuit court's view, analogous caselaw reinforces our conclusion that Dr. Sarle's opinion testimony is admissible despite that he lacked awareness of MCL 330.1629 in 2014. In medical malpractice cases involving a local standard of care, a non-local expert may testify to the standard if the expert has gained familiarity with the locality by reading about it, performing research regarding its attributes, or speaking with local physicians. Turbin v Graesser (On Remand), 214 Mich App 215, 219; 542 NW2d 607 (1995). Obviously, this information-gathering process occurs long after an alleged occurrence of malpractice. Turbin and its progeny support that an expert is not disqualified because he or she gleans the details of a standard of practice based on post-incident research.

That said, Dr. Sarle's lack of awareness of MCL 330.1629 in 2014 is certainly relevant and within the scope of permissible cross-examination. "Gaps or weaknesses in the witness'[s] expertise are a fit subject for cross-examination, and go to the weight of his testimony, not its admissibility. The extent of a witness's expertise is usually for the jury to decide." Surman v Surman, 277 Mich App 287, 309-310; 745 NW2d 802 (2007) (quotation marks and citations omitted).

V

We turn to defendants' alternative arguments. In their motion "for determination of consent as a matter of law with associated motion in limine," defendants advanced two claims. First, defendants urged, "Dr. Shah was entitled, as a matter of law, to rely upon the consent of plenary guardian James Morgan to perform the vasectomy for Jason Morgan." Alternatively, defendants contend that Dr. Sarle should be precluded from testifying that MCL 330.1629 governs Dr. Shah's conduct. We find merit in the second assertion.

Defendants correctly point out that MCL 330.1629 "only governs the scope of immunity granted to guardians with respect to medical decisions they make on behalf of their wards." For that reason, it does not dictate the standard of care applicable to Dr. Shah. Although Dr. Sarle's deposition testimony is somewhat difficult to parse, we conclude that viewed in the light most favorable to Ray, Dr. Sarle set forth a common-law standard of care rather than a standard resting solely on Dr. Sarle's interpretation of the statute.

Dr. Sarle testified that he taught his residents that "if a patient is deemed not able to make their own decisions, . . . and a guardian can consent for certain interventions . . . [t]hat is not a blanket authorization to do whatever you want." When he thought about the facts of the case, Dr. Sarle explained, he recalled that performing a female sterilization procedure on a patient with developmental delays requires a court order. He continued:

And so when this kind of thing came up in my mind, I thought, really, what makes it different? Just because you don't want someone to have a child doesn't mean you get the right to do it. And I think there has to be a process. And that's really what informed consent was invented for, to make sure that there's a process so the interests of the patient are taken into consideration. And in my mind, during this, you know, scenario, I think the process was . . . not properly followed.
Dr. Sarle additionally analogized to Medicaid-funded sterilization procedures, offering that Medicaid "won't authorize you to do a vasectomy on someone who has a developmental or cognitive impairment regardless of guardianship."

This testimony is consistent with Dr. Sarle's view, expressed in his affidavit of merit, that the standard of care required Dr. Shah to "[r]efrain from performing an elective vasectomy on a developmentally disabled adult under the care of a Guardian, without the procedure having been authorized by the court." Dr. Sarle's affidavit and his answers to the deposition questions demonstrate that his understanding of the standard of care is informed by MCL 330.1629, but independent from the conduct covered by the statute. Within the limits described in this opinion, Dr. Sarle must be permitted to testify to a common-law standard of care.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher

/s/ Cynthia Diane Stephens

/s/ Colleen A. O'Brien


Summaries of

Morgan v. Ashwin H. Shah, M.D., & Ashwin H. Shah, M.D., PC

STATE OF MICHIGAN COURT OF APPEALS
Feb 12, 2019
No. 341846 (Mich. Ct. App. Feb. 12, 2019)
Case details for

Morgan v. Ashwin H. Shah, M.D., & Ashwin H. Shah, M.D., PC

Case Details

Full title:JASON MICHAEL MORGAN, by Next Friend JANELL RAY, Plaintiff-Appellant, v…

Court:STATE OF MICHIGAN COURT OF APPEALS

Date published: Feb 12, 2019

Citations

No. 341846 (Mich. Ct. App. Feb. 12, 2019)