Benigni v. Alsawah

Decision Date08 September 2022
Docket Number357033
PartiesMICHAEL BENIGNI, Personal Representative the ESTATE OF PATRICIA BENIGNI, Plaintiff-Appellant, v. SAMIR ALSAWAH, M.D., and HURON MEDICAL CENTER, PC, Defendants-Appellees.
CourtCourt of Appeal of Michigan — District of US

St Clair Circuit Court LC No. 19-001198-NH

Before: Markey, P.J., and Shapiro and Patel, JJ.

Patel J.

The dispositive question in this medical malpractice case is whether plaintiff's claim is a traditional medical malpractice claim or one that involves a lost opportunity to achieve a better result. Plaintiff, the Estate of Patricia Benigni, alleges that defendants Samir Alsawah, M.D., and Huron Medical Center (HMC) failed to timely diagnose Patricia's recurrence of colorectal cancer, causing Patricia to suffer adverse sequela, including death. The Estate alleged that as a direct and proximate result of defendants' negligence, Patricia's undiagnosed cancer metastasized. Catching the recurrence earlier would have given Patricia a better prognosis, including survival and a cure.

In the summary disposition proceedings, both parties and the trial court characterized this case as a "lost opportunity case," implicating the second sentence of MCL 600.2912(a)(2). This was error. Because Patricia actually suffered an adverse result (in this case death), this is a traditional medical malpractice case, not one for lost opportunity. We therefore reverse the trial court order granting summary disposition and remand this case to the trial court to determine whether the Estate can establish proximate causation under traditional malpractice principles.

I. BACKGROUND
A. ORIGINAL DIAGNOSIS OF CANCER AND MEDICAL HISTORY

In 2012, Patricia was diagnosed with stage III colorectal cancer. She was referred to HMC and Dr. Alsawah, a board-certified medical oncologist, in November 2012. Patricia received neoadjuvant chemotherapy and radiation treatment to prepare for surgery. Subsequently, a resection to remove the tumor was performed in February 2013. From March to September 2013, Patricia received nine rounds of adjuvant chemotherapy to lower the risk of recurrence and to address lymph node concerns. Throughout 2013, Dr. Alsawah checked and monitored Patricia's carcinoembryonic antigen (CEA) level approximately every four to six weeks, with the level ranging from 1.6 to 4.4 nanograms per milliliter of blood (ng/mL) in nine separate tests. An abdominal and pelvic computerized tomography (CT) scan did not reveal recurrence or spread of the cancer.

Monitoring CEA levels in patients is a critical indicator for discovering cancer recurrence. In his deposition, Dr. Jeffrey Gordon, a board-certified medical oncologist and hematologist, testified that, based on his experience and review of peer-reviewed medical literature, a CEA level above 15 ng/mL rarely reflected a false indicator of colorectal cancer. And, according to Dr. Gordon, if the CEA level was over 35 ng/mL, "it was always associated with a recurrence of colorectal cancer."

In March 2014, Patricia's CEA level was checked again, and it measured 4.5 ng/mL. This was the only CEA test performed in 2014. Patricia's CEA level was 8.3 ng/mL in January 2015 and rose to 24.2 ng/mL in April 2015. By November 2015, her CEA level had once again risen, testing at 38.6 ng/mL. Despite the elevated CEA level, a CT scan performed in 2015 did not reveal a recurrence or spread of the cancer. Dr. Alsawah did not order any other diagnostic procedures or further explore the cause of the elevated CEA level.

For the next two years, Patricia's CEA levels continued to rise precipitously. Patricia had a CEA level of 59.3 ng/mL in May 2016. A CT scan and colonoscopy were performed but did not reveal a recurrence or metastasis of the cancer. When Patricia saw Dr. Alsawah on August 23, 2016, he again tested her CEA level, which measured 78.5 ng/mL. She also complained of fatigue. Again, Dr. Alsawah did not further explore the cause of the elevated CEA level. He also began scheduling Patricia for visits every six months.

In February 2017, Patricia's CEA level was 175.9 ng/mL. In August 2017, her CEA level measured 459 ng/mL, and Patricia complained of weakness and fatigue. A CT scan performed in August 2017 revealed a large liver mass suspicious of metastasis with possible involvement of the adrenal glands. There was no apparent indication of tumor recurrence at the original surgical site. A positron emission tomography (PET) scan also showed a large hepatic mass and additionally gave rise to cancer concerns regarding the right adrenal gland. Patricia had a liver biopsy on October 9, 2017, which confirmed a metastatic adenocarcinoma.

On October 23, 2017, Patricia conferred with a surgeon regarding possible treatment of the metastasized cancer, but was advised that surgery was no longer a viable option. Patricia died in February 2018.

B. COMPLAINT AND ALLEGATIONS OF MALPRACTICE

On May 24, 2019, the Estate filed a medical malpractice complaint against HMC and Dr. Alsawah. Count I alleged negligence by Dr. Alsawah. The Estate maintained that Dr. Alsawah breached the standard of care by failing to "[e]valuate and/or investigate the cause of [Patricia's] increasing CEA levels[,]" by failing to "[w]ork up the patient to rule out the presence of metastatic disease[,]" and by committing "[o]ther acts and/or omissions to be determined throughout the course of discovery." The Estate also alleged:

34. As a direct and proximate result of the aforementioned violations of the standard of care by Dr. Alsawah, there was a delay in the diagnosis of Patricia Benigni's metastatic disease.
35. As a result of the delay in diagnosis, there was an advancement in the disease process resulting in the formation and metastatic lesions in the liver and adrenal glands.
36. That an earlier diagnosis of the disease would have given Patricia Benigni a better prognosis, including increased survival or cure.

In Count II of the complaint, the Estate alleged vicarious liability with respect to HMC.

The Estate attached an affidavit of merit by Dr. Gordon to the complaint. He averred that "[a]n earlier diagnosis of the disease would have given Patricia Benigni a better prognosis, including survival." Dr. Gordon further stated:

If the appropriate workup and evaluation would have been followed up on, it would have evidenced the disease process and would have placed Patricia Benigni in a much more favorable category for a successful treatment outcome, and if not cure, then for long-term survival.

Dr. Gordon asserted that with Patricia's rising CEA level in 2015, Dr. Alsawah breached the standard of care by relying solely on the CT scans, physical examinations, and other blood work. According to Dr. Gordon, a PET scan, which provides a "better yield" than a CT scan, should have been ordered. Dr. Alsawah in 2015 should also have ordered magnetic resonance imaging (an MRI), a scope, and a biopsy to explore the cause of the elevated CEA levels.

Dr. Gordon testified that for a patient diagnosed with stage III colorectal cancer in 2012, such as Patricia, the survival rate was 75% to 85%. He noted that it is common for colorectal cancer to metastasize to the liver. He stated that "when these cancers get to the liver, the disease course can pick up and become rapid." Dr. Gordon's deposition testimony was consistent with his affidavit, though much of the deposition focused on identifying statistical rates of survival of stage IV colorectal cancer.

Dr. Gordon provided a separate affidavit during summary disposition proceedings. Dr. Gordon reiterated the points that he had made in his affidavit of merit. He averred that "[a]n earlier diagnosis would have given [Patricia] a better prognosis, including survival." Dr. Gordon further averred that it was his "opinion that appropriate workup and evaluation would have evidenced the disease process and would have placed [Patricia] in a much more favorable category for a successful treatment outcome, for long-term survival, if not cure." He indicated that he was familiar with data maintained by the National Cancer Institute and its Surveillance, Epidemiology, and End Results (SEER) Program, as well as data maintained by the America Joint Committee on Cancer. Dr. Gordon emphasized that further investigation by Dr. Alsawah was imperative to identify the cause of Patricia's rising CEA level. According to Dr. Gordon, the medical literature, which was attached to his affidavit and referenced in his deposition, reflected that the "detection of recurrences at an earlier stage is associated with a higher rate of curative treatment." Dr. Gordon additionally averred:

7. It is my opinion that proper investigation of the cause of the rising CEA levels would have evidenced the metastatic disease as early as November of 2015. It is further my opinion that if the liver metastasis was diagnosed in November 2015, rather than in 2017, it is more likely [Patricia] would have had an option for curative-intent surgery, as well as additional treatment modalities. These modalities would have provided an opportunity to achieve a better result, including survival. My opinion that these modalities, including curative-intent surgery, would have provided such an opportunity is based on published medical literature.
8. This literature indicates, in surgical case series, five-year overall survival rates following surgical resection of metastatic colorectal cancer to the liver range from 24 to 58 percent.
C. MOTION FOR SUMMARY DISPOSITION AND THE TRIAL COURT'S RULING

In February 2021, defendants moved for summary disposition under MCR 2.116(C)(10). Defendants' argument focused on the second sentence of MCL 600.2912a(2) and the loss-of-opportunity doctrine. They argued that there was no scientifically...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT