Elher v. Misra
| Decision Date | 02 December 2014 |
| Docket Number | Docket No. 316478. |
| Parties | ELHER v. MISRA. |
| Court | Court of Appeal of Michigan — District of US |
Ronald F. DeNardis, Mount Clemens, for plaintiff.
Giarmarco, Mullins & Horton, PC, Troy (by Donald K. Warwick ), for defendants.
Before: BECKERING, P.J., and HOEKSTRA and GLEICHER, JJ.
Before admitting expert medical testimony, a trial court must ensure that it is not infected with junk science. Michigan Rule of Evidence 702 and MCL 600.2955 provide trial courts with the general standards they need to fulfill this gatekeeping obligation. At issue in this medical malpractice case is how those standards apply to a difference of opinion among highly qualified experts concerning whether a surgical error constitutes a violation of the standard of care.
The underlying facts are simple. Defendant Dwijen Misra, Jr., a general surgeon, clipped the wrong bile duct during plaintiff Paulette Elher's laparoscopic gallbladder surgery
. Plaintiff's expert, a general surgeon with extensive experience in the procedure, testified that clipping a patient's common bile duct during an otherwise uncomplicated operation is a breach of the standard of care. Defendants' expert opined that bile duct injuries frequently occur even absent professional negligence. Defendants insisted that plaintiff's expert's testimony did not qualify as reliable under MRE 702 because the expert could not specifically identify any peer-reviewed literature or other physicians who supported his viewpoint. The trial court agreed with defendants, excluded plaintiff's expert's testimony, and dismissed the case.
We hold that the trial court incorrectly applied MRE 702 and abused its discretion by excluding the testimony of plaintiff's expert witness, Dr. Paul Priebe. The reliability factors invoked by the trial court to reject Dr. Priebe's standard-of-care opinion lacked relevance to the testimony offered and the evidence received. Neither the soundness of a scientific methodology nor the legitimacy of underlying data plays a role here. Rather, the experts' disagreement focuses on scientifically sustainable and equally justifiable conclusions. MRE 702 requires that an expert's opinion rest on reliable scientific principles. Once that foundation has been established, MRE 702 does not empower trial courts to determine which of several competing expert opinions enjoys more support. Here, the evidence validated that Dr. Priebe grounded his opinions in “good science.” Accordingly, a jury must decide whether to credit his views.
Dr. Misra removed Elher's gallbladder laparoscopically. Technically called a laparoscopic cholecystectomy
, this surgery is performed by passing long, narrow instruments and a magnification camera called a laparoscope
through several small abdominal incisions. The laparoscope transmits images from the surgical site to video monitors in the operating room. The surgeon manipulates the specialized instruments while viewing the images on the monitors.
An initial step in the procedure involves careful identification of the cystic artery and the cystic duct. After locating these structures, the surgeon places clips above and below the point where each will be divided. The surgeon then cuts the tissue between the clips. Once the cystic artery and the cystic duct have been severed, the gallbladder is dissected away from the liver bed and removed from the abdomen. The cystic duct's continuity must be sacrificed to remove the gallbladder, but the patient's other bile ducts, in particular the common bile duct, are supposed to remain intact.
Dr. Misra clipped Elher's common bile duct. Elher's expert believes that when neither scarring nor inflammation obscures the surgeon's vision, it is a breach of the standard of care to injure the common bile duct. Defendants claim that injuries can happen even in the presence of due care because the laparoscope
creates optical “illusions” that may lead the surgeon astray. This debate frames the evidentiary issue presented to the trial court.
Approximately nine weeks after the operation, Elher presented at a hospital with abdominal pain, nausea, vomiting, and jaundice
. A radiological study called an ERCP revealed that a clip was obstructing her common hepatic duct.1 Surgery was performed to remove the clip and to reconstruct her biliary drainage system.
Elher subsequently filed this medical malpractice suit. Her complaint avers that the standard of care applicable to Dr. Misra required that he:
l. Refrain from clipping or obstructing the common bile duct during the performance of a laparoscopic cholecystectomy
that is identified as an uncomplicated procedure in the operative note.
Dr. Misra breached the standard of care, the complaint continues, by:
l. Fail[ing] to refrain from clipping or obstructing the common bile duct during the performance of a laparoscopic cholecystectomy
that is identified as an uncomplicated procedure.
2. Failing to unequivocally refrain from clipping or obstructing the common bile duct during the performance of a laparoscopic cholecystectomy
that is identified as an uncomplicated procedure.
3. Failing to convert to an open procedure if there was any doubt in Defendant's mind as to the proper anatomical identification of each element of the biliary tree....
The complaint also stated a negligence claim that relied on the doctrine of res ipsa loquitur.
Elher filed an affidavit of merit signed by Dr. Priebe, a board-certified general surgeon. Dr. Priebe's affidavit reiterated the standard-of-care requirements and violations pleaded in the complaint.
Dr. Misra denied that he had violated the standard of care. At his deposition he explained that although “I don't want to clip the hepatic duct,” “[t]he view from the laparoscope
is not optimal and not recognized as optimal and illusions can be created in which the ducts could be clipped.” He clarified: “[I]llusions can occur in a two-dimensional video image that can create an illusion that, according to standard anatomy, the cystic duct and cystic artery are what they appear to be, but the common bile duct in this case was in that illusion.” In Dr. Misra's estimation, this complication occurs in 0.5 to 2 percent of all laparoscopic gallbladder surgeries. Dr. Misra has performed approximately 3,000 to 5,000 such procedures and twice clipped the wrong duct, Elher's surgery included. In the other case, he recognized the error during the operation.
Dr. Priebe, an associate professor of surgery at Case Western Reserve University, performs 50 to 80 laparoscopic gallbladder surgeries
each year and has done so since learning the technique in 1990. He expressed that “absent extensive inflammation or scarring, ... virtually every case of ... major bile duct injury..., in my opinion, would be malpractice.” Dr. Priebe opined that regardless of a surgeon's particular operative approach, “the general rule is that everything should be identified before anything is cut, any major structure.” He admitted to having personally injured a patient's common bile duct when “the anatomy couldn't be delineated because of the scarring and inflammation[.]” When asked whether he could “cite to any medical literature” supporting his standard of care opinion, Dr. Priebe replied: “Medical literature doesn't discuss standard of care,” later reprising: “There is no authority that exists to do that[.]” Dr. Misra had violated the standard of care, Dr. Priebe submitted, “as it relates to delineating the anatomy as he performed the laparoscopic cholecystectomy
.”
Dr. John Webber, a general surgery expert proffered by defendants, admitted that bile duct injuries
may result from medical negligence: “I'm saying there are instances where you can have an injury to the common [bile] duct and it could be malpractice and there are instances where it wouldn't be malpractice.” He disagreed that bile duct injuries occurring during uncomplicated surgeries qualify as negligent per se. Dr. Webber partially premised his opinion on an editorial written by Dr. Josef E. Fischer in The American Journal of Surgery. According to Dr. Webber, the editorial stands for the proposition that “bile duct injuries can occur and is [sic] an inherent risk of the procedure without being below the standard of care.”
Dr. Fischer's essay, a centerpiece of defendants' legal argument, is labeled by The American Journal of Surgery as an “Editorial Opinion.”2 The abstract states:
The author believes that injury to the common duct during laparoscopic cholecystectomy
[sic] is not a result of ...
practice below the standard, but an inherent risk of the operation. This injury needs to be emphasized by the surgical community as an inherent risk of the operation, and patients should be fully informed of this potential complication. [Fischer, Is Damage to the Common Bile Duct During Laparoscopic Cholecystectomy
an Inherent Risk of the Operation?, 197 The American Journal of Surgery 829, 829 (2009).]
Because the Fischer editorial figures prominently in this case, we highlight several additional portions.
Dr. Fischer observed that bile duct injury
occurs slightly more frequently in the laparoscopic gallbladder procedure than in conventional, open operations. Id. at 830. He reviewed various techniques for correctly identifying the bile duct anatomy, observing that “[a]ny or all of these together can help decrease the incidence of common duct injury, but the methods are not foolproof.” Id. Despite precautions, Dr. Fischer opined, common duct injuries occur, and “[s]omehow the trial bar has converted a complication of a procedure that has remained stable, can seemingly occur to anyone,...
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