Elher v. Misra

• Decision Date: 08 February 2016
• Docket Number: Docket No. 150824.
• Citation: 878 N.W.2d 790,499 Mich. 11
• Parties: ELHER v. MISRA.
• Court: Michigan Supreme Court

499 Mich. 11

878 N.W.2d 790

ELHER

v.MISRA.

Docket No. 150824.

Supreme Court of Michigan.

Decided Feb. 8, 2016.

Speaker Law Firm, PLLC, Lansing (by Steven A. Hicks ), and DeNardis & Miller, PC, Mount Clemens (by Ronald F. DeNardis ), for plaintiff.

Giarmarco, Mullins & Horton, PC, Troy (by Donald K. Warwick ), and Plunkett Cooney, Bloomfield Hills (by Robert G. Kamenec ) for defendants.

PER CURIAM.

In this medical malpractice case, we must determine whether the circuit court abused its discretion by excluding plaintiff's expert medical testimony under MRE 702. The circuit court granted summary disposition in favor of defendants after excluding the opinion testimony of plaintiff's expert, Dr. Paul Priebe, concluding that it was inadmissible under MRE 702 because it was not reliable and did not meet the requirements of MCL 600.2955. The Court of Appeals, in a split opinion, reversed the circuit court and remanded, concluding that the circuit court incorrectly applied MRE 702 and abused its discretion by excluding Priebe's testimony. The Court of Appeals dissent concluded that the circuit court did not abuse its discretion.

We hold that, under the facts of this case, in which Priebe admitted that his opinion was based on his own personal beliefs, there was no evidence that his opinion was generally accepted within the relevant expert community, there was no peer-reviewed medical literature supporting his opinion, plaintiff failed to provide any other support for Priebe's opinion, and defendant submitted contradictory, peer-reviewed medical literature, the circuit court did not abuse its discretion by excluding Priebe's testimony. The Court of Appeals clearly erred by concluding otherwise. We therefore reverse the judgment of the Court of Appeals and reinstate the opinion and order of the Oakland Circuit Court.

I. FACTS AND PROCEEDINGS

Plaintiff, Paulette Elher, underwent a laparoscopic cholecystectomy (removal of the gallbladder ) performed by defendant Dr. Dwijen Misra, Jr., on August 18, 2008. Before the surgery, Misra discussed the risks and benefits of the surgery with plaintiff, and plaintiff signed a consent form that specifically mentioned a risk of injury to the common bile duct. It is undisputed that, during the surgery, Misra inadvertently clipped the common bile duct leading from plaintiff's liver,¹ resulting in plaintiff having to undergo emergency surgery to remove the clip and repair the duct so that bile could again drain from her liver. According to Misra, "[t]he view from the laparoscope is not optimal and not recognized as optimal and illusions can be created in which the [common bile duct] could be clipped." Misra estimated that this complication occurs in 0.5 to 2% of all laparoscopic gallbladder surgeries.

On February 3, 2011, plaintiff filed suit in Oakland Circuit Court, alleging that Misra breached the applicable standard of care by clipping the common bile duct.² Plaintiff's sole standard-of-care expert was Priebe, a board certified general surgeon and professor at Case Western Reserve University. At his deposition, Priebe testified that, in his opinion, it is virtually always malpractice to injure the common bile duct during a laparoscopic cholecystectomy, absent extensive inflammation or scarring. He considered plaintiff's injury in this case to be a breach of the standard of care, but did not provide any supporting authority for his opinion.

Q. So this [case] falls within your own self-definition of what the standard of care and breach would be in such a case; is that correct?

A. Correct.

Q. You cannot cite to any medical literature whatsoever that supports that opinion, true?

A. Medical literature doesn't discuss standard of care.

Q. So is that true, sir?

A. It's true. But medical literature does not discuss standard of care.

Q. Well, you know, there are a host of colleagues of yours, national and local, who would disagree with you in terms of the only caveats being a breach of the standard of care being extensive scarring or inflammation; isn't that correct?

A. They're entitled to their opinion. In my opinion, that is a breach of the standard of care and malpractice.

* * *

Q. Can you cite one current general surgery colleague at Case Western University who agrees with your position, to your knowledge, that other than these caveats of extensive scarring or inflammation, it is always a breach of the standard of care to cause injury to the common bile duct during a laparoscopic cholecystectomy ?

A. I've never discussed this with any of them. I have no idea what their opinions are.

* * *

Q. And as it relates to [your standard-of-care] opinion, you cannot cite to a shred of medical literature, a medical authority, to support that opinion other than your own belief system, true?

A. There is no authority that exists to do that, so that's true. But there is no authority that does that. So the answer is true.

* * *Q. Do you know whether ... any of you other colleagues in the Case Western system agree with that position?

A. I've never discussed it with them. I wouldn't know.

Q. Can you cite to one colleague in the general surgery field, a board certified general surgeon, who agrees with your position that the only caveats to injury to the common bile duct with laparoscopic cholecystectomy would be extensive scarring or inflammation?

A. I wouldn't know. I've never asked any of my other surgical colleagues, so I would have no idea what their opinion is.

Defendants moved for summary disposition under MCR 2.116(C)(10), arguing, among other things, that Priebe failed to meet the requirements of MRE 702 and MCL 600.2955 because his opinion was unreliable. Plaintiff responded that expert testimony was not required because Misra's negligence would be obvious even to a layperson and that Priebe's opinion was, nonetheless, reliable under the factors listed in MCL 600.2955 given Priebe's experience and qualifications. Defendants replied by filing affidavits from several experts and at least one peer-reviewed publication supporting their opinions that clipping the common bile duct is a known potential complication of laparoscopic cholecystectomy because of the lack of depth perception on the two-dimensional video monitor used to view the area while performing the surgery.

The circuit court concluded that plaintiff had failed to address whether her expert's testimony was reliable under MRE 702 or met any of the requirements of MCL 600.2955. According to the court, plaintiff merely pointed to Priebe's experience and background to argue that his opinion was reliable and, therefore, admissible, but plaintiff's expert was required to present more than his own opinions, credentials, and the number of procedures he had performed. The circuit court concluded that there was no evidence that Priebe's opinion and its basis were subjected to scientific testing and replication, no evidence that Priebe's opinion and its basis were the subject of peer-reviewed publication, and no evidence regarding the degree to which his opinion and its basis were generally accepted in the relevant expert community. The court noted that Priebe admitted that there was no authority supporting his opinion regarding the standard of care, that he was not aware of anyone who agreed with his opinion, and that he could not cite any medical literature supporting his beliefs, although he claimed that medical literature discussing the standard of care did not exist. Given this evidence, the circuit court concluded that the testimony of plaintiff's expert regarding the standard of care was unreliable and inadmissible and granted summary disposition in favor of defendants on plaintiff's malpractice claim.

Plaintiff appealed the circuit court's decision in the Court of Appeals, which reversed the circuit court in a split opinion.³ The majority held that the circuit court incorrectly applied MRE 702 and abused its discretion by concluding that Priebe's testimony was inadmissible. The majority characterized this case as "a difference of opinion among highly qualified experts" and concluded that the experts disagreed on "an issue outside the realm of scientific methodology." Therefore, neither MRE 702 nor MCL 600.2955 stood in the way of Priebe's testimony. The majority rejected as irrelevant the three guideposts relied on by the circuit court—the absence of scientific testing and replication, the lack of evidence that Priebe's opinion and its basis were subjected to peer-reviewed publication, and plaintiff's failure to demonstrate the degree to which Priebe's opinion and its basis were generally accepted in the relevant expert community.

First, the majority concluded that no evidence of testing or replication supported either side's expert opinions. The majority failed to understand how such standard-of-care opinion could ever be tested or replicated. Because Priebe's opinion did not implicate any possible testing or replication, the majority concluded that the circuit court abused its discretion by using this factor to exclude his testimony.

Second, with regard to peer-reviewed publication, the majority stated that Priebe testified that there was no peer-reviewed literature addressing whether clipping the common bile duct qualified as a breach of the standard of care and concluded that defendants' article submissions did not rebut Priebe's statement. The majority concluded that the article authored by Dr. Josef E. Fischer and submitted by defendants was an editorial expressing an opinion that supported rather than refuted Priebe's thesis that common bile duct injuries can represent standard-of-care violations. The article authored by Dr. Lawrence Way and submitted by defendants similarly acknowledged that some bile duct injuries are the product of negligence, said the majority. The majority concluded that the circuit court abused its discretion by relying on the lack of peer-review to exclude Priebe's testimony because no evidence supported that the standard-of-care issue...