Estate of Taylor v. Univ. Physician Grp.

• Decision Date: 25 July 2019
• Docket Number: No. 338801,338801
• Citation: Estate of Taylor v. Univ. Physician Grp., 329 Mich.App. 268, 941 N.W.2d 672 (Mich. App. 2019)
• Parties: ESTATE OF Effie TAYLOR, BY Oras TAYLOR, Personal Representative, Plaintiff-Appellee, v. UNIVERSITY PHYSICIAN GROUP, Legacy Shgd, VHS Sinai Grace Hospital, Inc., Tenet Healthcare Corporation, VHS of Michigan, Inc., VHS Physicians of Michigan, DMC Lahser Ambulatory, and DMC Lahser Campus, Defendants and Franklin Medical Consultants, PC, and Manuel Sklar, Defendants-Appellants.
• Court: Court of Appeal of Michigan

329 Mich.App. 268

941 N.W.2d 672

ESTATE OF Effie TAYLOR, BY Oras TAYLOR, Personal Representative, Plaintiff-Appellee,

v. UNIVERSITY PHYSICIAN GROUP, Legacy Shgd, VHS Sinai Grace Hospital, Inc., Tenet Healthcare Corporation, VHS of Michigan, Inc., VHS Physicians of Michigan, DMC Lahser Ambulatory, and DMC Lahser Campus, DefendantsandFranklin Medical Consultants, PC, and Manuel Sklar, Defendants-Appellants.

No. 338801

Court of Appeals of Michigan.

Submitted January 10, 2019, at Detroit.

Decided July 25, 2019, 9:15 a.m.

Bendure & Thomas, PLC, Grosse Pointe Park (by Mark R. Bendure ) and McKeen & Associates, P.C., Detroit (by Brian J. McKeen and Kenneth Lee ), for the estate of Effie Taylor.

Tanoury, Nauts, McKinney and Garbarino, PLLC (by Anita Comorski, Detroit, Linda M. Garbarino, Livonia, and William A. Tanoury, Detroit) for Franklin Medical Consultants, PC, and Manuel Sklar, M.D.

Before: Gleicher, P.J., and Stephens and O'Brien, JJ.

Gleicher, P.J.

This medical malpractice case arises from a colonoscopy performed by defendant Manuel Sklar, M.D., on plaintiff’s decedent, Effie Taylor. During the procedure, Dr. Sklar observed lesions in Taylor’s colon that he believed were arteriovenous malformations (AVMs). Dr. Sklar biopsied the suspected AVMs. Three days later, Taylor developed colorectal bleeding. Despite the emergent removal of her entire colon, Taylor died.

Plaintiff claims that Dr. Sklar breached the standard of care by biopsying the AVMs, particularly since Taylor had recently taken Plavix, a blood thinner, and was a devout Jehovah’s Witness who refused blood transfusions. Plaintiff’s expert witness, Dr. Todd Eisner, testified that the improper and unindicated biopsies caused the bleeding that ultimately led to Taylor’s death.

Dr. Sklar’s defense focused on causation. His expert witness, Dr. Veslav Stecevic, performed an emergent colonoscopy on Taylor the day before she died, looking for the source of the bleeding in her colon. According to Dr. Stecevic, the bleeding originated at the site of a ruptured diverticulum, a "deep pocket" in the intestinal wall. Dr. Stecevic opined that the ruptured diverticulum was wholly incidental to the biopsies and conceded that it was a "random" event. Defendants assert that Dr. Stecevic’s testimony must be believed. Crediting Dr. Stecevic, defendants reason, demands the entry of summary disposition in favor of Dr. Sklar.

The circuit court disagreed, and so do we. Given Dr. Sklar’s testimony that he biopsied the suspected AVMs and Dr. Eisner’s reasonable explanation that the biopsy of the AVMs likely caused Taylor’s hemorrhage, Dr. Stecevic’s testimony that the bleeding was caused by a ruptured diverticulum creates a fact question regarding the source of the fatal bleeding. As in every case involving eyewitness testimony, a jury is free to believe or disbelieve the witness’s account. That the eyewitness is a physician does not defeat this rule.

I

At his deposition, Dr. Sklar acknowledged awareness that Taylor, a 79-year-old woman and a Jehovah’s Witness, had been taking Plavix before the colonoscopy. He had instructed her to discontinue the Plavix five to seven days before the procedure; however, according to the medical record, Taylor had stopped taking the drug only three days before. Dr. Eisner opined that Taylor still had Plavix in her system at the time of the colonoscopy, "which would be another reason not to take biopsies in a Jehovah’s Witness, especially of what he thought was an AVM."

Dr. Sklar dictated the official operative report on the day of the colonoscopy. He noted that a segment of Taylor’s ascending colon "had an appearance of multiple small blood vessels suggestive for an extensive AVM malformation." The report continues, "Biopsies were taken." Dr. Sklar’s "final diagnoses," as recorded in the medical record, were "[d]iverticulosis and arteriovenous malformations." At his deposition, Dr. Sklar repeatedly confirmed that he biopsied "a vascular lesion" (an AVM is an abnormal collection of coalesced blood vessels). Dr. Sklar’s records do not support that he biopsied a diverticulum, and he did not report any diverticular bleeding.

Three days after the colonoscopy, Taylor presented at Beaumont Hospital with rectal bleeding. An angiogram failed to locate the bleeding’s source. Dr. Stecevic performed a colonoscopy to locate the source of the blood and to stem its flow. He claimed that he did not see any AVMs during his examination of Taylor’s colon and asserted that there were none. According to Dr. Stecevic, Dr. Sklar had not biopsied an AVM, despite that Dr. Sklar’s records and testimony support that he did:

Q. Do you believe that Dr. Sklar biopsied an [AVM]?

A. No.

Q. Why?

A. Because there was no [AVM].

As noted, in Dr. Stecevic’s opinion, the source of Taylor’s bleeding was a ruptured diverticulum. That this occurred three days after undergoing biopsies of her colon was "simply a coincidence," Dr. Stecevic agreed, because a bleeding diverticulum is a "random event."

Dr. Stecevic recorded that he found "[r]ed blood ... in the entire colon" during the second colonoscopy and performed a "[l]imited exam due to large amount of blood in the entire colon." Dr. Stecevic injected epinephrine into what he thought was a bleeding diverticulum. He noted that this successfully staunched the hemorrhage coming from Taylor’s colon. But Taylor continued to bleed. To try to save her life, a surgeon removed her entire colon. Dr. Stecevic conceded that the surgery was performed because there may have been other sources of bleeding. Despite this effort, Taylor died.

II

Dr. Eisner disagreed with Dr. Stecevic’s opinion about the source of the fatal bleed. Dr. Eisner testified that Dr. Sklar biopsied an AVM. This testimony is consistent with that of Dr. Sklar, who documented and testified that he had biopsied an AVM. Dr. Eisner explained that Dr. Sklar’s description of the lesion he biopsied matched an AVM, and that it is common for AVMs to be found in the right colon, where Dr. Sklar performed the biopsies. "I have no reason to doubt when he said it was an AVM that it was an AVM," Dr. Eisner declared.

Dr. Eisner explained that diverticular bleeding is "very rare, however old you are," and is not a reported complication of a colonoscopy. He offered several additional reasons for disbelieving that the bleeding observed by Dr. Stecevic came from a spontaneously ruptured diverticulum rather than a recently biopsied AVM. For instance, there was a considerable amount of blood in Taylor’s colon, as Dr. Stecevic admitted. When there is a lot of blood in the colon, Dr. Eisner opined, "it’s going to pool in the diverticular pockets and then it will come out of the pocket. It can look like the diverticulae are bleeding." Dr. Eisner posited that if the surgeon who removed Taylor’s entire colon believed that the bleeding came from a single ruptured diverticulum, the surgeon would have removed only the portion of the colon surrounding that diverticulum. And Dr. Eisner questioned why the bleeding in Taylor’s colon continued if it was only diverticular and had been effectively controlled by the shot of epinephrine, as claimed by Dr. Stecevic. He summarized, "It would be an unusual coincidence for her to have a bleeding diverticulum after what the gastroenterologist thought was an AVM, was biopsied when she took Plavix, and [then] she started to bleed after that."

III

Defendants filed a motion for summary disposition based on Dr. Stecevic’s deposition testimony, contending that the evidence proved that Taylor’s death was caused by a bleeding diverticulum rather than a biopsied AVM. According to defendants, Dr. Eisner ignored this evidence when forming his opinion. Plaintiff pointed out that his claim involved informed consent as well as Dr. Sklar’s negligence in biopsying an AVM. Plaintiff also cited the deposition of Dr. Michael Fishbein, a pathology expert from the University of California, Los Angeles, who allegedly reviewed pathological slides from the colonoscopy that revealed "widespread angiodysplasia," a term used interchangeably with AVM to mean "that the tissue contained abnormally formed blood vessels that involve both venous and arterial structures."¹

The trial court denied defendants' motion, stating, "The Court finds that summary disposition is not appropriate. Plaintiff has produced sufficient expert witness testimony to establish a question of fact regarding whether Defendant negligently performed biopsies that caused the fatal bleed." Defendants filed an application for leave to appeal the trial court’s order denying summary disposition, which this Court granted. Estate of Effie Taylor v. Univ. Physician Group , unpublished order of the Court of Appeals, entered November 15, 2017 (Docket No. 338801).

IV

We consider the circuit court’s summary disposition decision de novo by familiarizing ourselves with the pleadings, admissions, affidavits, and other record documentary evidence "in the light most favorable to the nonmoving party to determine whether any genuine issue of material fact exists to warrant a trial."

Walsh v. Taylor , 263 Mich. App. 618, 621, 689 N.W.2d 506 (2004). When the record leaves open an issue on which reasonable minds could differ, a genuine issue of material fact exists, precluding summary disposition. West v. Gen. Motors Corp. , 469 Mich. 177, 183, 665 N.W.2d 468 (2003).

Viewing the evidence in the light most favorable to the nonmoving party means that a court may not make findings of fact or assess the credibility of witnesses. White v. Taylor Distrib. Co., Inc. , 482 Mich. 136, 142-143, 753 N.W.2d 591 (2008). Summary disposition is improper when a trier of fact could reasonably draw an inference supporting causation from the established facts:

It is a basic proposition of law that determination of disputed issues of fact is peculiarly the jury’s province. Even where the evidentiary facts are undisputed, it is improper to decide the matter as one of law if a jury could

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