Fannon v. Lutz

• Decision Date: 29 July 2021
• Docket Number: 350637
• Parties: MARK FANNON and KATHERINE FANNON, Plaintiffs-Appellees, v. MICHAEL LUTZ, M.D. and MICHIGAN INSTITUTE OF UROLOGY, PC, Defendants-Appellants.
• Court: Court of Appeal of Michigan — District of US

MARK FANNON and KATHERINE FANNON, Plaintiffs-Appellees, v. MICHAEL LUTZ, M.D. and MICHIGAN INSTITUTE OF UROLOGY, PC, Defendants-Appellants.

No. 350637

Court of Appeals of Michigan

July 29, 2021

UNPUBLISHED

Oakland Circuit Court LC No. 2017-161832-NH

Before: Gadola, P.J., and Jansen and O'Brien, JJ.

PER CURIAM.

Defendants Michael Lutz, M.D. and Michigan Institute of Urology, PC appeal as on leave granted the order of the trial court denying their motion for summary disposition under MCR 2.116(C)(10) of the complaint filed by plaintiffs, Mark and Katherine Fannon, alleging medical malpractice. We reverse and remand to the trial court for entry of judgment in favor of defendants.

I. FACTS

This case arises from plaintiffs' claim that defendant Lutz negligently failed to diagnose and advise plaintiff Mark Fannon (plaintiff) that he was suffering from prostate cancer. In November 2014, plaintiff's primary physician referred him to endocrinologist Andrew Scrogin, M.D., for an endocrinology workup in response to plaintiff's complaints of low libido, fatigue, and potential low testosterone levels. Scrogin recommended that plaintiff be evaluated by a urologist to rule out prostate cancer before undergoing testosterone replacement therapy (TRT). On November 17, 2014, defendant urologist Lutz, practicing with defendant Michigan Institute of Urology, PC, examined plaintiff and determined that he did not have prostate cancer. As part of the examination, Lutz tested plaintiff's prostate specific antigen (PSA)^[1] level, which at that time was 4.68. Six months earlier, plaintiff's PSA was measured at 2.45.^[2] Lutz did not perform a biopsy or an ultrasound to further investigate the cause of the elevated PSA. Plaintiffs allege that Lutz then inaccurately reported to Scrogin that plaintiff's PSA level on November 17, 2014 was 2.45.

Having received assurance from Lutz that he did not have prostate cancer, plaintiff underwent TRT. Plaintiff saw Lutz for a follow-up appointment on May 18, 2015, at which time plaintiff's PSA had increased to 11.47. Lutz did not perform a biopsy and allegedly did not inform Scrogin of plaintiff's PSA level. Instead, Lutz determined that plaintiff had an infection and prescribed antibiotics. On August 25, 2015, plaintiff again saw Lutz for an appointment and his PSA was measured at 16.33. Lutz performed a biopsy, and 10 of the 13 samples taken tested positive for cancer. Plaintiff thereafter underwent surgery and radiation, and was diagnosed with Stage 4 metastatic adenocarcinoma. In 2016, the cancer had spread to certain lymph nodes; as of this appeal, plaintiff remained on long-term experimental cancer therapy.

Plaintiffs filed this lawsuit alleging that Lutz failed to perform an appropriate clinical workup and failed to properly assess plaintiff's laboratory tests in November 2014. Specifically, plaintiffs alleged that upon learning that plaintiff's PSA was 4.68, Lutz should have performed a prostate biopsy, should have ordered an ultrasound or other imaging, and should have consulted with Scrogin regarding plaintiff's PSA of 4.68. Plaintiffs further alleged that plaintiff should not have undergone TRT with a PSA higher than 3, but that Lutz failed to consider that standard. Plaintiffs also alleged that Lutz should have performed a biopsy at the May 2015 follow-up appointment when plaintiff's PSA was 11.47, and should have recognized the indications of advanced cancer requiring aggressive treatment. Plaintiffs alleged that as a result of Lutz's failure to diagnose plaintiff's prostate cancer, plaintiff underwent the contraindicated TRT, and as a result plaintiff's cancer became metastatic within one year of the November 2014 PSA test. Plaintiffs also alleged that defendant Michigan Institute of Urology is liable for Lutz's negligent acts and omissions. Plaintiff Katherine Fannon claimed loss of consortium against both defendants.

Plaintiffs supported their complaint with the affidavit of merit of urologist Christian Pavlovich, M.D., in which Pavlovich stated that Lutz failed to properly identify, treat, and monitor plaintiff's potential prostate issues in light of the referral to Lutz for evaluation in anticipation of TRT therapy, and in light of plaintiff's elevated PSA levels. Specifically, Pavlovich asserted in his affidavit that Lutz had breached the standard of care by failing to appreciate the import of the November 2014 PSA results given that AUA guidelines supported prostate biopsy at PSA levels of greater than 3 or 4, by failing at that time to perform a biopsy or imaging, by failing to consult with Scrogin regarding the PSA results to determine whether plaintiff should undergo TRT, by not performing a biopsy in May 2015 when plaintiff's PSA reached 11.77, by delaying diagnosis another 3 months using antibiotic therapy, and by allowing plaintiff's cancer to progress from a statistically curable disease to a disease in an incurable state requiring more advanced and prolonged therapies. With respect to causation, the affidavit asserted that as a result of Lutz's failures, plaintiff did not receive a timely, adequate diagnosis of prostate cancer at the point when it likely was statistically curable, and that within a reasonable degree of medical certainty as well as statistically, if Lutz had performed an appropriate exam and biopsy in November 2014 the cancer would have been diagnosed and confined. In addition, the affidavit asserted that if Lutz had conveyed the correct PSA score of 4.68 to Dr. Scrogin in November 2014, plaintiff may not have undergone TRT.

Thereafter, Pavlovich was deposed. When asked if there was specific literature to support that TRT makes prostate cancer more or less likely, Pavlovich testified:

No, you would have to go to sort of case reports of men on testosterone that were found to have aggressive cancer. And there are certainly a lot of men who go on testosterone therapy, their PSA goes up, and they're biopsied and they're found to have cancer. Again, that doesn't say that testosterone caused it. It just says that it sort of maybe unmasked it.

When asked about any literature that supports that TRT exacerbates prostate cancer, Pavlovich testified, in relevant part:

Again, that is, most of us don't think testosterone replacement causes prostate cancer. It is getting a little more difficult to follow whether testosterone replacement exacerbates prostate cancer. And we don't think it exacerbates sort of low grade cancer. And there's not enough data to say for sure whether it exacerbates more aggressive cancers. So the best we can do is just try to make sure someone doesn't have a bad prostate cancer problem before giving them extra testosterone.

When asked further whether there was literature supporting that position, he responded:

I can't show you a good study. I mean I'm sure there are tiny, you know, crappy ones. But there's certainly no general sense from the literature and there's no important paper that we cite that shows that.

Pavlovich testified that he would not opine about when plaintiff's cancer started and that estimates of that sort are inaccurate. He further testified that although he had reviewed American Urological Association (AUA) Prostate Biopsy Guidelines and Endocrine Society Guidelines for testosterone replacement, he did not plan to support his opinion with studies or articles.

When asked if he had standard of care criticisms with respect to Lutz's conduct on November 17, 2014, he responded:

A. Well, I mean again, my contention is, and I think the answer is yes to your question. Is that if in fact he was sent to Dr. Lutz in order to get sort of a urologic evaluation/opinion regarding the safety of proceeding with testosterone replacement therapy, that's a very specific you know, query. And the PSA did come back 4.68. And the free PSA did come back at 18 percent. And that gives this patient a risk of prostate cancer, you know, on this piece of paper of 34 percent. And we don't like to start testosterone replacement therapy in men with prostate cancer unless we know is it nonaggressive, is it medium, is it high aggressive, you know. We don't know the safety of that in men with aggressive prostate cancer. I think he needed to investigate and clear the prostate, meaning, you know, biopsy, MRI. Something more than just a finger, we call it a finger wave, or a digital rectal exam. So my, I think that while, in another context a slightly elevated PSA, abnormal, could be followed six months later, if, especially if there was history of, say, of prior elevations or prior prostatitis. In this case, I think it was behooving the doctor to clear the air here because the other interpretation is, my gosh, this guy has had PSA elevations before, the free PSA is kind of low, this may well be a cancer situation here. And we are dealing with a controversial area. And I'm not sure replacing testosterone is safe. And, again, Endocrine Society Guidelines very much spell out how one handles to the endocrinologist referral to the urologist and expect the urologist to clear the air in terms of whether this man has or does not have cancer. I think sending him back just with a risk of 34 percent, he may or may not, you know, roll the dice, was a bit, you know, cavalier.

Q. So do you actually -- so the only reason you're concerned about possibly doing a biopsy on November 17, 2014, correct me if I'm wrong, is that he may be having this testosterone replacement therapy?

A. Correct.

Q. Okay. So --

A. Correct. That's right.

Q. So [if] he wasn't contemplating testosterone replacement therapy, Dr. Lutz would have complied with the standard of care in telling him let's come back in six months and we'll do a repeat PSA?

A. Yes.

Q. You told me about your standard of care

...