In its unpublished opinion dated July 18, 2017, the State of Michigan Court of Appeals (“Appellate Court”) affirmed the trial court’s denial of summary judgment in favor of the Michigan medical malpractice defendants with regard to the plaintiffs’ failure to warn theory, but affirmed summary judgment in favor of the defendants with regard to the plaintiffs’ other theory of negligence because the plaintiffs did not proffer admissible evidence to show that, more probably than not, the decedent’s laryngeal cancer would have been detected earlier had the defendants ordered a neck CT when they treated him.
The decedent, a former smoker with a history of chronic alcohol abuse, went to the defendant family practice doctor in December 2010 for episodes of nausea that caused him to gag and occasionally cough up mucus, with tremors, nasal drainage, and sweating during these episodes that had been occurring approximately once a week for about one month. The decedent was prescribed medications to treat his symptoms by the defendant family practice doctor and was later referred to the defendant otolaryngologist. The defendant family practice doctor ordered a chest x-ray that was performed on November 3, 2011 that was read as showing no significant abnormalities.
The defendant otolaryngologist first examined the decedent on November 4, 2011. During that examination, the defendant otolaryngologist used a flexible fiberoptic scope to visualize the decedent’s nasal cavity and throat, including his larynx and vocal cords. The only abnormality she observed was that the decedent’s vocal cords were red, which could be explained by the decedent’s employment as a law professor that required him to speak at length which may cause his vocal cords to become irritated. The defendant otolaryngologist diagnosed the decedent with allergic rhinitis and laryngopharyngeal reflux, provided him with medication, and instructed him to schedule a follow-up appointment for November 15, 2011. The decedent did not schedule a follow-up appointment at the time. The defendant family practice doctor subsequently advised the decedent to follow up with the defendant otolaryngologist.
One year later, the decedent met with the defendant family practice doctor and reported that he had recently been diagnosed with stage 3 or 4 laryngeal cancer that was discovered by way of a CT scan on November 21, 2012, which showed a “slightly enhancing mass . . . measur[ing] approximately 1.7 x 1.2 x 2.5 centimeters” located at the level of the glottis.
The decedent underwent chemotherapy and radiation therapy between December 2012 and February 2013. As of June 2014, his oncologist said he was “cancer free,” but that he would need to be monitored for possible recurrences. The decedent died on January 7, 2016, from an unrelated cause.
The plaintiffs subsequently filed their medical malpractice lawsuit alleging that the defendant family practice doctor and the defendant otolaryngologist breached their standards of care by failing to order a CT scan of the decedent’s neck in a timely manner and by failing to inform the decedent that his symptoms might be caused by cancer.
The defendants filed motions for summary disposition arguing that there was insufficient evidence that their actions or inactions were a proximate cause of the delay in the decedent’s cancer diagnosis. In response, the plaintiffs submitted an affidavit from the decedent unequivocally stating that he would have “followed any and all treatment, testing and/or referral recommendations immediately” had he known he might have cancer.
The trial court found that genuine issues of material fact remained as to the elements of breach and proximate causation and therefore entered an order denying the defendants’ summary disposition motions. The defendants appealed.
The Appellate Court stated that the plaintiffs’ claims rested on two theories of professional negligence, the first of which was that the defendants both failed to order a CT scan of the decedent’s neck in a timely manner. With regard to the plaintiffs’ first theory of medical malpractice, the Appellate Court held that given that the defendants last treated the decedent in December 2011 and in November 2011, respectively, the trial court erred by finding that the differing opinions of the parties’ experts created a genuine issue of material fact as to whether their failure to order an earlier CT scan of the neck was a proximate cause of the plaintiffs’ damages: the plaintiffs did not offer sufficient evidence demonstrating that had a CT scan of the neck been performed at the time, it more likely than not would have resulted in the earlier detection of the decedent’s laryngeal cancer. Accordingly, the Appellate Court held that the trial court erred by denying the defendants’ summary disposition motions with respect to this theory of professional negligence.
However, with regard to the plaintiffs’ second theory of medical malpractice, the Appellate Court noted that the decedent unequivocally stated in his affidavit that he would have immediately followed his physicians’ instructions had he known of the possibility of cancer. The Appellate Court rejected the defendants’ argument that the decedent’s affidavit is not based in fact, and is therefore speculative, because he can only opine about his probable conduct under circumstances that never came to pass. The Appellate Court stated that this logic would result in an insurmountable burden in any medical malpractice claim based on a “failure to warn” theory because it would be impossible to provide more than an opinion about what a person might have done in the event of a timely warning that was not actually provided. The Appellate Court stated that the prohibition against speculative evidence regarding causation should not be construed as a prohibition against an appropriately rendered opinion, whether that opinion is from a lay witness or an expert.
The Appellate Court stated: “Admittedly, [the decedent’s] history of noncompliance with follow-up instructions provided by [the defendants] casts doubt upon the veracity of his affidavit. However, issues of credibility are within the purview of the fact finder at trial and should not be determined by the trial court in the context of a summary disposition motion. As such, the trial court did not err by denying defendants’ summary disposition motions with respect to this theory of professional negligence. ”
Filiatrault v. Perkins, Nos. 331540; 331541
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