Danhoff v. Fahim, unpublished opinion per curiam of the Michigan Court of Appeals, decided May 6, 2021 (Docket No. 352648).
Defendant Daniel K. Fahim, M.D., was accused of puncturing plaintiff’s sigmoid colon during an “extreme lateral intrabody fusion” (XLIF), a minimally invasive procedure on the patient’s spine. At deposition, plaintiff’s standard of care expert testified that perforating the sigmoid colon is an extremely rare complication during XLIF procedures and that, because that type of injury is so rare, “more likely than not, an instrument went awry or something apparent that would, to me, violate the standard of care.”
Defense counsel maintained that defendant did not breach the standard of care, submitting affidavits from two doctors supporting this claim. In addition, defendants asserted that plaintiffs’ standard of care expert’s testimony was not reliable, as the expert’s opinion at trial — that defendant breached the standard of care — was based solely on his experience and background, without supporting literature, and without “the product of any other reliable principle or methods.”
The trial court granted summary disposition to defendants but stated it would address the standard of care issue on reconsideration if plaintiffs could provide additional authority supporting their expert’s standard of care testimony. Plaintiffs moved for reconsideration and submitted an affidavit by their expert and scholarly articles in support, but the trial court denied plaintiffs’ motion.
In affirming the trial court’s granting summary disposition, the Michigan Court of Appeals noted that plaintiff’s expert’s opinion:
“… amounted to concluding that the breach of the standard of care was based solely on the unlikelihood of such an injury. … [His] standard of care opinion testimony was based entirely on … his assumptions in that regard, solely as a result of his own background and experience. Indeed, at his deposition, [plaintiffs’ expert] testified that he conducted a search for relevant medical literature, but only to confirm his preexisting notion that an injury to the sigmoid colon during such surgery is extremely unusual; [plaintiffs’ expert] could not find any medical literature to support his standard of care opinion that any injury to the sigmoid colon during such surgery was ipso facto outside the standard of care, and in fact his research supported the opposition conclusion — although such injuries are in fact very rare, they are not nonexistent. Even more to the point, no such articles or other supporting methodology were provided to the trial court before it granted summary disposition to defendants. …
“[Plaintiffs’ expert’s] opinion was not based on any methodology other than his bare assertion that he had never heard of such an injury, and therefore, he would conclude that any such injury was caused by malpractice. But plaintiff, and by extension [plaintiffs’ expert], failed to establish that this opinion was shared by the broader medical community or that it was in any way a reliable method for identifying malpractice.”
In addition, the appellate panel put forth that the medical article and abstracts plaintiffs provided at reconsideration:
“… did not actually directly support [plaintiffs’ expert’s] standard of care opinion that the injury to plaintiff’s sigmoid colon during the December 7, 2015 surgery was malpractice per se. Rather, those articles established that such an injury is quite rare. They did not, however, make the connection between rare occurrences in surgery and malpractice on which [plaintiffs’ expert] based his opinion. Similarly, the articles did not address whether bowel injuries were ‘acceptable’ or ‘unacceptable’ complications of XLIF surgeries. Indeed, these articles did not even address medical malpractice or the standard of care; they only collected statistics on the numbers of incidences of such injuries.”
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