Rita Walsh v. Marc Sakwa Md

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

RITA WALSH and GARY WALSH, UNPUBLISHED September 1, 2022 Plaintiffs-Appellees,

v No. 356517 Oakland Circuit Court MARC SAKWA, M.D. and WILLIAM LC No. 2016-155529-NH BEAUMONT HOSPITAL,

Defendants-Appellants, and

JEFFREY ALTSHULER, M.D. and SOUTHEASTERN MICHIGAN CARDIOVASCULAR SURGEONS PLLC,

Defendants. Before: GADOLA, P.J., and BORRELLO and M. J. KELLY, JJ.

PER CURIAM.

In this interlocutory appeal, defendants,1 Dr. Marc Sakwa, M.D., and William Beaumont Hospital, appeal by leave granted the trial court’s order denying their motion to exclude the testimony of Dr. Louis Samuels, M.D., plaintiffs’ standard-of-care expert. We reverse and remand for entry of an order granting defendants’ motion.

1 Defendants Dr. Jeffrey Altshuler, M.D., and Southeastern Michigan Cardiovascular Surgeons PLLC are not parties to this appeal.

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I. FACTS

This medical malpractice action arose after Dr. Sakwa performed a minimally invasive mitral-valve-repair surgery on plaintiff, Rita Walsh, at Beaumont Hospital on June 25, 2013. When this case was previously before this Court, we summarized the pertinent facts as follows:

During a minimally invasive mitral-valve-repair surgery, the surgeon makes an incision in the side of the patient’s chest to access the heart. Once the surgeon has access to the heart, he makes an incision to the left atrium, near the right atrium. A Swan-Ganz catheter runs through the right atrium, and is used to monitor a patient’s blood pressure/flow during surgery. The surgeon never sees inside the right atrium, and therefore never sees the Swan-Ganz catheter. After the surgeon finishes repairing the mitral valve, the surgeon has to close the left atrium by suturing it. During Rita’s surgery, the Swan-Ganz catheter was apparently sitting in the right atrium near where Dr. Sakwa was suturing the left atrium, and Dr. Sakwa stitched the Swan-Ganz catheter into Rita’s heart.

After suturing the left atrium, Dr. Sakwa asked the anesthesiologist to move the Swan-Ganz catheter to ensure that it was not entrapped, and the anesthesiologist reported that the Swan-Ganz catheter moved freely. However, after closing the incision in the side of Rita’s chest, the anesthesiologist reported that he was no longer able to move the Swan-Ganz catheter, so Dr. Sakwa had to perform emergency open-heart surgery to free the catheter. [Walsh v Sakwa, unpublished per curiam opinion of the Court of Appeals, issued June 13, 2019 (Docket No. 341131), p 1.]

Plaintiffs filed a complaint alleging medical malpractice by Dr. Sakwa, asserting that he breached the standard of care by suturing the Swan-Ganz catheter into Rita’s heart, causing Rita additional pain and suffering and additional medical procedures as a result of the consequent open- heart surgery. The complaint also alleged loss of consortium on behalf of Rita’s husband, plaintiff Gary Walsh, as a result of the alleged malpractice. Before the trial court, plaintiffs proffered the expert testimony of Dr. Louis Samuels, M.D., to establish the relevant standard of care. In the Affidavit of Merit accompanying the complaint, Dr. Samuels stated that the standard of care applicable in this case required Dr. Sakwa to:

a. Refrain from suturing the Swan Ganz catheter into the suture line of the heart;

b. Properly place sutures into the heart tissue, taking care to avoid placing stitches into or around the Swan Ganz catheter;

c. Properly identify patient anatomy and the location of the Swan Ganz catheter when suturing the heart;

d. Properly perform Mrs. Walsh’s surgical procedure to avoid suturing the Swan Ganz catheter into the suture line of the heart;

e. Ensure the Swan Ganz catheter is not sutured into the suture line of the heart before closing the patient;

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f. Any and all other standard of care violations, which may become known throughout the course of discovery in this matter.

During discovery, the parties deposed Dr. Samuels, who testified that “the standard of care of the operation is not to entrap the catheter.” He also testified that entrapping the catheter during a minimally invasive mitral-valve-repair procedure is a rare occurrence that could not happen absent negligence. When pressed regarding his conclusion that suturing the catheter is always a breach of the standard of care, he testified that the reason was simply that suturing the catheter is not within the standard of care. Dr. Samuels testified that he had reviewed only one article on the subject of Swan-Ganz catheter entrapment before testifying.

Defendants moved to exclude Dr. Samuels’ testimony on the basis that plaintiffs had not demonstrated that his testimony was reliable as required under MRE 702 and MCL 600.2955. The trial court denied defendants’ motion without holding a Daubert2 hearing or discussing the factors listed in MCL 600.2955(1). This Court granted defendants leave to appeal and thereafter vacated the trial court’s order and remanded the matter, directing the trial court either to explain its reasoning why it found Dr. Samuels’ testimony reliable, specifically addressing the factors set forth in MCL 600.2955(1), or to hold a Daubert hearing. Walsh, unpub op at 5.

On remand, the trial court did not explain its reasoning for finding Dr. Samuels’ testimony reliable, nor did it hold a Daubert hearing. Instead, the trial court denied defendants’ motion to exclude Dr. Samuels’ testimony after hearing counsels’ arguments. Defendants again sought leave to appeal, challenging the trial court’s order. In lieu of granting leave to appeal, this Court vacated the trial court’s order and remanded the matter to the trial court directing the trial court to comply with this Court’s earlier order either to state its reasoning regarding why it found Dr. Samuels’ testimony reliable, specifically addressing the factors set forth in MCL 600.2955(1), or to hold a Daubert hearing. Walsh v Sakwa, unpublished order of the Court of Appeals, entered April 21, 2020 (Docket No. 352094).

The trial court thereafter held a Daubert hearing, at which Dr. Samuels testified that Dr. Sakwa breached the standard of care by ensnaring the Swan-Ganz catheter during the procedure. He testified that although the surgeon cannot see the catheter during a minimally invasive mitral- valve-repair procedure, the surgeon must “know exactly the depth of where that needle is going,” and that the stitching should never cross through the right atrium. He opined that “[t]here are certain principles in surgery . . . and one of them is to know exactly where the needle, the knife, whatever instrument you’re using, where it’s going.” Dr. Samuels testified that under the facts of this case, Dr. Sakwa violated the standard of care by suturing the catheter.

Dr. Samuels testified that three articles supported his opinion regarding the standard of care: the Kaplan article, the Kansara article, and the Vucins article.3 Dr. Samuels testified that the

2 Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). 3 See Mehmet Kaplan, M.D., et al., Swan-Ganz Catheter Entrapment in Open Heart Surgery, 15 J. Cardiac Surgery 313 (2000) (the Kaplan article); Bhuvnesh Kansara, et al., Swan-Ganz Entrapment During Cardiac Surgery–a Case Report, 29 Indian J. Thoracic Cardiovascular

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Kaplan article supported his opinion that ensnaring the Swan-Ganz catheter is a breach of the standard of care, stating in pertinent part:

Yeah, it did support my conclusion. And rather than paraphrase, I’ll just read the conclusion because it’s exactly in support of what I’ve been talking about, and that is to say:

When performing open heart surgery, the surgeon should not leave the Swan-Ganz catheter in the suture while closing the right or left atriotomy, or during venous cannulation. In addition, the catheter should be move[d] after suturing to ensure that there is no entrapment.

That’s exactly what I’ve been talking about.

Dr. Samuels testified that the Kansara article also supported his opinion because it discussed the circumstance of a deep stitch accidentally catching a Swan Ganz catheter. Dr. Samuels testified that although the Kansara article discussed stitching in a different structure of the heart, the superior vena cava, “the support is in the concept of the deep stitch catching the catheter. And the defense attorney is correct, it’s a different location, but the concept is the same. The deep stitch is what caused the catheter to be entrapped, and that’s not supposed to happen.” Dr. Samuels indicated that the Vucins article also supported his opinion.

Dr. Samuels acknowledged that none of the articles specifically state that a surgeon breaches the standard of care when ensnaring the catheter, but opined that a surgeon doing so was so obviously negligent that no literature directly stated that fact. Dr. Samuels also testified that he polled seven of his current or former colleagues, and six agreed that it was a breach of the standard of care for a surgeon to ensnare a Swan-Ganz catheter. Plaintiffs did not provide deposition testimony or affidavits from the colleagues.

At the end of the hearing, the trial court found Dr. Samuels’ testimony reliable under MRE 702 and MCL 600.2955. The trial court concluded that, on the basis of the Kaplan, Kansara, and Vucins articles, and Dr. Samuels’ testimony about his polling of his colleagues, factors (a) and (d) of MCL 600.2955(1) were not applicable, but factors (b), (c), (e), (f), and (g) were demonstrated. The trial court therefore denied defendants’ motion to exclude Dr. Samuels’ testimony. This Court granted defendants leave to appeal the trial court’s order. Walsh v Sakwa, unpublished order of the Court of Appeals, entered June 16, 2021 (Docket No. 356517).

II. ANALYSIS

Defendants contend that the trial court abused its discretion by finding Dr. Samuels’ standard of care testimony reliable, and therefore admissible. We agree.

Surgery (2013) (the Kansara article); and Eduards J. Vucins, M.D., et al., Vent Stitch Entrapment of Swan Ganz Catheters During Cardiac Surgery, 63 Anesth Analg 772 (1984) (the Vucins article).

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A. STANDARD OF REVIEW

We review a trial court’s decision regarding the admissibility of a witness’ testimony for an abuse of discretion. Lenawee Co v Wagley, 301 Mich App 134, 161-162; 836 NW2d 193 (2013). A trial court abuses its discretion when it chooses an outcome outside the range of reasonable and principled outcomes. Id. at 162. We review the trial court’s factual findings underlying the decision to admit or exclude evidence for clear error. Shivers v Covenant Healthcare System, ___ Mich App ___, ___; ___ NW2d ___ (2021) (Docket Nos. 351638, 351795, 351863); slip op at 1. However, “any error in the admission or exclusion of evidence will not warrant appellate relief unless refusal to take this action appears . . . inconsistent with substantial justice, or affects a substantial right of the [opposing] party.” Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004) (quotation marks and citation omitted).

We review questions of law underlying evidentiary rulings de novo. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790 (2016). The relevant standard of care in a medical malpractice action is a question of law, and we therefore review that issue de novo. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 16 n 16; 651 NW2d 356 (2002). Once the correct standard of care is determined as a matter of law, we review for an abuse of discretion a trial court’s determination regarding the qualifications of the proposed expert to testify regarding the specifics of the standard of care and whether the standard of care was breached. Id.

B. STANDARD OF CARE

A claim of medical malpractice arises during a professional medical relationship and hinges upon a question of medical judgment. Lockwood v Mobile Med Response, Inc, 293 Mich App 17, 23; 809 NW2d 403 (2011). To establish medical malpractice, the plaintiff must demonstrate (1) the applicable standard of care, (2) breach of that standard of care by the defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. Rock v Crocker, 499 Mich 247, 255; 884 NW2d 227 (2016).

The standard of care refers to what a professional must or must not do. Moning v Alfono, 400 Mich 425, 437-438; 254 NW2d 759 (1977). A breach of the standard of care is a deviation from that standard. See Martinez v Redform Comm Hosp, 148 Mich App 221, 230; 384 NW2d 134 (1986). With respect to the standard of care for a specialist, “the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice,” the defendant “failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances . . . .” MCL 600.2912a(1)(b). The standard of care required of a specialist, here a cardiac surgeon, is “what the ordinary [cardiac surgeon] of ordinary learning, judgment or skill would do or would not do under the same or similar circumstances.” See Albro v Drayer, 303 Mich App 758, 764; 846 NW2d 70 (2014), citing M Civ JI 30.01.

Ordinarily, expert testimony is required to establish both the standard of care and that the defendant breached the standard. Elher, 499 Mich at 21. “Expert testimony is necessary to establish the standard of care because the ordinary layperson is not equipped by common knowledge and experience to judge the skill and competence of the service and determine whether it meets the standard of practice in the community.” Decker v Rochowiak, 287 Mich App 666,

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686; 791 NW2d 507 (2010) (quotation marks and citation omitted). The party offering the expert must demonstrate that the witness is knowledgeable regarding the applicable standard of care. Id. at 685. Expert testimony may not be based on mere speculation, and there “must be facts in evidence to support the opinion testimony of an expert.” Teal v Prasad, 283 Mich App 384, 395; 772 NW2d 57 (2009).

The admission of expert testimony is governed by MRE 702 and MCL 600.2955. Elher, 499 Mich at 21-22. The trial court may admit expert testimony “only once it ensures, pursuant to MRE 702, that expert testimony meets that rule’s standard of reliability.” Gilbert v DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004). MRE 702 incorporates the standards for determining the reliability of expert testimony articulated in Daubert v Merrill Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L: Ed 2d 469 (1993), and requires the trial court to determine that each aspect of a proposed expert witness’ testimony is reliable, including the underlying principles and methodology. Elher, 499 Mich at 22. MRE 702 provides:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

In addition to MRE 702, the trial court in a medical malpractice case also must consider the factors listed in MCL 600.2955(1) when deciding whether an expert’s opinion and its basis are reliable. Elher, 499 Mich at 22-23. The trial court is required to consider the facts, technique, method, and reasoning upon which the expert relied, as provided in MCL 600.2955(1) as follows:

(1) In an action for the death of a person or for injury to a person or property, a scientific opinion rendered by an otherwise qualified expert is not admissible unless the court determines that the opinion is reliable and will assist the trier of fact. In making that determination, the court shall examine the opinion and the basis for the opinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert, and shall consider all of the following factors:

(a) Whether the opinion and its basis have been subjected to scientific testing and replication.

(b) Whether the opinion and its basis have been subjected to peer review publication.

(c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.

(d) The known or potential error rate of the opinion and its basis.

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(e) The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, “relevant expert community” means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.

(f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.

(g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation. [MCL 600.2955(1)].

Depending on the context, some factors identified in MCL 600.2955(1) may not apply in a given case. Elher, 499 Mich at 26.

Here, to establish the standard of care, plaintiffs proffered the testimony of Dr. Samuels, who opined that the standard of care was to refrain from stitching the Swan-Ganz catheter during the procedure, and that stitching the catheter breached the standard of care. Relying on the three articles and Dr. Samuels’ testimony about his conversations with his colleagues, the trial court concluded that MCL 600.2955 (b), (c), (e), (f), and (g) were met. With respect to factor (b), whether the expert’s opinion and its basis were subjected to peer-reviewed publication, the trial court found that the three articles presented agreed with Dr. Samuels that the surgeon should not stitch the catheter to the heart. With respect to factor (c), whether the expert’s opinion and its basis are consistent with the existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique, the trial court again found that the three articles presented were consistent with Dr. Samuels’ testimony that the surgeon should not stitch the catheter to the heart. With respect to factor (e), the degree to which the expert’s opinion and its basis are generally accepted within the relevant expert community, the trial court found that this factor was satisfied by Dr. Samuels’ testimony that six of seven colleagues whom he consulted agreed with him regarding the standard of care. With respect to factor (f), whether the basis of the expert’s testimony was reliable, and factor (g), whether the opinion or methodology is relied upon by experts outside of the context of litigation, the trial court found that both factors were satisfied by the articles and Dr. Samuels’ survey of his colleagues.

Defendants challenge these findings. Defendants argue that the three articles do not support Dr. Samuels’ opinion, and that his testimony about the opinions of his colleagues is not adequate to demonstrate that Dr. Samuels’ opinion is generally accepted in the community of cardiac surgeons. Defendants contend that the trial court erred by finding that MCL 600.2955 (b), (c), (e), (f), and (g) were met. We agree.

As the gatekeeper for expert testimony, the trial court is required to conduct a “searching inquiry,” not only of the data underlying the expert testimony, but also the manner in which the expert interprets the data. Gilbert, 470 Mich at 782. Although the support of peer-reviewed, published literature is not always necessary for the admission of expert testimony, a lack of supporting literature may render an expert’s opinion unreliable; lack of supporting medical literature is an important consideration in determining the admissibility of expert witness testimony. Edry v Adelman, 486 Mich 634, 640-641; 786 NW2d 567 (2010). Generally, it is not

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enough to argue that expert testimony is reliable, and therefore admissible, based solely on the expert’s experience and background. Id. at 642.

In this case, Dr. Samuels testified that the standard of care during the procedure in question was to refrain from stitching the catheter to the heart, and that doing so is a breach of the standard of care. That is, Dr. Samuels testified that the standard of care simply was not to stitch the catheter, i.e., not to make an error. The Kaplan, Kansara, and Vucins articles do not support Dr. Samuels’ opinion. Typically, the standard of care consists of the steps the reasonably prudent professional would take to avoid error. It is insufficient to establish the standard of care simply to describe a bad outcome; rather, the standard of care should explain what a reasonably prudent doctor would do, in keeping with the standards of professional practice, in order to avoid that bad outcome. See Locke v Pachtman, 446 Mich 216, 225; 521 NW2d 786 (1994). Otherwise, “the jury would have had no standard against which to measure [the defendant’s] conduct.” Id.

In this case Dr. Samuels stated that it was incorrect procedure for a surgeon to stitch the catheter to the heart; however, neither Dr. Samuels nor the articles on which he relied stated what a prudent surgeon should do, in keeping with the standards of professional practice, that was not done by Dr. Sakwa. Although the articles agree that a surgeon should not stitch the catheter to the heart during a mitral-valve-repair surgery, the three articles relied upon by Dr. Samuels do not state that a surgeon who accidentally ensnares the Swan-Ganz catheter during surgery has necessarily breached the standard of care. Rather, the articles explain how entrapment may occur and advise what a surgeon should do afterward to free the catheter; the articles do not state the steps the surgeon must take to ensure that he or she does not stitch the catheter during the surgery.

For example, the Kaplan article observes that a Swan-Ganz catheter may be trapped in a suture line during heart surgery. After reviewing 10 cases of Swan-Ganz entrapments during open heart surgery, the authors concluded: “When performing open heart surgery, the surgeon should not leave the Swan-Ganz catheter in the suture while closing the right or left atriotomy, or during venous cannulation. In addition, the catheter should be moved after suture to ensure that there is no entrapment.” The authors do not, however, direct the steps a surgeon should take to avoid initially stitching the Swan-Ganz catheter.

Similarly, the Kansara article examines a case in which a Swan-Ganz catheter had been “entrapped in left ariotonty suture line via a deep suture that had gone through the superior vena cava.” The authors recommend that upon completing surgery the surgeon check to make sure the Swan-Ganz catheter was not ensnared, by “pulling the catheter 5-10 cm at the termination of [surgery], and then reposition[ing the catheter] to ensure its free mobility and early recognition of catheter entrapment.” Like the Kaplan article, the Kansara article fails to describe what the prudent surgeon should do to avoid ensnaring the Swan-Ganz catheter in the first place.

The Vucins article states that “the placement of sutures, especially atrial sutures, may unintentionally entrap the PA catheter . . . . The close proximity of the right and left atria at the level of the right superior pulmonary vein allows a stitch to pass through the back wall of the right atrium.” The authors reported that to reduce the possibility of catheter entrapment, they now insert the catheter using a self-sealing sleeve; the authors then recommend that upon completing the surgery, the surgeon move the catheter to ensure that it moves freely. As with the other two articles on which plaintiffs’ expert relied, the Vucins article does not describe the technique a surgeon

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should employ to avoid ensnaring the catheter. Instead, like the other two articles, the Vucins article states that this is an outcome that can occur, albeit rarely, and describes what to do in the event this outcome is reached. None of the articles state that a surgeon who has initially ensnared a Swan-Ganz has deviated from professional norms, but only advise that the catheter should be checked at the end of the procedure to ensure that it is moving freely, and if it is not the catheter should be freed from the stiches.

In addition, Dr. Samuels’ testimony about an informal survey of seven colleagues sheds little light on whether and to what degree Dr. Samuels’ opinion is generally accepted in the community of cardiac surgeons. At most, Dr. Samuels’ informal survey reveals that six of seven colleagues who are cardiac surgeons agree with his opinion and its basis. This unverified assertion, without more, is not sufficient to establish that Dr. Samuels’ opinion regarding the standard of care is generally accepted. Dr. Samuels’ colleagues appear to have employed the same circular reasoning Dr. Samuels used in assessing Dr. Sakwa’s performance of this surgical procedure. That is, the physicians concluded that suturing the Swan-Ganz catheter is malpractice because a surgeon operating within the standard of care should not suture the Swan-Ganz catheter. But none of the physicians, including Dr. Samuels, appear to have opined on what Dr. Sakwa should have done differently to avoid this outcome. Plaintiffs’ expert’s theory, which appears to hold that malpractice has occurred because of a bad outcome, is akin to strict liability, which the law does not recognize in the context of professional malpractice.

The trial court thus clearly erred in finding that Dr. Samuels’ testimony met the factors of MCL 600.2955 (b), (c), (e), (f), and (g). The literature offered to support Dr. Samuels’ opinion and his testimony about his informal polling of his colleagues are not sufficient to demonstrate that his opinion is reliable and generally accepted in the relevant community. The lack of supporting peer-reviewed literature combined with the lack of any other support for Dr. Samuels’ opinion renders his opinion unreliable. See Elher, 499 Mich at 28. The trial court therefore abused its discretion by determining that Dr. Samuels’ testimony was admissible. We further conclude that the admission of the unreliable testimony would be inconsistent with substantial justice. See Craig, 471 Mich at 76.

Reversed and remanded for entry of an order granting defendants’ motion in limine. We do not retain jurisdiction.

/s/ Michael F. Gadola /s/ Michael J. Kelly

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