The opinion
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RITA WALSH and GARY WALSH, UNPUBLISHED
July 08, 2025
Plaintiffs-Appellees, 12:14 PM
v No. 356517
Oakland Circuit Court
MARC SAKWA, M.D., and WILLIAM LC No. 2016-155529-NH
BEAUMONT HOSPITAL,
Defendants-Appellants,
and
SOUTHEASTERN MICHIGAN
CARDIOVASCULAR SURGEONS PLLC,
Defendant.
ON REMAND
Before: GADOLA, C.J., and BORRELLO and M. J. KELLY, JJ.
PER CURIAM.
This interlocutory appeal returns to this Court on remand from our Supreme Court for
reconsideration in light of that Court’s decision in Danhoff v Fahim, M.D., 513 Mich 427; 15
NW3d 262 (2024). Upon reconsideration, we again reverse the trial court’s order denying
defendants’ motion to exclude the testimony of Dr. Samuels and remand for entry of an order
granting defendants’ motion.
I. FACTS
This is a case alleging medical malpractice. Plaintiffs, Rita and Gary Walsh, claim that
defendant, Marc Sakwa, M.D., breached the standard of care when performing a minimally
invasive mitral-valve-repair surgery on Rita Walsh at defendant William Beaumont Hospital on
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June 25, 2013. When this case was initially 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 2.]
In 2022, this case returned to this Court as an interlocutory appeal of the trial court’s order
denying defendants’ motion to exclude the testimony of plaintiffs’ expert witness. In an opinion
reversing the order of the trial court and remanding for entry of an order granting defendants’
motion, we summarized the events that followed the surgery as follows:
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;
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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;
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 Daubert1 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
1
Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
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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.2 Dr.
Samuels testified that the 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
2
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
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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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.
[Walsh v Sakwa, unpublished per curiam opinion of the Court of Appeals, issued
September 1, 2022 (Docket No. 356517), p 2-4.]
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). On
appeal, defendants contended that the trial court abused its discretion by finding Dr. Samuels’
standard of care testimony reliable and therefore admissible. This Court agreed, holding that the
trial court clearly erred by finding that Dr. Samuels’ testimony met the factors of MCL
600.2955(1)(b), (c), (e), (f), and (g). This Court reasoned that the literature and testimony
regarding his informal polling of colleagues that was offered to support Dr. Samuels’ opinion was
not sufficient to demonstrate that his opinion was reliable and generally accepted in the relevant
community, rendering his opinion unreliable. Determining that the trial court therefore abused its
discretion by admitting the testimony, and that the admission of the unreliable testimony would be
inconsistent with substantial justice, this Court reversed the trial court’s order and remanded to the
trial court for entry of an order granting defendants’ motion to exclude Dr. Samuels’ testimony.
Walsh, unpub op at 9.
Plaintiffs sought leave to appeal to our Supreme Court, which held the application in
abeyance pending that Court’s decision in Danhoff. After issuing its decision in Danhoff, in lieu
of granting leave to appeal, the Supreme Court vacated the judgment of this Court in this case and
remanded the case to this Court for reconsideration in light of Danhoff.
II. DISCUSSION
A. STANDARD OF REVIEW
We review for an abuse of discretion a trial court’s decision regarding the admissibility of
witness testimony. Danhoff, 513 Mich at 441. A trial court abuses its discretion when it chooses
an outcome outside the range of reasonable and principled outcomes, and also when it bases its
use of discretion upon an error of law. Id. at 442. We review the trial court’s factual findings
underlying the decision to admit or exclude evidence for clear error. Shivers v Covenant
Healthcare System, 339 Mich App 369, 373-374; 983 NW2d 427 (2021). We review de novo
questions of law underlying evidentiary rulings. Elher v Misra, 499 Mich 11, 21; 878 NW2d 790
(2016). But “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), citing MCR 2.613 (quotation marks omitted).
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B. STANDARD OF CARE
When this case was before this Court previously, we discussed the relevant Michigan
authority regarding the standard of care and its application in this case as follows:
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, 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,
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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.
(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.
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(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
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Adelman, 486 Mich 634, 640-641; 786 NW2d 567 (2010). Generally, it is not
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.
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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 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. [Walsh
v Sakwa, unpublished per curiam opinion of the Court of Appeals, issued
September 1, 2022 (Docket No. 356317), p 5-9.]
This Court concluded that the trial court clearly erred by finding that Dr. Samuels’
testimony met the factors of MCL 600.2955 (b), (c), (e), (f), and (g), because neither Dr. Samuels’
testimony, nor the literature offered to support Dr. Samuels’ opinion, nor his testimony about the
informal polling of his colleagues were sufficient to establish the standard of care, and thereby
demonstrate that his opinion was reliable and generally accepted in the relevant community. This
Court held that the trial court therefore abused its discretion by determining that Dr. Samuels’
testimony was admissible, and that the admission of the unreliable testimony would be inconsistent
with substantial justice. This Court therefore reversed the order of the trial court and remanded to
the trial court for entry of an order granting defendants’ motion in limine.
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C. DANHOFF
Our Supreme Court held plaintiffs’ application for leave to appeal to that Court in abeyance
pending that Court’s decision in Danhoff. In Danhoff, the defendant, Dr. Daniel Fahim, M.D.,
performed lumbar spinal surgery on the plaintiff, Lynda Danhoff, in a procedure known as an
extreme lateral intrabody fusion (XLIF). Danhoff, 513 Mich at 434. After the surgery, it was
determined that Danhoff’s sigmoid colon had been perforated during the XLIF procedure,
necessitating additional surgeries and a lengthy hospital stay, and allegedly resulting in permanent
medical conditions. Id. at 435. Danhoff and her husband filed a medical malpractice action; their
complaint was supported by an affidavit of merit executed by their expert, Dr. Christopher Koebbe,
M.D., who essentially averred that the standard of care was to perform the XLIF procedure in a
manner that avoided perforating a patient’s colon, and offering suggestions of what could have
been done differently by the medical professionals to comport with the standard of care. Id. at
435-437.
Dr. Koebbe testified that there were a few articles stating that the complication of a
perforated colon was extremely rare while performing the spinal surgery, occurring less than one
percent of the time, and that the particular injury was “an extremely rare complication that was
more likely than not caused by a surgical instrument perforating the colon, an area far enough
away from the operative region so as to constitute a breach of the standard of care.” Id. at 438.
The trial court granted the defendants’ motion for summary disposition under MCR 2.116(C)(10),
finding that the plaintiffs “did not present any foundation as to the reliability and admissibility of
Dr. Koebbe’s standard of care testimony as required by MRE 702 and MCL 600.2955.” Id. at 462
(ZAHRA, J., dissenting).
The plaintiffs moved for reconsideration, submitting a new affidavit from Dr. Koebbe, and
attaching medical articles that purportedly supported his opinion that a bowel injury caused during
the type of procedure performed was not an acceptable known complication but instead was a rare
occurrence that necessarily was the result of surgical error. Danhoff, 513 Mich at 439. The trial
court denied the motion for reconsideration, concluding that Dr. Koebbe’s affidavit and attached
articles did not demonstrate that Dr. Koebbe’s testimony was reliable. Id. This Court affirmed
the trial court’s ruling. Id.
Our Supreme Court in Danhoff reversed the decision of this Court and remanded the matter
to the trial court to redetermine whether Dr. Koebbe’s opinions were reliable under MRE 702,
MCL 600.2955, and MCL 600.2169. The Supreme Court held that the trial court and this Court
erred by concluding that Dr. Koebbe’s opinions were unreliable on the basis that they were
unsupported by medical literature. Id. at 456. The Supreme Court explained that MRE 702, MCL
600.2955, and MCL 600.2169 govern “whether an expert is qualified,” and confirmed that Elher
and Edry v Adelman, 486 Mich 634; 786 NW2d 567 (2010), continue to provide the legal standards
to assess expert reliability. Danhoff, 513 Mich at 452.
In Edry, the Supreme Court held that “while not dispositive, a lack of supporting literature
is an important factor in determining the admissibility of expert witness testimony.” Edry, 486
Mich at 640, citing Craig, 471 Mich at 83-84. The Court in Edry further concluded that “[w]hile
peer-reviewed, published literature is not always a necessary or sufficient method of meeting the
requirements of MRE 702, in this case the lack of supporting literature, combined with the lack of
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any other form of support for [the expert’s] opinion, renders [the] opinion unreliable and
inadmissible under MRE 702.” Edry, 486 Mich at 641.
Similarly, the Supreme Court in Elher, consistent with Edry, stated that “[a] lack of
supporting literature, while not dispositive, is an important factor in determining the admissibility
of expert witness testimony.” Elher, 499 Mich at 23. The Court in Elher further concluded that
the trial court did not abuse its discretion by concluding that the expert’s testimony in that case
was unreliable because the expert “admitted that his opinion was based on his own beliefs, [and]
there was no peer-reviewed medical literature supporting his opinion.” Id. at 27-28.
In Danhoff, the Supreme Court held that in the context of a medical malpractice case, the
use of scientific literature is not always necessary or sufficient to establish the requirements stated
in MRE 702, especially when the adverse medical event is rare and no supportive literature is
available. Danhoff, 513 Mich at 432-433. The Supreme Court explained that the absence of
published medical literature does not necessarily render the proposed expert’s testimony unreliable
and therefore inadmissible, but nor does published medical literature ensure reliability. Danhoff,
513 Mich at 453. Rather, “[e]xpert testimony is inadmissible when it does not meet the reliability
requirements of MRE 702, MCL 600.2955, and MCL 600.2169,” Danhoff, 513 Mich at 454, and
instead “scientific literature is one of the factors that a trial court should consider when determining
whether the opinion is reliable.” Id. at 433. The Court explained:
Neither MRE 702 nor MCL 600.2955 requires a trial court to exclude the testimony
of a plaintiff’s expert on the basis of the plaintiff’s failure to support their expert’s
claims with published literature. Instead MCL 600.2955 presents a nonexhaustive
list of seven factors that a trial court shall consider when it determines whether an
expert’s opinions are reliable.
***
Although published literature may be an important factor in determining reliability,
it is not a dispositive factor, the absence of which results in a finding that the
proposed expert’s testimony is unreliable and thus, inadmissible. [Danhoff, 513
Mich at 452-453.]
The Supreme Court did not determine the admissibility of Dr. Koebbe’s testimony in Danhoff, but
held that the lower courts erred by finding Dr. Koebbe’s opinion unreliable merely because it was
unsupported by medical literature and remanded to the trial court for reconsideration. Id. at 456.
Reconsidering this case in light of Danhoff, we once again conclude that the trial court in
this case abused its discretion by admitting Dr. Samuels’ testimony. This Court’s previous opinion
concluded that the evidence in this case was insufficient to demonstrate that Dr. Samuels’ opinion
was reliable. This Court’s previous analysis comports with the standard announced in Danhoff,
which reaffirmed the Supreme Court’s prior rulings in Elher and Edry, and confirmed as proper
the application of MRE 702 and MCL 600.2955 upon which this Court’s opinion in this case rests.
See Walsh, unpub op at 8-14. To the extent that Danhoff clarifies that Elher and Edry do not
preclude the admissibility of an expert’s opinion as reliable when the adverse medical event is rare
and no supporting medical literature exists, the analysis in this case does not change.
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As in Danhoff, the task before this Court was to “determine whether the testimony of a
medical expert who presented an affidavit of merit to describe the standard of care and its potential
breach was sufficiently reliable to be admissible.” Danhoff, 513 Mich at 447. But unlike Danhoff,
in this case the adverse medical event was not entirely rare and medical literature discussing the
circumstances of the event was not absent.3 Moreover, unlike Danhoff, this Court in this case did
not find the expert opinion testimony unreliable because it was unsupported by medical literature;
rather, this Court held that Dr. Samuels’ testimony and the literature proffered to support his
opinion did not properly articulate a standard of care.
As discussed, Dr. Samuels testified that the standard of care during the procedure in
question was to refrain from stitching the catheter to the heart, and to verify before closing the
incision that the catheter is not ensnared. Dr. Samuels opined that Dr. Sakwa must have violated
the standard of care because the catheter became ensnared. That is, Dr. Samuels testified that the
standard of care simply was not to stitch the catheter, i.e., not to make an error. Plaintiffs submitted
literature advising that the catheter is not to be ensnared by sutures, which states the obvious.
But typically, the standard of care consists of the steps a reasonably prudent professional
would take to avoid an adverse medical event. It is insufficient to establish the standard of care
simply to describe a bad outcome and decry it; rather, the standard of care should explain what a
reasonably prudent doctor would do, in keeping with the standards of professional practice, 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. Again, unlike Danhoff, in this case this Court did not focus on the lack of published
literature supporting Dr. Samuels’ opinion, but instead concluded that Dr. Samuels and the
literature upon which he based his opinion did not adequately identify the standard of care, or
rather, any standard of care at all.
On remand, plaintiffs correctly state that Danhoff did not overrule either Elher or Edry.
See Danhoff, 513 Mich at 452. Plaintiffs assert, however, that before the Supreme Court’s decision
in Danhoff, Ehler left doubt regarding the role of medical literature in determining the reliability
of a standard-of-care witness in a medical malpractice action, resulting in Michigan courts
thereafter over-emphasizing the importance of medical literature in assessing an expert witness.
The Court in Danhoff, however, did not discard published literature from the considerations
relevant to determining the reliability of an expert’s testimony. On the contrary, while Danhoff
explained that the lack of published literature does not necessarily render an expert’s testimony
inadmissible, Danhoff stressed that a trial court is required to test proffered expert testimony under
MRE 702, MCL 600.2955, and MCL 600.2169, emphasizing that MCL 600.2955 “presents a
nonexhaustive list of seven factors that a trial court shall consider when it determines whether an
expert’s opinions are reliable.” Danhoff, 513 Mich at 453. Of the seven statutory factors, factor
(b) specifically requires a trial court to consider whether the opinion and its basis have been
subjected to “peer review publication,” while factors (a), (e), (f), and (g) require a trial court to
consider whether the opinion and its basis have been subjected to scientific testing and replication
3
For example, the Kaplan article discussed having reviewed 10 cases of Swan-Ganz catheter
entrapments. See Walsh, unpub op at 8.
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and the acceptance of the proffered opinion in the relevant expert community and outside of the
context of litigation, all of which suggest the consideration of some sort of published material. See
MCL 600.2955(a), (b), (e), (f), and (g).
In this case, the proffered published material, which we are still to consider under Danhoff,
suffers from the same defect inherent in Dr. Samuels’ testimony. It too fails to establish a reliable
standard of care. Both Dr. Samuels and the literature merely counsel against a certain bad result,
but without instructing how to avoid the bad result. The failure of Dr. Samuels’ testimony in this
case is that it does not articulate a standard of care. Our holding is premised on this deficiency in
Dr. Samuels’ testimony, not strictly on the lack of scientific literature in support of it, which was
the issue addressed in Danhoff.
Upon reconsidering this case in light of Danhoff, we conclude that Danhoff does not alter
or negate the conclusion of this Court’s prior opinion that the trial court clearly erred by finding
that Dr. Samuels’ opinion testimony satisfied the factors in MCL 600.2955(1), and thus the trial
court abused its discretion by admitting the testimony. Reversed and remanded to the trial court
for entry of an order granting defendants’ motion to exclude Dr. Samuels’ testimony. We do not
retain jurisdiction.
/s/ Michael F. Gadola
/s/ Michael J. Kelly
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