Estate of Effie Taylor v. University Physician Group

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

ESTATE OF EFFIE TAYLOR, by ORAS FOR PUBLICATION

TAYLOR, Personal Representative, July 25, 2019

9:15 a.m.

Plaintiff-Appellee,

v No. 338801

Oakland Circuit Court

UNIVERSITY PHYSICIAN GROUP, LEGACY LC No. 2015-147003-NH

SHGD, VHS SINAI GRACE HOSPITAL, INC.,

TENET HEALTHCARE CORPORATION, VHS

OF MICHIGAN, INC., VHS PHYSICIANS OF

MICHIGAN, DMC LAHSER AMBULATORY,

and DMC LAHSER CAMPUS,

Defendants

and

FRANKLIN MEDICAL CONSULTANTS, PC,

and MANUEL SKLAR,

Defendants-Appellants.

Before: GLEICHER, P.J., and STEPHENS and O’BRIEN, JJ.

GLEICHER, P.J.

This medical malpractice case arises from a colonoscopy performed by defendant Manuel

Sklar, M.D., on plaintiff’s decedent, Effie Taylor. During the procedure, Dr. Sklar observed

lesions in Taylor’s colon that he believed were arteriovenous malformations, called AVMs. Dr.

Sklar biopsied the suspected AVMs. Three days later, Taylor developed colorectal bleeding.

Despite the emergent removal of her entire colon, Taylor died.

Plaintiff claims that Dr. Sklar breached the standard of care by biopsying the AVMs,

particularly since Taylor had recently taken Plavix, a blood thinner, and was a devout Jehovah’s

Witness who refused blood transfusions. Plaintiff’s expert witness, Dr. Todd Eisner, testified

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that the improper and unindicated biopsies caused the bleeding that ultimately led to Taylor’s

death.

Sklar’s defense focuses on causation. His expert witness, Dr. Veslav Stecevic, performed

an emergent colonoscopy on Taylor the day before she died, looking for the source of the

bleeding in her colon. According to Dr. Stecevic, the bleeding originated at the site of a ruptured

diverticulum, which Dr. Stecevic opined, was wholly incidental to the biopsies and a “random”

event. Defendants assert that Dr. Stecevic’s testimony must be believed. Crediting Dr. Stecevic,

defendants reason, demands the entry of summary disposition in favor of Dr. Sklar.

The circuit court disagreed, and so do we. Given Dr. Sklar’s testimony that he biopsied

AVMs and Dr. Eisner’s reasonable explanation that the biopsy of the AVMs likely caused

Taylor’s hemorrhage, Dr. Stecevic’s testimony creates a fact question regarding the source of the

fatal bleeding. As in every case involving eyewitness testimony, a jury is free to believe or

disbelieve the witness’s account. That the eyewitness is a physician does not defeat this rule.

I

At his deposition, Dr. Sklar acknowledged awareness that Taylor, a 79-year-old woman

and a Jehovah’s Witness, had been taking Plavix before the colonoscopy. He instructed her to

discontinue the Plavix five to seven days before the procedure; according to the medical record,

Taylor stopped taking the drug only three days before. Dr. Eisner opined that Taylor still had

Plavix in her system at the time of the colonoscopy, “which would be another reason not to take

biopsies in a Jehovah’s Witness, especially of what he thought was an AVM.”

Dr. Sklar dictated the official operative report on the day of the colonoscopy. He noted

that a segment of Taylor’s ascending colon “had an appearance of multiple small blood vessels

suggestive for an extensive AVM malformation.” The report continues, “Biopsies were taken.”

Dr. Sklar’s “final diagnoses,” as recorded in the medical record, were “[d]iverticulosis and

arteriovenous malformations.” At his deposition, Dr. Sklar repeatedly confirmed that he

biopsied “a vascular lesion” (an AVM is an abnormal collection of coalesced blood vessels). Dr.

Sklar’s records do not support that he biopsied a diverticulum, and he did not report any

diverticular bleeding.

Three days after the colonoscopy, Taylor presented at Beaumont Hospital with rectal

bleeding. An angiogram failed to locate the bleeding’s source. Dr. Stecevic performed a

colonoscopy to locate the source of the blood and to stem its flow. He claimed that he did not

see any AVMs during his examination of Taylor’s colon and asserted that there were none.

According to Dr. Stecevic, Dr. Sklar had not biopsied an AVM, despite that Dr. Sklar’s records

and testimony support that he did:

Q. Do you believe that Dr. Sklar biopsied an [AVM]?

A. No.

Q. Why?

A. Because there was no [AVM].

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In Dr. Stecevic’s opinion, Taylor was bleeding from a diverticulum, which is a “deep pocket” in

the intestinal wall. That Taylor was bleeding from a diverticulum three days after undergoing

biopsies of her colon was “simply a coincidence,” Dr. Stecevic opined, because a bleeding

diverticulum is a “random event.”

Dr. Stecevic recorded that he found “[r]ed blood . . . in the entire colon” during the

second colonoscopy, and performed a “[l]imited exam due to large amount of blood in the entire

colon.” Dr. Stecevic injected epinephrine into what he thought was a bleeding diverticulum. He

noted that this successfully staunched the hemorrhage coming from Taylor’s colon. But Taylor

continued to bleed. To try to save her life, a surgeon removed her entire colon. Dr. Stecevic

conceded that the surgery was performed because there may have been other sources of bleeding.

Despite this effort, Taylor died.

II

Dr. Eisner testified that Dr. Sklar biopsied an AVM. This testimony is consistent with

that of Dr. Sklar, who documented and testified that he had biopsied an AVM. Dr. Eisner

explained that Dr. Sklar’s description of the lesion he biopsied matched an AVM, and that it is

common for AVMs to be found in the right colon, where Dr. Sklar performed the biopsies. “I

have no reason to doubt when he said it was an AVM that it was an AVM,” Dr. Eisner declared.

Dr. Eisner explained that diverticular bleeding is “very rare, however old you are,” and is

not a reported complication of a colonoscopy. He offered several additional reasons for

disbelieving that the bleeding observed by Dr. Stecevic came from a spontaneously ruptured

diverticulum rather than a recently biopsied AVM. There was a considerable amount of blood in

Taylor’s colon, as Dr. Stecevic admitted. When there is a lot of blood in the colon, Dr. Eisner

opined, “it’s going to pool in the diverticular pockets and then it will come out of the pocket. It

can look like the diverticulae are bleeding.” Dr. Eisner posited that if the surgeon who removed

Taylor’s entire colon believed that the bleeding came from a single ruptured diverticulum, the

surgeon would have removed only the portion of the colon surrounding that diverticulum. And

Dr. Eisner questioned why the bleeding in Taylor’s colon continued if it was only diverticular

and had been effectively controlled by the shot of epinephrine, as claimed by Dr. Stecevic. He

summarized, “It would be an unusual coincidence for her to have a bleeding diverticulum after

what the gastroenterologist thought was an AVM, was biopsied when she took Plavix, and then

she started to bleed after that.”

III

Defendants filed a motion for summary disposition based on Dr. Stecevic’s deposition

testimony, contending that the evidence proved that Taylor’s death was caused by a bleeding

diverticulum rather than a biopsied AVM. According to defendants, Dr. Eisner ignored this

evidence when forming his opinion. Plaintiff pointed out that her claim involved informed

consent as well as Dr. Sklar’s negligence in biopsying an AVM. Plaintiff also cited the

deposition of Dr. Michael Fishbein, a pathology expert from the University of California, Los

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Angeles who allegedly reviewed pathological slides from the colonoscopy that revealed

“widespread angiodysplasia,” a term used interchangeably with AVM to mean “that the tissue

contained abnormally formed blood vessels that involve both venous and arterial structures.”1

The trial court denied defendants’ motion, stating, “The Court finds that summary

disposition is not appropriate. Plaintiff has produced sufficient expert witness testimony to

establish a question of fact regarding whether Defendant negligently performed biopsies that

caused the fatal bleed.” Defendants filed an application for leave to appeal the trial court’s order

denying summary disposition, which this Court granted. Estate of Effie Taylor v Univ Physician

Group, unpublished order of the Court of Appeals, entered November 15, 2017 (Docket No.

338801).

IV

We consider the circuit court’s summary disposition decision de novo by familiarizing

ourselves with the pleadings, admissions, affidavits, and other record documentary evidence “in

the light most favorable to the nonmoving party to determine whether any genuine issue of

material fact exists to warrant a trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506

(2004). When the record leaves open an issue on which reasonable minds could differ, a genuine

issue of material fact exists, precluding summary disposition. West v Gen Motors Corp, 469

Mich 177, 183; 665 NW2d 468 (2003).

Viewing the evidence in the light most favorable to the nonmoving party means that a

court may not make findings of fact or assess the credibility of witnesses. White v Taylor Distrib

Co, Inc, 482 Mich 136, 142-143; 753 NW2d 591 (2008). Summary disposition is improper

when a trier of fact could reasonably draw an inference supporting causation from the established

facts:

It is a basic proposition of law that determination of disputed issues of fact

is peculiarly the jury’s province. Even where the evidentiary facts are undisputed,

it is improper to decide the matter as one of law if a jury could draw conflicting

inferences from the evidentiary facts and thereby reach differing conclusions as to

ultimate facts. [Nichol v Billot, 406 Mich 284, 301-302; 279 NW2d 761 (1979)

(citations omitted).]

The United States Supreme Court has underscored the reasons that summary judgment is

inappropriate where witnesses to an event provide starkly different descriptions of what they

saw, heard, or perceived.2 Tolan v Cotton, 572 US 650; 134 S Ct 1861; 188 L Ed 2d 895 (2014),

1

As defendants point out in their brief on appeal, Dr. Fishbein’s deposition transcript was not

provided below, and has not been provided on appeal. Defendants have not denied the accuracy

of plaintiff’s description of his testimony. Nevertheless, we have not considered it in reaching

our decision.

2

Michigan’s standards for summary disposition mirror the standards for summary judgment in

federal court. See Maiden v Rozwood, 461 Mich 109, 124; 597 NW2d 817 (1999).

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arose from a police shooting at the home of a man suspected of having stolen a car. The legal

issue presented was whether the officer was entitled to qualified immunity, which immunizes an

officer from liability when the use of force is reasonable. Id. at 651. Witnesses to the shooting

disputed the lighting conditions, the words and tones of voice used by the participants, whether a

threat was made, and the demeanor of the people present at the scene. Id. at 658-659. Despite

these discrepancies, the federal district court granted summary judgment in favor of the

defendant and the United States Court of Appeals for the Fifth Circuit affirmed.

The Supreme Court reversed, highlighting that at the summary judgment stage, courts

must not sort through the evidence to find truth; that job is reserved for the jury. In language

pertinent to the case before us, the Supreme Court emphasized the importance of viewing the

evidence in the light most favorable to the nonmoving party:

The witnesses on both sides come to this case with their own perceptions,

recollections, and even potential biases. It is in part for that reason that genuine

disputes are generally resolved by juries in our adversarial system. By weighing

the evidence and reaching factual inferences contrary to [the plaintiff’s]

competent evidence, the court below neglected to adhere to the fundamental

principle that at the summary judgment stage, reasonable inferences should be

drawn in favor of the nonmoving party. [Id. at 660.]

Like Tolan, this case involves the testimony of an eyewitness. Were we to credit only

Dr. Stecevic’s testimony and disregard Dr. Sklar’s, we would fall into the same error condemned

by the Supreme Court in Tolan. Dr. Sklar testified that he biopsied an AVM. Dr. Eisner drew a

reasonable inference that a biopsied AVM is likely to bleed profusely, particularly when a

patient has recently taken a blood thinner. Given Dr. Stecevic’s admission at deposition that

there may have been multiple bleeding sources in Taylor’s colon, his claim that Taylor’s colon

contained no AVMs at all, and his subjective judgment that he found a bleeding diverticulum

create a fact question regarding the source of Taylor’s fatal bleed.

V

A medical malpractice plaintiff must present evidence demonstrating a causal link

between a defendant’s professional negligence and the plaintiff’s injury. Expert testimony is

required. Pennington v Longabaugh, 271 Mich App 101, 104; 719 NW2d 616 (2006). As in

every negligence case, two causation concepts work in tandem. First, a plaintiff must

demonstrate that “but for” the defendant’s negligence, the plaintiff’s injury would not have

occurred. Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). Once a plaintiff

produces the factual support establishing a logical sequence of cause and effect, the plaintiff

must also come forward with evidence supporting that the actual cause was proximate, meaning

that it created a foreseeable risk of the injury the plaintiff suffered. Id.; Lockridge v Oakwood

Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009). In a medical malpractice case,

circumstantial evidence may suffice to demonstrate but-for causation, as long as the

circumstantial evidence “lead[s] to a reasonable inference of causation and [is] not mere

speculation.” Ykimoff v WA Foote Mem Hosp, 285 Mich App 80, 87; 776 NW2d 114 (2009).

“While a plaintiff need not prove that an act or omission was the sole catalyst for his injuries, he

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must introduce evidence permitting the jury to conclude that the act or omission was a cause.”

Craig v Oakwood Hosp, 471 Mich 67, 87; 684 NW2d 296 (2004).

Defendants’ causation argument in this case rests on the following language from Green

v Jerome-Duncan Ford, Inc, 195 Mich App 493, 498-499; 491 NW2d 243 (1992): “An expert

witness need not rule out all alternative causes of the effect in question, but he must have an

evidentiary basis for his own conclusions. This Court has held that an expert’s opinion was

objectionable because it was based on assumptions that did not accord with the established

facts.” (Citations omitted.) In Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278,

286; 602 NW2d 854 (1999), this Court cited Green in support of its holding that expert

testimony is inadmissible when it “is inconsistent with the testimony of a witness who personally

observed an event in question, and the expert is unable to reconcile his inconsistent testimony

other than by disparaging the witness’[s] power of observation.” According to defendants, Dr.

Eisner’s expert testimony that Dr. Sklar biopsied an AVM is inconsistent with Dr. Stecevic’s

testimony that he found a bleeding diverticulum. Badalamenti is “directly on point,” defendants

insist, and compels that Dr. Eisner’s testimony be stricken.

Defendants’ logic harbors a critical flaw. Dr. Sklar documented in the medical record

and testified at deposition that he biopsied an AVM. Dr. Stecevic disputed that Dr. Sklar had

biopsied an AVM. Given this evidence, the expert “disparaging” the eyewitness’s power of

observation is Dr. Stecevic, not Dr. Eisner. Viewed in the light most favorable to plaintiff, the

evidence supports several reasonable factual conclusions relevant to causation, including that

Mrs. Taylor had both an AVM that caused unchecked bleeding after it was biopsied, and a

bleeding diverticulum. Alternatively, based on evidence of record, a jury may reasonably

conclude that Dr. Stecevic incorrectly identified the bleeding he saw as emanating from a

diverticulum rather than from an AVM biopsy site. Multiple conflicts in the evidence give rise

to genuine issues of material fact regarding the cause of Taylor’s fatal bleed, precluding

summary disposition.

Defendants’ reliance on Badalamenti is misplaced, as the facts of that case differ in

critical ways from those presented here. In Badalamenti, 237 Mich App at 281, the plaintiff

claimed that the defendant cardiologist negligently failed to timely diagnose and treat the

plaintiff’s cardiogenic shock. The defendants asserted that the plaintiff did not have cardiogenic

shock, and that his injuries instead stemmed from an unexpected and rare reaction to a drug,

streptokinase. Id. at 282. The evidence relevant to whether the plaintiff had cardiogenic shock

included objective hemodynamic measurements obtained by technical devices: the patient’s

wedge pressure, cardiac index, and systolic blood pressure. These objective measurements did

not support that the plaintiff was in cardiogenic shock. Id. at 286-287. The plaintiff’s expert

witness, Dr. Wohlgelernter, conceded that these measurements were “contrary to a diagnosis of

cardiogenic shock.” Id. at 287. A cardiologist also performed an echocardiogram on the

plaintiff, a procedure that includes a physician’s interpretation of images on a screen. The

echocardiogram demonstrated that the plaintiff’s left ventricle was functioning in a nearly

normal manner. This evidence, too, supported that the plaintiff was not suffering from

cardiogenic shock. Id. Dr. Wohlgelernter agreed that the echocardiogram showed that the

heart’s left ventricle was functioning “fairly well . . . .” Id. at 288.

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Notwithstanding these concessions, Dr. Wohlgelernter maintained that the plaintiff had

cardiogenic shock. According to this Court’s opinion, he supported that belief only by

expressing “skepticism” of the results of the echocardiogram. Id. 287. This Court concluded:

Dr. Wohlgelernter had no reasonable basis in evidence to support his opinion that

plaintiff’s left ventricular heart wall function was significantly damaged on March

16, which he agreed was the pertinent time frame and the definitive component

for a diagnosis of cardiogenic shock. Rather, as he explained, he based his

opinion on his skepticism and disparagement of [the cardiologist’s

echocardiogram] findings. [Id. at 288.]

“Notably,” this Court added, “Dr. Wohlgelernter specifically acknowledged that on the basis of

the information in the record, a competent cardiologist might logically conclude that plaintiff did

not have cardiogenic shock, and he agreed that a reaction to streptokinase could not be ruled out

in this case.” Id. at 289.

Badalamenti is a fact-driven case and is easily distinguishable from this one. There,

evidence of causation rested largely on objective measurements obtained by machines rather than

eyewitness observations.3 The subjective component of the evidence—a physician’s

interpretation of the echocardiogram results—did involve a treating cardiologist’s impression of

what he saw. But Dr. Wohlgelernter agreed that the echocardiogram did not reflect “definite

evidence of major damage to plaintiff’s heart wall,” and supported that the plaintiff’s left

ventricular systolic function “was fairly well-preserved.” Id. at 288. Despite these concessions,

Dr. Wohlgelernter insisted that the plaintiff had cardiogenic shock, a conclusion he reached by

disparaging the cardiologist’s interpretation of the echocardiogram. Dr. Wohlgelernter offered

no explanation for how or why the cardiologist might have misinterpreted the echocardiogram.

Instead, Dr. Wohlgelernter simply stated that the cardiologist who performed the

echocardiogram was wrong about the ultimate conclusion.

Unlike the hemodynamic measurements that figured prominently in Badalamenti, the

evidence supporting that Taylor’s bleed came from a diverticulum rather than a biopsied AVM is

purely subjective—Dr. Stecevic’s interpretation of what he saw. The physician who performed

the biopsy—an eyewitness to that procedure—documented in the medical record and testified

that he biopsied an AVM. This evidence supplied the facts underpinning Dr. Eisner’s testimony.

Were we to apply Badalamenti in the manner urged by defendants, we might question whether

Dr. Stecevic should be permitted to testify that Dr. Sklar did not biopsy an AVM, as Dr.

Stecevic’s testimony contradicts that of an eyewitness to the procedure—Dr. Sklar. But doing so

would be error for the same reason that disallowing Dr. Eisner’s opinion is improper. Unlike in

Badalamenti, the experts in this case have formed their opinions based on facts of record, and

3

That is not to say that machines must be considered infallible as a matter of law. What if a

living, healthy-appearing patient’s temperature measured 115 degrees when taken by a

thermometer? It would be entirely proper, from an evidentiary perspective, for an expert witness

to question the accuracy of the thermometer. No such question regarding the technology was

raised in Badalamenti.

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have drawn reasonable inferences from the evidence. Their opinions are consistent with the facts

and the inferences, and are not grounded in mere speculation or baseless disdain for a contrary

conclusion.

Moreover, a powerful strain of precedent is in tension with defendants’ interpretation of

Badalamenti. In Strach v St John Hosp Corp, 160 Mich App 251, 271; 408 NW2d 441 (1987)

(citation omitted), a medical malpractice case, this Court declared that a jury could disregard a

physician’s unrebutted testimony, reasoning that “a jury may disbelieve the most positive

evidence even when it stands uncontradicted, and the judge cannot take from them their right of

judgment.” Two additional medical malpractice cases make the same point. In Ykimoff, 285

Mich App at 89-90, and Martin v Ledingham, 488 Mich 987, 987-988; 791 NW2d 122 (2010),

the defendant physicians testified that they would have acted in a certain manner if provided with

information about a patient’s condition. The Courts held that a jury was entitled to disbelieve the

physicians’ testimony, even though it was unrebutted by other evidence.

The dissent takes issue with my concurring opinion in Ykimoff, despite that I have neither

quoted from nor cited it in this opinion. The legal debate between the judges who decided

Ykimoff centered on the soundness of Martin v Ledingham, 282 Mich App 158; 774 NW2d 328

(2009), in which this Court took a position mirroring the dissent’s: that a medical malpractice

expert cannot contradict an “eyewitness” regarding facts critical to causation. The Supreme

Court resolved the debate by adopting the reasoning of my concurring opinion in Ykimoff rather

than the contrary views of Judges TALBOT and BANDSTRA, holding, “the treating physician’s

averment that he would have acted in a manner contrary to this standard of care presents a

question of fact and an issue of credibility for the jury to resolve.” Martin, 488 Mich at 988. In

Martin, the Supreme Court rejected the dissent’s remarkable proposition that a fact-finder is

duty-bound to accept an uncontroverted fact. A long line of caselaw buttresses the Supreme

Court’s Martin order. See Rickets v Froehlich, 218 Mich 459; 188 NW 426 (1922), Soule v

Grimshaw 266 Mich 117; 253 NW 237 (1934), and Debano-Griffin v Lake Co, 493 Mich 167;

828 NW2d 634 (2013), highlighting that when a witness’s credibility is at issue, summary

disposition is inappropriate.

Here, Dr. Eisner based his opinion that Taylor bled from a biopsied AVM on the

operative report signed by Dr. Sklar, and buttressed by Dr. Sklar’s deposition testimony that the

lesion he biopsied was an AVM. The evidence that Dr. Sklar biopsied an AVM is therefore

neither speculative nor conjectural. Dr. Eisner’s opinion that Dr. Sklar biopsied an AVM is well

grounded in the facts and not the product of mere “skepticism” or disparagement. Similarly, Dr.

Eisner’s opinion that Taylor’s bleeding was likely caused by the biopsied AVMs rests on

unchallenged scientific reasoning.

Dr. Stecevic’s testimony that a diverticulum was bleeding is subject to challenge for

precisely the same reason that a jury may disbelieve that Dr. Sklar biopsied an AVM. Both Drs.

Sklar and Stecevic testified to their perceptions of visual images; in other words, their opinions

about what they had seen. Both are subject to credibility challenges, Dr. Sklar as a defendant,

and Dr. Stecevic as a retained expert. Credibility aside, all evidence—even eyewitness

testimony—rests on a witness’s act of drawing an inference from a perception. Two people can

watch a car drive by and give widely divergent estimates of its speed. One might infer that the

car is speeding, while the other infers a legal rate of travel. Two physicians can view the same

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CT or MRI scan and render divergent opinions about what it reveals, one inferring an

abnormality and the other a normal structure. See Milam v State Farm Mut Auto Ins Co, 972 F2d

166, 170 (CA 7, 1992) (“All evidence is probabilistic, and therefore uncertain; eyewitness

testimony and other forms of ‘direct’ evidence have no categorical epistemological claim to

precedence over circumstantial or even explicitly statistical evidence.”).

Dr. Stecevic’s disagreement with Dr. Sklar about whether Taylor actually had an AVM

highlights the fundamental difference between this case and Badalamenti. Here, Dr. Stecevic

offered an opinion about what Dr. Sklar saw during the first colonoscopy, and what he himself

saw during the second. Dr. Stecevic observed an abnormality that he believed to be an actively

bleeding diverticulum. No objective evidence proves that the lesion was an actively bleeding

diverticulum. Similarly, no objective evidence of record proves that the lesions biopsied by Dr.

Sklar were AVM’s. Rather, both physicians expressed judgments about what they had seen

through a colonoscope. Their assessments of what they saw (in Dr. Stecevic’s case, under

bloody conditions that limited his examination) are not analogous to the unquestioned objective

evidence in Badalamenti proving that the plaintiff did not have cardiogenic shock. And in that

case the experts agreed about the interpretation of even the subjective component of the

evidence—the echocardiogram.

Here, defendants propose that Dr. Stecevic must be believed. That view flies in the face

of basic evidentiary principles. That the physicians involved in this case are professional

observers does not change the rule that their eyewitness testimony may be disbelieved by a jury.

In Woodin v Durfee, 46 Mich 424, 427; 9 NW 457 (1881), our Supreme Court reversed the grant

of a verdict directed by the trial court on the basis of “undisputed” evidence that “probably ought

to have satisfied any one . . . .” Writing for a unanimous Court, Justice Cooley explained that

despite the absence of any conflicting evidence, the jury “may disbelieve the most positive

evidence, even when it stands uncontradicted; and the judge cannot take from them their right of

judgment.” Id. Our Supreme Court again emphasized that a witness need not be believed in

Yonkus v McKay, 186 Mich 203, 210-211; 152 NW 1031 (1915), stating:

To hold that in all cases when a witness swears to a certain fact the court must

instruct the jury to accept that statement as proven, would be to establish a

dangerous rule. Witnesses sometimes are mistaken and sometimes unfortunately

are wilfully mendacious. The administration of justice does not require the

establishment of a rule which compels the jury to accept as absolute verity every

uncontradicted statement a witness may make.

See also Arndt v Grayewski, 279 Mich 224, 231; 271 NW 740 (1937) (holding that eyewitness

testimony “is not conclusive upon the court or a jury if the facts and circumstances of the case

are such as irresistibly lead the mind to a different conclusion”). The credibility of eyewitness

identification testimony is always a question of fact. People v Yost, 278 Mich App 341, 356; 749

NW2d 753 (2008). “In short, the jury is free to credit or discredit any testimony.” Kelly v

Builders Square, Inc, 465 Mich 29, 39; 632 NW2d 912 (2001).

Our Supreme Court recently acknowledged the authority of medical literature attesting

that a physician’s misperception of anatomy during surgery is a well-accepted phenomenon. See

Elher v Misra, 499 Mich 11, 15; 878 NW2d 790 (2016). Physicians may disagree regarding the

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interpretation of x-rays, see Sawka v Prokopowycz, 104 Mich App 829; 306 NW2d 354 (1981),

the conclusions to be drawn from objective and undisputed autopsy findings, see Robins v Garg,

276 Mich App 351; 741 NW2d 49 (2007), and the meaning of an EKG tracing, see Goldberg v

Horowitz, 901 NYS2d 95, 98; 73 AD3d 691 (2010). Dr. Stecevic’s perception that he saw a

bleeding diverticulum is precisely that, a perception. A jury may believe that the bleeding Dr.

Stecevic saw came from a diverticulum, or it may reject that testimony for the reasons expressed

by Dr. Eisner.4

This case is distinguishable from Badalamenti for a second reason. Unlike Dr.

Wohlgelernter, Dr. Eisner had a reasonable basis for calling into question the accuracy of Dr.

Stecevic’s perception that the bleeding was coming from a diverticulum. Here, the evidence

supported that (1) Dr. Stecevic’s view of Taylor’s colon likely was obscured by blood; (2) blood

emanating from a source other than a diverticulum may pool in a diverticulum and look like a

bleeding diverticulum, (3) diverticular bleeding is rare, and its presence in Mrs. Taylor was

coincidental to a procedure that carried a recognized risk of bleeding, and (4) if Dr. Stecevic had

successfully stopped the diverticular bleeding as he claimed to have done, Taylor would not have

continued to bleed so heavily that a total colectomy was required.5 Dr. Eisner’s opinion that a

negligently biopsied AVM caused Taylor’s death does not rest on “assumptions” contradicted by

“established facts.” Nor did Dr. Eisner support his opinions by merely disparaging Dr.

Stecevic’s “power of observation.” Dr. Eisner’s causation theory draws upon facts of record and

describes a logical sequence of cause and effect.

The dissent posits that because Dr. Stecevic “could not find an active bleed until he

reached the hepatic flexure,” Taylor was not “actively bleeding from the areas biopsied by Dr.

Sklar.” And if Taylor was not bleeding from those sites, the dissent reasons, plaintiff “cannot

establish that Dr. Sklar’s biopsies caused Taylor’s death.” Respectfully, the dissent’s position

reinforces the importance of viewing the evidence in the light most favorable to the nonmoving

party, and the need to treat Dr. Stecevic’s testimony like that of any other witness or eyewitness,

i.e., capable of being questioned as to its validity.

That Taylor died due to massive blood loss from her colon is not in dispute. Accepting

Dr. Stecevic’s claim that the biopsy sites were not bleeding during the colonoscopy and that he

successfully stopped the bleed from a diverticulum means that Taylor must have suffered yet

another spontaneous, “random” bleed in her colon. As conceptualized by the dissent, Dr.

Stecevic’s testimony offers no explanation for the source of the bleeding that caused Taylor’s

death. The only rational conclusion the dissent offers is that Taylor experienced a second,

entirely coincidental (and fatal) bleed in her colon.

4

Dr. Stecevic’s credibility may also be subject to question based on his status as a paid expert

for the defense.

5

Under defendants’ logic, Dr. Stecevic’s testimony that he successfully stopped Taylor’s

bleeding with the epinephrine injection would also have to be believed. This means that there

must have been another source of the bleeding that killed Taylor.

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There are obvious gaps in the dissent’s one-sided view of the evidence. Dr. Stecevic

admitted that Taylor had “massive bleeding” on admission to the hospital and that she bled

profusely after the second colonoscopy. He also conceded that the surgery to remove her colon

was performed because there “might have been other sources of bleeding.” Viewing the

evidence in Taylor’s favor, a jury would have reason to question Dr. Stecevic’s power of

observation. If Dr. Stecevic stopped the bleeding from the diverticulum, as he claimed, where

did the blood that killed Taylor originate? A jury could reasonably conclude that the “other

sources” of the continued, massive bleeding were the sites of the Dr. Sklar’s biopsies, as

according to Dr. Eisner, biopsying an AVM in a patient on Plavix causes bleeding. That Dr.

Stecevic claimed to have “discovered” only one source of bleeding in Taylor’s colon during his

colonoscopy does not rule out that there were more, given Dr. Stecevic’s admissions that his

examination was “limited due to [the] large amount of blood in the entire colon” and that he had

to end his procedure abruptly because Taylor’s blood pressure dropped.6

Questions of fact abound in this case. Accordingly, the circuit court did not err by

denying defendants’ motion for summary disposition.

We affirm and remand for further proceedings. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher

/s/ Cynthia Diane Stephens

6

In his operative note, Dr. Stecevic noted, “Blood entire examined colon.”

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