ESTATE OF EFFIE TAYLOR, by ORAS TAYLOR, Personal Representative, Plaintiff-Appellee,
UNIVERSITY PHYSICIAN GROUP, LEGACY 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.
OPINION IS UNCORRECTED AND SUBJECT TO REVISION BEFORE FINAL
PUBLICATION IN THE MICHIGAN COURT OF APPEALS REPORTS.
Oakland Circuit Court. LC No. 2015-147003-NH.
TAYLOR ORAS PERSONAL REPRESENTATIVE, Plaintiff-Appellee: MARK
FRANKLIN MEDICAL CONSULTANTS PC, MANUEL SKLAR,
Defendants-Appellants: ANITA COMORSKI.
SHGD LEGACY, VHS SINAI GRACE HOSPITAL INC, TENET HEALTHCARE
CORPORATION, VHS OF MICHIGAN INC, VHS PHYSICIANS OF MICHIGAN,
DMC LAHSER AMBULATORY, DMC LAHSER CAMPUS, Defendants: ANITA
Before: GLEICHER, P.J., and STEPHENS and O'BRIEN, JJ.
O'BRIEN, J. (dissenting).
Mich.App. 270] Elizabeth L. Gleicher, P.J.
medical malpractice case arises from a colonoscopy performed
by defendant Manuel [329 Mich.App. 271] 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.
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 that the improper and unindicated biopsies
caused the bleeding that ultimately led to Taylor's
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.
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 [329 Mich.App. 272] believe or disbelieve the
witness's account. That the eyewitness is a physician
does not defeat this rule.
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."
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
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. [329 Mich.App. 273] 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].
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."
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 ...