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.
Oakland Circuit Court LC No. 2015-147003-NH
Before: Gleicher, P.J., and Stephens and O'Brien, JJ.
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.
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 death.
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 believe or disbelieve the witness's
account. That the eyewitness is a physician does not defeat
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
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. 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
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.
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
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
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 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
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