Victor Khzouz v. Stephen Mendelson Md ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
VICTOR KHZOUZ and AMAL KHZOUZ, UNPUBLISHED
March 13, 2018
Plaintiffs-Appellees,
v No. 333901
Wayne Circuit Court
STEPHEN MENDELSON, MD, and LC No. 14-009384-NH
MENDELSON ORTHOPEDICS, PC,
Defendants-Appellants.
Before: M. J. KELLY, P.J., and JANSEN and METER, JJ.
PER CURIAM.
In this medical malpractice case, defendants, Stephen Mendelson, M.D., and his practice,
Mendelson Orthopedics, P.C., appeal by leave granted1 the trial court’s order granting partial
summary disposition in favor of plaintiffs, and denying defendants’ motion in limine to preclude
certain expert testimony as scientifically unreliable. We reverse and remand for further
proceedings consistent with this opinion.
I. FACTUAL BACKGROUND
This case arises out of post-surgical treatment that plaintiff2 received from defendant Dr.
Mendelson, a board-certified orthopedic surgeon, following arthroscopic knee surgery in August
2012. During the procedure, Dr. Mendelson inserted a “pain pump” in plaintiff’s knee. The
parties dispute whether the pain pump was placed subcutaneously (i.e., under the skin) or
intraarticularly (i.e., within the joint). Anesthesia (called bupivacaine) from the pump apparently
managed plaintiff’s pain effectively following the surgery until the pump was removed. At that
point, however, plaintiff’s pain increased dramatically. A subsequent MRI revealed that plaintiff
had lost a significant amount of cartilage in his knee, and plaintiff eventually sought treatment
from a different physician.
1
Victor Khzouz v Stephen Mendelson MD, unpublished order of the Court of Appeals, entered
November 29, 2016 (Docket No. 333901).
2
References to plaintiff in the singular denote plaintiff Victor Khzouz.
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Plaintiff sued defendants for medical malpractice. He alleged that bupivacaine from the
pain pump had caused a condition called chondrolysis, causing the cartilage in plaintiff’s knee to
rapidly deteriorate. Plaintiff further alleged that Dr. Mendelson’s use of the pain pump fell
below the applicable standard of care.
During discovery, the parties deposed five experts. Defendants’ experts included Dr.
Mendelson, Dr. John Denzin, and Dr. Roland Brandt. Plaintiff’s included Dr. Harish Hosalkar
and Dr. George Pappas.
Following discovery, the parties filed motions that essentially attacked the other side’s
experts. Defendants filed a motion in limine seeking to preclude “unreliable” testimony of
plaintiff’s experts, while plaintiff filed a motion for partial summary disposition, arguing that
there was no genuine issue of material fact whether Dr. Mendelson breached the applicable
standard of care by inserting the pain pump. In support of their respective motions, the parties
presented several pieces of medical literature for the trial court’s consideration. The literature in
question concerns pain pumps used following arthroscopic shoulder surgery or intraarticularly,
and it does not squarely address subcutaneous placement of a bupivacaine pain pump following
arthroscopic knee surgery.
Ultimately, the trial court ruled in plaintiffs’ favor with regard to both their motion for
partial summary disposition and defendants’ motion in limine challenging the reliability (and
thus the admissibility) of the testimony of Dr. Pappas and Dr. Hosalkar. Plaintiffs sought and
were granted interlocutory review in this Court.
II. STANDARDS OF REVIEW
This Court reviews de novo a trial court’s decision regarding a motion for summary
disposition. Heaton v Benton Constr Co, 286 Mich. App. 528, 531; 780 NW2d 618 (2009). The
trial court granted plaintiffs partial summary disposition under MCR 2.116(C)(10).
A motion under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim.
Summary disposition is appropriate under MCR 2.116(C)(10) if there is no
genuine issue regarding any material fact and the moving party is entitled to
judgment as a matter of law. In reviewing a motion under MCR 2.116(C)(10),
this Court considers the pleadings, admissions, affidavits, and other relevant
documentary evidence of record in the light most favorable to the nonmoving
party to determine whether any genuine issue of material fact exists to warrant a
trial. A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which
reasonable minds might differ. [Zaher v Miotke, 300 Mich. App. 132, 139-140;
832 NW2d 266 (2013) (quotations marks and citations omitted).]
“Circumstantial evidence can be sufficient to establish a genuine issue of material fact, but mere
conjecture or speculation is insufficient.” McNeill-Marks v Midmichigan Med Ctr-Gratiot, 316
Mich. App. 1, 16; 891 NW2d 528 (2016). “This Court is liberal in finding genuine issues of
material fact.” Jimkoski v Shupe, 282 Mich. App. 1, 5; 763 NW2d 1 (2008).
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On the other hand, this Court reviews for an abuse of discretion the circuit court’s
Daubert3 determination (i.e., its decision whether to exclude expert evidence for lack of
scientific reliability). Elher v Misra, 499 Mich. 11, 21; 878 NW2d 790 (2016). “An abuse of
discretion occurs when the trial court chooses an outcome falling outside the range of principled
outcomes,” and “[t]he admission or exclusion of evidence because of an erroneous interpretation
of law is necessarily an abuse of discretion.” Id. “We review de novo questions of law
underlying evidentiary rulings, including the interpretation of statutes and court rules.” Id.
III. ANALYSIS
Defendants argue that the trial court erred in several distinct and yet closely interrelated
ways. They further argue that the trial court’s errors warrant reversal. We agree.
“In a medical malpractice case, the plaintiff bears the burden of proving (1) the
applicable standard of care, (2) a breach of that standard by the defendant, (3) an injury, and (4)
proximate causation between the alleged breach of duty and the injury.” Rock v Crocker, 499
Mich. 247, 255; 884 NW2d 227 (2016). At issue here are the first two elements, and as a general
rule, “[e]xpert testimony is required in medical malpractice cases to establish the applicable
standard of care and to demonstrate that the defendant somehow breached that standard.”
Birmingham v Vance, 204 Mich. App. 418, 421; 516 NW2d 95 (1994).4 A defendant physician
may be qualified to offer expert testimony, including expert testimony regarding the applicable
standard of care. Rice v Jaskolski, 412 Mich. 206, 212; 313 NW2d 893 (1981).
For these purposes, “a ‘specialty’ is a particular branch of medicine or surgery in which
one can potentially become board certified,” and “a ‘specialist’ is somebody who can potentially
become board certified.” Woodard v Custer, 476 Mich. 545, 561; 719 NW2d 842 (2006). Given
that Dr. Mendelson was board-certified in orthopedic surgery at the time he utilized the pain
pump at issue in this case, the parties agree that he qualifies as an orthopedic specialist.
Consequently, he is held to a different standard of care than a general practitioner. See MCL
600.2912a(1); Cox v Bd of Hosp Managers for City of Flint, 467 Mich. 1, 17 n 17; 651 NW2d
356 (2002). The applicable standard is enumerated by MCL 600.2912a(1), which provides, in
pertinent part:
[I]n an action alleging malpractice, the plaintiff has the burden of proving that in
light of the state of the art existing at the time of the alleged malpractice:
* * *
(b) The defendant, if a specialist, failed to provide the recognized standard
of practice or care within that specialty as reasonably applied in light of the
3
Daubert v Merrell Dow Pharm, Inc, 509 U.S. 579; 113 S. Ct. 2786; 125 L. Ed. 2d 469 (1993).
4
Such expert testimony is unnecessary “when the lack of professional care is so manifest that it
would be within the common knowledge and experience of the ordinary layman. . . .” Sullivan v
Russell, 417 Mich. 398, 407; 338 NW2d 181 (1983) (quotation marks and citation omitted).
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facilities available in the community or other facilities reasonably available under
the circumstances. . . .
Although this standard for specialists is sometimes referred to as a “national” standard of care,
see, e.g., Jalaba v Borovoy, 206 Mich. App. 17, 22; 520 NW2d 349 (1994), that is a misnomer,
Cox, 467 Mich. at 17 n 17. As explained in Cox:
The term “national,” . . . is not an accurate description of the statutory standard of
care for specialists. The plain language of subsection (b) states that the standard of
care is that “within that specialty as reasonably applied in light of the facilities
available in the community or other facilities reasonably available under the
circumstances.” Under the plain language of the statute, then, the standard of care
for both general practitioners and specialists refers to the community. [Id.
(citation omitted).]
Turning to the facts of this case, we agree with defendants that the trial court’s analysis
was erroneous in several fundamental ways. First, the trial court erred by failing to consider and
decide whether the challenged testimony of plaintiffs’ experts was substantively admissible
before considering it for purposes of summary disposition under MCR 2.116(C)(10). See MCR
2.116(G)(6); Maiden v Rozwood, 461 Mich. 109, 121; 597 NW2d 817 (1999) (“[t]he reviewing
court should evaluate a motion for summary disposition under MCR 2.116(C)(10) by
considering the substantively admissible evidence actually proffered”) (emphasis added). In
other words, the trial court was incorrect when it reasoned that its summary disposition ruling
rendered defendants’ Daubert motion “moot”. On the contrary, the substantive admissibility of
such testimony was a key part of the summary disposition analysis—one the trial court
neglected. Further, “a question is not moot if it will continue to affect a [party] in some
collateral way,” In re Dodge Estate, 162 Mich. App. 573, 584; 413 NW2d 449 (1987), and
defendants’ Daubert challenge had implications extending beyond summary disposition; as a
motion in limine, it was aimed at precluding admission of the challenged expert testimony at
trial.
Second, the trial court applied an incorrect legal standard to determine the applicable
standard of care, erroneously relying on the pertinent model jury instruction, M Civ JI 30.01,5
5
M Civ JI 30.01 provides:
When I use the words “professional negligence” or “malpractice” with respect to the
defendant’s conduct, I mean the failure to do something which a [ name profession ] of ordinary
learning, judgment or skill in [ this community or a similar one / [ name particular specialty ] ]
would do, or the doing of something which a [ name profession / name particular specialty ] of
ordinary learning, judgment or skill would not do, under the same or similar circumstances you
find to exist in this case.
It is for you to decide, based upon the evidence, what the ordinary [ name profession /
name particular specialty ] of ordinary learning, judgment or skill would do or would not do
under the same or similar circumstances.
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rather than the language of the statute that sets forth the applicable standard of care for
specialists, MCL 600.2912a(1). Although model jury instructions “are intended to accurately
state applicable law,” they do not constitute legal authority. Moore v City of Detroit, 252 Mich
App 384, 387; 652 NW2d 688 (2002) (emphasis added). Conversely, it is well-settled that MCL
600.2912a(1) does authoritatively “set[] forth the standards of care for general practitioners and
specialists.” Cox, 467 Mich. at 16. Therefore, when considering the applicable standard of care
for purposes of summary disposition, the trial court should have relied on the actual language of
MCL 600.2912a(1), not the model jury instruction’s attempt to paraphrase that statute for lay
jurors.
Third, the trial court erred by determining that it could not consider medical literature as
Daubert evidence. “Under MRE 702, it is generally not sufficient to simply point to an expert’s
experience and background to argue that the expert’s opinion is reliable and, therefore,
admissible.” Edry v Adelman, 486 Mich. 634, 642; 786 NW2d 567 (2010). “[T]he whole point
of Daubert is that experts can’t speculate. They need analytically sound bases for their opinions,
and it is axiomatic that an expert, no matter how good his credentials, is not permitted to
speculate.” Id. at 642 n 6 (quotation marks, citations, and brackets omitted). “[W]hile not
dispositive, a lack of supporting literature is an important factor in determining the admissibility
of expert witness testimony.” Id. at 640. Likewise, as our Supreme Court has explained several
times, pursuant to MCL 600.2955(1) a court must consider the peer-reviewed medical literature
cited by the parties when entertaining a Daubert challenge. Elher, 499 Mich. at 28. Scholarly
publications, peer-reviewed studies, and FDA publications are all “examples of objective and
verifiable evidence[.]” Krohn v Home-Owners Ins Co, 490 Mich. 145, 178; 802 NW2d 281
(2011). By holding otherwise, the trial court erred. And because its error in that regard formed
part of the foundation for its ruling concerning the reliability of the challenged testimony (i.e., its
admissibility under MRE 702 and MCL 600.2955(1)), the resulting ruling was “necessarily an
abuse of discretion.” See Elher, 499 Mich. at 21.
Nevertheless, the trial court’s several errors do not necessarily warrant reversal of its
ruling regarding summary disposition. “This Court will not reverse a trial court’s order of
summary disposition when the right result was reached for the wrong reason.” Forest Hills Coop
v City of Ann Arbor, 305 Mich. App. 572, 615; 854 NW2d 172 (2014). Accordingly, plenary de
novo review is required to determine whether the trial court ultimately reached the correct result.
A. SUBSTANTIVE ADMISSIBILITY OF THE CHALLENGED EXPERT TESTIMONY
As explained in Rock, 499 Mich. at 260, “[a] physician who testifies regarding the
standard of care at issue must satisfy the requirements of MCL 600.2169(1).” Pursuant to MCL
600.2169(2), when
determining the qualifications of an expert witness in an action alleging medical
malpractice, the court shall, at a minimum, evaluate all of the following:
(a) The educational and professional training of the expert witness.
(b) The area of specialization of the expert witness.
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(c) The length of time the expert witness has been engaged in the active
clinical practice or instruction of the health profession or the specialty.
(d) The relevancy of the expert witness’s testimony.
In the instant case, we agree with defendants that the trial court erred by considering Dr.
Pappas’s standard-of-care testimony for purposes of summary disposition. Under MCL
600.2169(1)(a), an expert witness may only offer testimony regarding the applicable standard of
care for a specialist if the proposed expert was board-certified in the same specialty “at the time
of the occurrence that is the basis for the claim or action.” Rock, 499 Mich. at 262. Aside from
Dr. Pappas’s deposition transcript, plaintiffs cite no evidence regarding his qualifications as an
expert. Although Dr. Pappas discussed orthopedic surgery at length during his deposition, he
was neither asked nor did he testify whether he was board-certified in orthopedics or any other
specialty, let alone whether he was board-certified at the time the surgery in this case was
performed. Accordingly, plaintiffs failed to establish that Dr. Pappas’s testimony concerning the
applicable standard of care in this matter was substantively admissible, and it thus cannot be
considered for purposes of this analysis.
However we disagree with defendants’ contention that the trial court erred by considering
Dr. Hosalkar’s standard-of-care testimony for purposes of MCR 2.116(C)(10). To begin with,
plaintiffs produced substantively admissible evidence establishing that Dr. Hosalkar was
qualified under MCL 600.2169(1). Specifically, they produced his deposition testimony that he
was board-certified in orthopedic surgery on the date in question and had devoted a majority of
his professional time to the clinical practice of orthopedic surgery in the year preceding
plaintiff’s surgery, practicing “mainly” orthopedics during that timeframe.
Furthermore, on this record we cannot conclude that Dr. Hosalkar’s testimony was
substantively inadmissible under Daubert. In concert, MRE 702 and MCL 600.2955(1) “govern
the inquiry into whether expert evidence is scientifically reliable.” Chapin v A & L Parts, Inc,
274 Mich. App. 122, 127; 732 NW2d 578 (2007). 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.
On the other hand, MCL 600.2955(1) provides, in pertinent part:
In an action . . . for injury to a person . . . , 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:
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(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.
(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.
“[A]ll the factors in MCL 600.2955 may not be relevant in every case.” Elher, 499 Mich. at 27.
Additionally, “the trial court’s role as gatekeeper does not require it to search for absolute truth,
to admit only uncontested evidence, or to resolve genuine scientific disputes.” Chapin, 274
Mich. App. at 127. Rather, an expert opinion may be reliable even if it “is not shared by all others
in the field or . . . there exists some conflicting evidence supporting and opposing the opinion[.]”
Id. Put differently, “as long as the opinion is rationally derived from a sound foundation,” it is
admissible. Id. “Gaps or weaknesses in the witness’ expertise are a fit subject for cross-
examination, and go to the weight of his testimony, not its admissibility.” Wischmeyer v Schanz,
449 Mich. 469, 480; 536 NW2d 760 (1995).
At root, defendants’ argument is that because there is no medical literature directly
supporting Dr. Hosalkar’s opinion, it is unreliable and thus inadmissible. The parties spend a
great deal of their respective briefs debating the substance of the medical literature, with both
sides inexorably concluding that such literature supports their position. This ignores the fact that
every expert deposed in this case opined that there was no authoritative medical literature that is
directly on point. Moreover, defendants ignore the fact that while a lack of supporting literature
“is an important factor,” it is not dispositive. See Elher, 499 Mich. at 23. In this case, given the
experts’ consensus that no authoritative literature exists in support of either side’s position,
plaintiffs cannot be faulted for failing to produce such literature.
Also, we disagree with defendants’ assertion that the cited medical literature does not
offer any support for Dr. Hosalkar’s standard-of-care testimony. Collectively, such literature
establishes that, beginning in at least 2009, there was a growing concern within the orthopedic
community that the intraarticular use of bupivacaine pain pumps was unsafe. Although such
literature may not directly support every aspect of Dr. Hosalkar’s standard-of-care testimony, it
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lends credence to his opinion that, at the time in question here, the use of a bupivacaine pain
pump following arthroscopic knee surgery—whether intraarticularly or subcutaneously—fell
below the recognized standard of practice or care for board-certified orthopedic surgeons. At a
minimum, the literature shows that Dr. Hosalkar’s opinion was rooted in hard science, not
merely speculation about effects that bupivacaine might have.
In sum, we discern no reason that Dr. Hosalkar’s standard-of-care testimony would be
inadmissible at trial. Hence, it is substantively admissible, and it may be considered for purposes
of our ensuing summary disposition analysis.
B. SUMMARY DISPOSITION UNDER MCR 2.116(C)(10)
Considering all of the substantively admissible record evidence in the light most
favorable to defendants, as the nonmoving parties, we conclude that partial summary disposition
in plaintiffs’ favor is unwarranted. Several genuine issues of material fact remain with regard to
the applicable standard of care and whether Dr. Mendelson breached it.
Indeed, in their brief on appeal, plaintiffs inadvertently acknowledge one such genuine
issue of material fact, asserting that “there is a question of fact as to whether the pain pump at
issue was placed intra-articularly or subcutaneously.” Plaintiffs are correct. Although Dr.
Mendelson testified unequivocally that the pain pump was placed subcutaneously, and that he
had “never inserted a pain pump intraarticularly,” there is circumstantial evidence suggesting
that his testimony in that regard might be either mistaken or intentionally false. (Emphasis
added.) From such evidence, and in light of the evidence that it was widely known that
intraarticular placement of a pain pump was associated with chondrolysis, a rational juror could
infer that Dr. Mendelson’s testimony regarding the placement of the pain pump was either
mistaken or intentionally false. Hence, a genuine issue of material fact remains whether the
pump was placed intraarticularly or subcutaneously.
Additionally, as several of the expert witnesses noted, even assuming that the pain pump
was placed subcutaneously, there is a dearth of evidence about where, exactly, it was placed
under plaintiff’s skin. Accordingly, there is no evidence of how proximate the pain pump was to
the site of plaintiff’s arthroscopy. Consequently, there are at least two issues of fact with regard
to where the pain pump was placed, and those factual disputes are decidedly material. Without a
factual determination of what Dr. Mendelson actually did, and how he did it, it cannot be
determined whether his conduct violated the applicable standard of care.
Finally, and contrary to the trial court’s conclusion, there is a genuine dispute regarding
the applicable standard of care. Dr. Mendelson opined that based on the existing literature when
plaintiff’s surgery was performed in 2012, it would not have been a violation of the standard of
care for an orthopedic surgeon to place a bupivacaine pain pump intraarticularly following knee
arthroscopy. Likewise, Dr. Denzin expressed the opinion that whether the intraarticular use of a
Bupivacaine pain pump constituted a deviation from the standard of care at that time depended
on the unique circumstances of the given case, noting that doing so might have been appropriate
“if there was some reason to think that [plaintiff’s] pain problem would have been excessive[.]”
Dr. Denzin further testified that although subcutaneous placement of a pain pump following
arthroscopic surgery is unnecessary “most of the time,” every patient is unique. From such
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testimony, a reasonable juror could conclude that either intraarticular or subcutaneous placement
of a bupivacaine pain pump accorded with the applicable standard of care under the
circumstances of this case.
We recognize that both Dr. Mendelson and Dr. Denzin made other statements that are
arguably inconsistent with their standard-of-care testimony, and Dr. Hosalkar vigorously
disagreed with their opinions. But “doubts pertaining to credibility, or an opposing party’s
disagreement with an expert’s opinion or interpretation of facts, present issues regarding the
weight to be given the testimony, and not its admissibility.” Surman v Surman, 277 Mich. App.
287, 309; 745 NW2d 802 (2007). “The extent of a witness’s expertise is usually for the jury to
decide.” Id. Accordingly, for these purposes, it is improper to gauge the credibility of the expert
witnesses. See Bank of America, NA v Fidelity Nat’l Title Ins Co, 316 Mich. App. 480, 512; 892
NW2d 467 (2016) (“A trial court may not weigh evidence when ruling on a summary disposition
motion, or make credibility determinations.”) (citations omitted). Given the conflicting
testimony from qualified experts in this case, it must be left for the trier of fact to decide which
expert or experts to believe.
We reverse and remand for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Michael J. Kelly
/s/ Kathleen Jansen
/s/ Patrick M. Meter
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