Experts’ Opinions Were Contradicted By Established Facts: The State of Michigan Court of Appeals, in an unpublished opinion dated November 3, 2022, held: “Because Dr. Bogdasarian’s and Dr. Hershon’s opinions concerning the decedent’s cause of death were contradicted by established facts, their testimony was unreliable and inadmissible. The trial court therefore did not abuse its discretion by impliedly concluding that it was proper to exclude their causation testimony.”
The Underlying Facts
In early September 2018, the 68-year-old decedent was admitted to Beaumont Hospital because of breathing difficulties. The decedent underwent a tracheostomy and was placed on a ventilator. On September 26, 2018, the decedent was transferred from Beaumont Hospital to SSH, which is a long-term acute care hospital. When the decedent arrived at SSH, he was no longer on a ventilator, but had a tracheostomy tube to assist him with breathing.
Dr. DeLeon, who is board-certified in pulmonary disease, oversaw the decedent’s care with respect to his tracheostomy tube. After the decedent showed improvement, Dr. DeLeon requested a consultation from an otolaryngologist concerning decannulation.
On October 26, 2018, Dr. Sherbin, a board-certified otolaryngologist, examined the decedent. Dr. Sherbin recommended the decedent be gradually decannulated. Specifically, Dr. Sherbin recommended the decedent’s size-six tracheotomy tube be reduced to a size-four tracheostomy tube. Dr. Sherbin also recommended the size-four tube be capped and the decedent be monitored before the tube was removed. The decedent’s tracheostomy tube was never reduced to a size four.
On the morning of October 29, 2018, a respiratory therapist discovered the decedent had removed his tracheostomy tube. The therapist noted the decedent’s vitals were stable and the decedent was able to “oxygenate” on his own. The therapist alerted Dr. DeLeon. After Dr. DeLeon examined the decedent, he decided not to recannulate him. Dr. DeLeon did not request an evaluation from an otolaryngologist. Rather, Dr. DeLeon decided it was appropriate to monitor
the decedent, whose vital signs and oxygen saturation levels remained stable throughout the day and early evening. However, late that night, the decedent was found unresponsive in his room and was unable to be resuscitated. An autopsy was not performed.
The personal representative of the decedent’s estate alleged in the subsequently filed Michigan medical malpractice lawsuit that Dr. Sherbin’s recommendation to decannulate the decedent amounted to medical negligence because the decedent had a narrowed airway. The personal representative further alleged that Dr. DeLeon committed malpractice by failing to recannulate the decedent or by failing to immediately obtain a consultation from an otolaryngologist on October 29, 2018.
The personal representative relied on the expert opinions of Dr. John Bogdasarian, who is board-certified in otolaryngology, and Dr. James Hershon, who is board-certified in pulmonary disease, who opined that the decedent died as a result of a pulmonary obstruction, which was caused by the decedent’s narrowed airway.
The defendants contended that the evidence did not support that the decedent died as a result of a pulmonary obstruction and that the testimony of Dr. Bogdasarian and Dr. Hershon was unreliable because their causation opinions conflicted with Dr. Sherbin’s personal observations of the decedent’s throat and vocal cords on October 26, 2018.
The Michigan Appellate Court held: “Dr. Bogdasarian’s and Dr. Hershon’s opinions are contradicted by established facts, i.e., Dr. Sherbin’s personal observations that the decedent’s vocal cords opened fully and the decedent was not suffering from epiglottic stenosis or vocal cord paralysis. Indeed, Dr. Bogdasarian acknowledged he could not challenge Dr. Sherbin’s personal observations. Importantly, an autopsy was not performed, and Dr. Sherbin was the only medical professional who viewed the decedent’s throat and vocal cords in the days before his death. Both Dr. Bogdasarian and Dr. Hershon acknowledged that the decedent could have died from other causes given his poor health. Because Dr. Bogdasarian’s and Dr. Hershon’s opinions concerning the decedent’s cause of death were contradicted by established facts, their testimony was unreliable and inadmissible. The trial court therefore did not abuse its discretion by impliedly concluding that it was proper to exclude their causation testimony.”
Danae Piscitello v. Michael Sherbin, D.O., No. 356861.
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