September 20, 2020

The State of Michigan Court of Appeals (“Michigan Appellate Court”), in its unpublished opinion dated August 13, 2020, affirmed that the plaintiff failed to establish in her Michigan medical malpractice case that her primary care physician’s failure to contact an OB/GYN that the plaintiff was scheduled to see for her first prenatal visit weeks later was the cause of her subsequent loss of both fallopian tubes and the resulting inability to become pregnant in the future.

The plaintiff’s causation expert testified that a reasonably prudent OB/GYN, upon receiving a telephone call from the plaintiff’s primary care physician that was never made but the expert testified was required to be made, would have seen the plaintiff either May 19, 2015 or May 20, 2015, and not waited until the scheduled June 9, 2015 appointment. The expert testified that at the earlier visit, an OB/GYN would have taken the plaintiff’s history, conducted a very gentle physical examination, and would have ordered an ultrasound. The expert further testified that with better than 90% certainty, an ultrasound conducted on May 19, 2015 or May 20, 2015 would have shown an empty uterus. Even though the ultrasound may or may not have shown the ectopic pregnancy, at that time an OB/GYN would have been “highly suspicious” of an ectopic pregnancy because if a pregnant patient’s beta hCG is “2,000 or higher, that is an ectopic pregnancy until proven otherwise.” The expert testified that if the patient was hemodynamically stable, an OB/GYN would have asked for the patient’s consent to administer methotrexate, which would have resolved the ectopic pregnancy before the patient’s fallopian tube ruptured.

The plaintiff averred in an affidavit that if she was “offered Methotrexate as treatment to resolve my ectopic pregnancy, [she] would have consent to receiving it, over risking the rupture and loss of my fallopian tube.”

The Michigan Appellate Court stated that the plaintiff’s expert’s causation testimony centered on what a reasonably prudent OB/GYN would have done if the primary care physician had called on May 19, 2015 but conceded that he had no knowledge of what the OB/GYN would have done if he had seen the plaintiff on May 19, 2015. The Michigan Appellate Court stated that the expert speculated that the OB/GYN would have seen the plaintiff earlier in an emergency situation, “[h]owever, the record is devoid of anything to suggest that if [the primary care physician] called [the OB/GYN’s] office on May 19, 2015, [the OB/GYN] would have agreed to see [the plaintiff] earlier. Nor is there anything in the record suggesting that [the OB/GYN] would have taken the course outlined above by [the plaintiff’s expert].”

The Michigan Appellate Court held: “In order to establish cause-in-fact, a plaintiff cannot simply present evidence that the defendant “may have caused his injuries” … “[M]ore than a mere possibility or plausible explanation is needed” … Thus, the plaintiff must set forth “specific facts that would support a reasonable inference of a logical sequence of cause and effect” … Here, in the absence of testimony regarding what [the OB/GYN] would have done if he had been called by [the primary care physician] on May 19, 2015, an essential link in the logical sequence of cause and effect is missing from [the plaintiff’s] case. Without it, the jury may only speculate on what would have happened if [the OB/GYN] had been contacted. Because speculation as to causation is not permitted, summary disposition was warranted in this case.”

Source Clifton v. Bahu, No. 348794.

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