Michigan Appellate Court Rules Pain Management Specialist Not Qualified To Testify Against Anesthesiologist

In its unpublished opinion dated November 4, 2021, the State of Michigan Court of Appeals (“Michigan Appellate Court”) held that “the trial court erred by failing to strike plaintiff’s expert witness, Dr. Savala, as he was not qualified to give standard-of-care testimony against Dr. Toshniwal. On remand, plaintiff may file a motion for permission to amend his witness list.”

The Underlying Facts

The plaintiff had just undergone knee surgery, which was performed under general anesthesia. After the operation, the opioids given to him were not effectively managing his pain. Dr. Toshniwal testified that he discussed with the plaintiff, his significant other, and the surgeon various alternatives to help the plaintiff manage the pain, and then performed an adductor canal block procedure, which is an analgesic sensory nerve block injected into the adductor canal of the thigh.

The plaintiff did not claim that Dr. Toshniwal performed the procedure improperly. Rather, he claimed that Dr. Toshniwal should not have performed the procedure at all. He alleged in his complaint that he “clearly and specifically informed all Defendants that he did not want any spinal or regional blocks for post-operative pain control.” He feared the potential side effects experienced by one of his friends.

After Dr. Toshniwal performed the procedure, the plaintiff experienced severe left femoral neuropathy, resulting in his lawsuit alleging a lack of informed consent. The defendants claimed that because Dr. Toshniwal performed the nerve block during the perioperative period in order to treat acute pain, it falls under the domain of anesthesiology. Pain medicine, according to the defendants, focuses on acute chronic pain, not acute perioperative pain. In contrast, the plaintiff argued that the treatment at issue involved a pain management procedure; it did not entail the use of anesthesia, so it falls under the umbrella of pain medicine, not anesthesiology. Moreover, the plaintiff pointed out that the case involved a dispute over informed consent, not the performance of the procedure itself, so under either specialty, the standard of care is the same.

In their appeal, the defendants, Gokul Toshniwal, M.D. and Anesthesia Associates of Ann Arbor PLLC, requested the Michigan Appellate Court to overturn the trial court’s order denying their motion to strike plaintiff Travis Strasser’s expert witness. Defendant Dr. Toshniwal is board certified in anesthesiology as well as the subspecialty of pain medicine. Likewise, the plaintiff’s expert, Robert Savala, M.D., is board certified in anesthesiology as well as the subspecialty of pain medicine. The parties disagreed which of those two specialties Dr. Toshniwal was performing at the time of the alleged malpractice for purposes of assessing whether Dr. Savala meets the requirements of MCL 600.2169(1).

Michigan Appellate Court Opinion

The Michigan Appellate Court held: “There can be no reasonable dispute that the only reason Dr. Toshniwal placed or performed the adductor canal block was to control plaintiff’s pain and that plaintiff’s lawsuit concerned whether legally-sound informed consent was obtained with respect to that particular medical procedure. Therefore, at first glance, it would appear that the one most relevant specialty was pain medicine, which was essentially the exclusive focus of Dr. Savala’s practice. But this case requires closer and deeper inspection. Although a pain-medicine procedure was used, the particular nerve block Dr. Toshniwal employed is most commonly used by anesthesiologists in connection with surgeries. Indeed, pain-medicine specialist Dr. Savala acknowledged that he had not performed a femoral nerve block in at least 12 years because “operating room anesthesiologists are typically the ones that are providing those services.” While such regional nerve blocks are typically placed preoperatively, anesthesiologists occasionally perform them postoperatively. When the procedure to control plaintiff’s pain is viewed within the context of the underlying surgery, it becomes evident that the one most relevant specialty is anesthesiology and not pain medicine. Moreover, during the year immediately preceding the date of the alleged medical malpractice, Dr. Savala had not devoted the majority of his professional time to either the active clinical practice of anesthesiology or to the instruction of students in anesthesiology.”

“Furthermore, plaintiff’s medical malpractice action encompassed not only the events that took place after the surgery on his fractured patella and immediately before the nerve block was performed, but also events that occurred before the surgery when plaintiff allegedly stated his desire for no regional nerve blocks. The postoperative nerve block cannot be viewed in isolation or in a vacuum given the nature of plaintiff’s lawsuit; rather, all of the circumstances surrounding the surgery must be considered, and it was the practice of anesthesiology and not pain medicine that was the relevant specialty when the circumstances are viewed more broadly, as is appropriate in this case.”

Source Strasser v. Oakwood Heritage Hospital, No. 355496.

If you or a loved one may have been injured (or worse) as a result of medical malpractice in Michigan or in another U.S. state, you should promptly find a Michigan medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you or your loved one in a medical negligence case, if appropriate.

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This entry was posted on Thursday, December 16th, 2021 at 5:24 am. Both comments and pings are currently closed.


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