August 16, 2019

In its published opinion filed on July 25, 2019, the State of Michigan Court of Appeals (“Michigan Appellate Court”) ruled that the circuit court did not err by denying the defendants’ motion for summary disposition in a Michigan medical malpractice case where the defendant gastroenterologist performed a colonoscopy on a patient who later bled to death because “[g]iven [the defendant’s] testimony that he biopsied AVMs and [the plaintiff’s expert’s] reasonable explanation that the biopsy of the AVMs likely caused [the patient’s] hemorrhage, [the defendant’s expert’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 this rule.”

The Underlying Facts

During the colonoscopy performed by the defendant gastroenterologist, he observed lesions in the decedent’s colon that he believed were arteriovenous malformations (AVMs). The defendant biopsied the suspected AVMs. Three days later, the decedent developed colorectal bleeding. Despite the emergent removal of her entire colon, the decedent died.

The Michigan medical malpractice plaintiff alleged that the defendant breached the standard of care by biopsying the AVMs, particularly since the decedent had recently taken Plavix, a blood thinner, and was a devout Jehovah’s Witness who refused blood transfusions. The plaintiff’s expert witness testified that the improper and unindicated biopsies caused the bleeding that ultimately led to the decedent’s death.

The defendant’s expert witness, who had performed an emergent colonoscopy on the decedent the day before she died to find the source of the bleeding, testified that the bleeding originated at the site of a ruptured diverticulum that he believed was wholly incidental to the biopsies and was a random event.

The defendant repeatedly confirmed during his deposition that he biopsied “a vascular lesion” (an AVM is an abnormal collection of coalesced blood vessels). The defendant’s records do not support that he biopsied a diverticulum, and he did not report any diverticular bleeding.

The defendant’s expert, who performed the subsequent colonoscopy, testified that he did not see any AVMs during his examination of the decedent’s colon and asserted that there were none. According to the defendant’s expert, the defendant had not biopsied an AVM, despite his records and testimony that he did.

The defendants asserted that their expert’s testimony must be believed and therefore they were entitled to the entry of summary disposition in their favor. The trial court denied summary disposition, stating “Plaintiff has produced sufficient expert witness testimony to establish a question of fact regarding whether Defendant negligently performed biopsies that caused the fatal bleed,” and the defendants appealed.

Michigan Appellate Court Opinion

The Michigan Appellate Court stated: “[The plaintiff’s expert] drew a reasonable inference that a biopsied AVM is likely to bleed profusely, particularly when a patient has recently taken a blood thinner. Given [the defendant’s expert’s] admission at deposition that there may have been multiple bleeding sources in [the decedent’s] colon, his claim that [the decedent’s] colon contained no AVMs at all, and his subjective judgment that he found a bleeding diverticulum create a fact question regarding the source of [the decedent’s] fatal bleed.”

The Michigan Appellate Court stated: “the evidence supporting that [the decedent’s] bleed came from a diverticulum rather than a biopsied AVM is purely subjective—[the defendant’s expert’s] interpretation of what he saw. The physician who performed the biopsy [the defendant]—an eyewitness to that procedure—documented in the medical record and testified that he biopsied an AVM.”

“[The plaintiff’s expert] based his opinion that [the decedent] bled from a biopsied AVM on the operative report signed by [the defendant], and buttressed by [the defendant’s] deposition testimony that the lesion he biopsied was an AVM. The evidence that [the defendant] biopsied an AVM is therefore neither speculative nor conjectural. [The plaintiff’s expert’s] opinion that [the defendant] biopsied an AVM is well grounded in the facts and not the product of mere “skepticism” or disparagement. Similarly, [the plaintiff’s expert’s] opinion that [the decedent’s] bleeding was likely caused by the biopsied AVMs rests on unchallenged scientific reasoning. [The defendant’s expert’s] testimony that a diverticulum was bleeding is subject to challenge for precisely the same reason that a jury may disbelieve that [the defendant] biopsied an AVM. Both [the defendant and his expert] testified to their perceptions of visual images; in other words, their opinions about what they had seen. Both are subject to credibility challenges, [the defendant] as a defendant, and [the defendant’s expert] as a retained expert.”

“That [the defendant’s expert] claimed to have “discovered” only one source of bleeding in [the decedent’s] colon during his colonoscopy does not rule out that there were more, given [the defendant’s expert’s] admissions that his examination was “limited due to [the] large amount of blood in the entire colon” and that he had to end his procedure abruptly because [the decedent’s] blood pressure dropped.”

The Michigan Appellate Court ruled: “Multiple conflicts in the evidence give rise to genuine issues of material fact regarding the cause of [the decedent’] fatal bleed, precluding summary disposition … That the physicians involved in this case are professional observers does not change the rule that their eyewitness testimony may be disbelieved by a jury.”

Source Estate of Effie Taylor v. University Physician Group, No. 338801.

If you or a loved one suffered harm as a result of a colonoscopy 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 colonoscopy negligence claim for you and represent you in a colonoscopy medical malpractice case, if appropriate.

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