v No Genesee Circuit Court GENESYS REGIONAL MEDICAL CENTER and LC No NH THOMAS ROGERS, PA-C,

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1 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S ESTATE OF TERI RAY LUTEN, by JOSEPH LUTEN, JR., Personal Representative, UNPUBLISHED May 3, 2018 Plaintiff-Appellee, v No Genesee Circuit Court GENESYS REGIONAL MEDICAL CENTER and LC No NH THOMAS ROGERS, PA-C, and Defendants-Appellants, GENERAL SURGEONS OF FLINT, PC and BRIAN SHAPIRO, M.D., Defendants. Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ. PER CURIAM. In this interlocutory appeal, defendants Genesys Regional Medical Center (GRMC) and Thomas Rogers, PA-C (Rogers) (collectively defendants), appeal by leave granted 1 the trial court s order denying their motion for summary disposition. 2 We reverse and remand for entry of summary disposition in favor of defendants on the issue of proximate cause only. 1 Estate of Teri Ray Luten v Genesys Regional Med Ctr, unpublished order of the Court of Appeals, entered March 9, 2017 (Docket No ). 2 GRMC filed three motions for summary disposition in this matter, one of which was filed jointly with Rogers and related to the issue of proximate cause. Leave to appeal was only granted regarding the order denying the joint motion for summary disposition. See Estate of Teri Ray Luten v Genesys Regional Med Ctr, unpublished order of the Court of Appeals, entered March 9, 2017 (Docket No ). Leave to appeal the order denying summary disposition related to codefendant Dr. Brian Shapiro and the issue of agency was denied. Id. -1-

2 I. PERTINENT FACTS AND PROCEDURAL HISTORY This medical malpractice action arose out of plaintiff s decedent 3 Teri Ray Luten s gallbladder removal surgery. Dr. Brian Shapiro performed a laparoscopic cholecystectomy on Luten on January 7, 2011; she was discharged from GRMC the same day. Luten returned to the GRMC emergency room 4 days later, complaining of abdominal pain and dizziness. She was anemic and required a blood transfusion. Luten was examined by Dr. Shapiro, as well as Rogers, a physician s assistant. Dr. Shapiro recommended an exploratory laparoscopy. Dr. Shapiro performed the surgery on January 13, 2011, assisted by Rogers. During the procedure, bile was discovered entering Luten s abdominal cavity, so the procedure was converted to an open laparotomy. Dr. Shapiro performed a washout procedure to remove the bile. Luten was discharged from GRMC on January 16, 2011 with two surgical drains in her abdomen. Luten returned to the GRMC emergency room on January 19, 2011 with abdominal pain. She was again anemic and had an elevated white blood cell count. A CT scan revealed bile around Luten s liver, spleen, and gallbladder. On January 20, 2011, an endoscopic retrograde cholangiopancreatography (ERCP) and a esophagogastroduodenoscopy (a surgical procedure) were performed by Dr. Justin Miller. Dr. Miller had to abort the procedure after discovering that Luten s hepatic duct was damaged. Luten later alleged that the duct had been clipped and injured during Dr. Shapiro s removal of her gallbladder. Luten required surgery to repair the duct. She suffered numerous complications that rendered surgery difficult and was ultimately hospitalized until March 28, She was also admitted to the hospital several more times in April, May, and June Luten filed suit in 2013 against defendants as well as Dr. Shapiro and General Surgeons of Flint, PC. Relevant to this appeal, the complaint alleged that Rogers had a duty to perform a postoperative examination of Luten and diagnose her with a bile leak, and that Rogers had failed to consult a gastroenterologist or perform an ERCP, which resulted in a delay in diagnosing the hepatic duct injury and a delay in appropriate treatment. The complaint alleged that Rogers had violated the applicable standard of care of a physician s assistant with regard to Luten, and asserted that his violations were a proximate cause of Luten s injuries. Relevant to this appeal, defendants third motion for summary disposition argued that no genuine issue of material fact existed regarding whether Rogers s actions were a proximate cause of Luten s injuries. Defendants argued that it was undisputed that Rogers, as a physician s assistant, did not manage or dictate Luten s care, that there was no evidence that a discussion between Rogers and Dr. Shapiro regarding a GI consultation or ERCP would have prevented Luten s injuries, and that there was no causal link between Rogers s failure to document his discussion with Dr. Shapiro regarding Luten s injuries. The trial court denied defendants motion for summary disposition, stating only with regard to Rogers: There is in my view a fact question as to the performance of the physician s 3 Luten passed away on March 19, The lower court record does not indicate whether her death was a result of her injuries that are the subject of this medical malpractice action. -2-

3 assistant. This appeal followed, limited to the issue of the trial court s denial of summary disposition to Rogers. This Court granted defendants motion to stay the trial court proceedings pending appeal. 4 II. STANDARD OF REVIEW We review de novo a trial court s decision regarding a motion for summary disposition. Gorman v American Honda Motor Co, Inc, 302 Mich App 113, 115; 839 NW2d 223 (2013). A motion for summary disposition under MCR 2.116(C)(10) challenges the factual sufficiency of a plaintiff s claim. Id. The trial court must consider the evidence in the light most favorable to the nonmoving party. Id. Summary disposition is proper 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. Id. at 116 (citation omitted). There is a genuine issue of material fact when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ. Id. (citation omitted). In reviewing the trial court s decision, we review only the evidence that was presented at the time the trial court made its decision on the motion. Id. at 120. III. ANALYSIS Defendants argue that no genuine issue of material fact existed regarding the lack of proximate causation between Rogers s rendering of care as a physician s assistant and Luten s injuries, and that the trial court therefore erred by denying defendants motion for summary disposition. We agree. To establish a claim for medical malpractice, the plaintiff must establish: (1) the appropriate standard of care governing the defendant s conduct at the time of the purported negligence, (2) that the defendant breached that standard of care, (3) that the plaintiff was injured, and (4) that the plaintiff s injuries were the proximate result of the defendant s breach of the applicable standard of care. Kalaj v Khan, 295 Mich App 420, 429; 820 NW2d 223 (2012). See also MCL a. The plaintiff must provide expert testimony to establish the standard of care, any breaches thereof, and causation. Kalaj, 295 Mich App at 429. There must be facts in evidence to support expert witness testimony; however, circumstantial evidence enabling reasonable inferences is also sufficient. Id. Defendants motion did not relate to the standard of care that applies to Rogers, the alleged breaches of that standard by Rogers, or Luten s injury. Rather, defendants argued in the lower court, and now argue on appeal, that there was no proximate cause between Rogers s alleged breaches of the standard of care for a physician s assistant and Luten s injuries. 4 Estate of Teri Ray Luten v Genesys Regional Med Ctr, unpublished order of the Court of Appeals, entered May 26, 2017 (Docket No ). -3-

4 An affidavit of meritorious defense authored by Rogers was filed by defendants on October 24, In the affidavit, Rogers asserted that he had complied with the standard of care regarding Luten: Specifically, I appropriately diagnosed, addressed[,] and treated [Luten] post[]operatively on January 11, 2011, as [Luten] presented to the [GRMC emergency room] with chief complaint of abdominal pain. A hepatobiliary iminiodiacetic acid (HIDA) scan was performed. I assisted Dr. Shapiro in an exploratory laparoscopy on January 13, The laparoscopy was conducted within the standard of care. Post[]operatively, I noted that the patient was improving and discharged the patient. Plaintiff s standard of care expert, Craig A. Baumgartner, PA-C, testified regarding the standard of care applicable to a physician s assistant, and to his opinion that Rogers s breach of that standard was established by the absence of any documentation showing that Rogers had discussed or recommended a gastroenterology (GI) consult or recommended that Dr. Shapiro perform an ERCP after Luten s HIDA scan indicated a bile leak on January 11, Baumgartner further opined that a GI consultation or ERCP could have identified the location of the leak and that, had Dr. Shapiro rejected Rogers s suggestions, it would have been prudent for Rogers to have documented it. Baumgartner theorized that had Rogers noted that Dr. Shapiro had rejected his suggestions in Luten s medical record, someone else may have seen it and wondered why Dr. Shapiro had not ordered an ERCP, thus causing an ERCP to be ordered sooner and allowing her bile leak to be fixed earlier. Baumgartner also opined that Rogers had failed to provide thorough discharge instructions to Luten regarding the ongoing issues that she could expect concerning her bile leak. Because defendants only challenge the fourth element required to establish a claim of medical malpractice, the issue before this court is whether Rogers s alleged failure to discuss and document a discussion with Dr. Shapiro regarding a GI consultation or ERCP, and to provide information regarding the bile leak in Luten s discharge papers, were a proximate cause of Luten s injuries. Kalaj, 295 Mich App at 429. We conclude that plaintiff has not demonstrated a genuine issue of material fact related to this element. Gorman, 302 Mich App at 115. Plaintiff must establish the proximate cause element of medical malpractice by a preponderance of the evidence in order to make out a prima facie case and survive summary disposition. See Craig ex rel Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d 296 (2004). Proximate cause is an essential element of any negligence claim, and it involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. Ray v Swager, 501 Mich 52, 63; 903 NW2d 366 (2017) (quotation omitted). Proximate cause includes cause in fact and legal cause. Craig, 471 Mich at 86. The cause in fact element generally requires showing that but for the defendant s actions, the plaintiff s injury would not have occurred. On the other hand, legal cause or proximate cause normally involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences. [Id. at 86-87, quoting Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994).] -4-

5 To find that a defendant s negligence was a proximate or legal cause of the plaintiff s injuries, a court must first determine that the defendant s negligence was a cause in fact of the plaintiff s injuries. See Craig, 471 Mich at 87. Plaintiff is not required to prove that Rogers s acts or omissions were the sole catalyst for Luten s injuries to establish proximate cause, but must introduce evidence demonstrating that Rogers s acts or omissions were a cause of Luten s injuries. Id. As our Supreme Court has explained: It is important to bear in mind that a plaintiff cannot satisfy this burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation. Rather, a plaintiff establishes that the defendant s conduct was a cause in fact of his injuries only if he set[s] forth specific facts that would support a reasonable inference of a logical sequence of cause and effect. A valid theory of causation, therefore, must be based on facts in evidence. And while [t]he evidence need not negate all other possible causes, this Court has consistently required that the evidence exclude other reasonable hypotheses with a fair amount of certainty. [Id. at (citations and quotations omitted).] Plaintiff failed to demonstrate that the alleged breaches of the standard of care by Rogers were a proximate cause of Luten s injuries. Regarding Rogers s failure to discuss a GI consultation or ERCP with Dr. Shapiro, Dr. Shapiro did not recall discussing Luten s differential diagnosis with Rogers prior to the washout procedure on January 13, However, it was Dr. Shapiro s decision to perform the washout. Dr. Shapiro testified that even though there was a bile leak, he did not consider a GI consultation or ERCP because Luten was too sick to wait for such steps to be taken. In his estimation, Luten s bile peritonitis needed to be taken care of before undergoing a diagnostic procedure such as an ERCP. The risks associated with an ERCP prior to the washout included pancreatitis, small bowel rupture, aspiration pneumonia, or problems with the esophagus and throat. Dr. Shapiro testified that he believed that performing an ERCP prior to the washout would have been a hindrance to the subsequent procedure. Rogers also testified that he and Dr. Shapiro did not discuss Dr. Shapiro s decision regarding an ERCP prior to the washout. Rogers testified that he did not believe that Luten needed an ERCP prior to the washout, but that it was up to Dr. Shapiro to make that decision. Rogers had never recommended an ERCP prior to surgery. Dr. Harold A. Fenster, one of plaintiff s experts, provided testimony regarding the standard of care applicable to Dr. Shapiro and his purported breaches, rather than those applicable to Rogers. Dr. Fenster did not read the transcript from Rogers s deposition before being deposed. Dr. Fenster was not a trained physician s assistant, and he had no experience teaching in a physician s assistant program. Dr. Fenster had never been in a situation where a physician s assistant had disagreed with him and he changed his treatment plan as a result. Dr. Fenster was not aware from the record that Rogers had made any clinical decisions regarding the washout procedure as opposed to an ERCP. Dr. Fenster testified that typically in a laparoscopic cholecystectomy, a physician s assistant simply assists and holds the retractors, as Rogers did in this case. -5-

6 Plaintiff s expert, Dr. Jason D. Green, also did not testify that Rogers s actions were a proximate cause of Luten s injuries. Dr. Green testified that Dr. Shapiro had breached the standard of care by ignoring Luten s bile leak and injuring her small intestine. Dr. Green understood that Dr. Shapiro had thought that Luten was too sick for an ERCP, but opined that had an ERCP been performed prior to January 13, 2011, Luten s outcome would have been different. However, when asked whether Rogers s alleged breaches of the standard of care were a cause of Luten s injuries, Dr. Green testified that he had no opinions related to Rogers over and above any other healthcare worker. Dr. Green provided no testimony demonstrating that Rogers s actions were a proximate cause of Luten s injuries. In sum, plaintiff has failed to demonstrate even factual causation, much less proximate cause. See Craig, 471 Mich at 87. The evidence, taken in a light most favorable to plaintiff, would not allow reasonable minds to conclude that but for Rogers s failure to discuss a GI consultation or ERCP with Dr. Shapiro, Luten s injuries would not have occurred. Rather, the evidence demonstrates that Dr. Shapiro did not believe that an ERCP was proper at the time because it would have hindered Luten s prompt treatment for removal of bile. It is pure speculation that a conversation between Rogers and Dr. Shapiro would have resulted in Dr. Shapiro ordering an ERCP or otherwise changed Luten s results. In addition, plaintiff has not demonstrated that Rogers s alleged failure to document in Luten s medical record that Dr. Shapiro had declined to order a GI consult or ERCP was a proximate cause of Luten s injuries. Dr. Shapiro testified to his belief that an ERCP was unnecessary in Luten s case, but there was no documentation of such in Luten s medical record. Baumgartner testified that it would have been prudent for Rogers to have noted in the medical record that Dr. Shapiro had refused a GI consultation or ERCP, and that someone else might have seen that and wondered why, leading to faster treatment of Luten. However, Baumgartner admitted that this was speculation, and that he did not know what would have happened if it had been written down in the medical record. [M]ore than a mere possibility is required to demonstrate proximate cause. Craig, 471 Mich at 87. Baumgartner s speculative testimony does not meet this requirement. A mere possibility of [proximate cause] is not sufficient, and when the matter remains one of pure speculation and conjecture,... it becomes the duty of the court to direct a verdict in favor of the defendant. Genna v Jackson, 286 Mich App 413, 418; 781 NW2d 124 (2009). Furthermore, plaintiff has not demonstrated that Rogers s alleged failure to include information regarding further treatment of a bile leak in Luten s discharge papers on January 16, 2011 was a proximate cause of her injuries. Plaintiff argues that Rogers s failure to provide discharge information regarding the bile leak led Luten to become deathly ill after the washout, causing her to return to the hospital on January 18, However, as a physician s assistant, Rogers could not discharge patients on his own. Luten s discharge was cleared by Dr. Shapiro or his partner. As noted above, plaintiff is required to provide expert testimony to establish causation. Kalaj, 295 Mich App at 429. None of plaintiff s expert witnesses stated that Rogers s discharge instructions were a breach of the standard of care, or that Luten s injuries were foreseeable due to Rogers s discharge instructions. It is not clear from the documents contained in the lower court record that any of the expert witnesses even addressed the discharge papers. The Michigan -6-

7 Supreme Court has determined that issues regarding medical management, for example, staffing decisions and patient monitoring, are synonymous with questions of medical judgment, and therefore, must be established by expert testimony. See Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 46-47; 594 NW2d 455 (1999). Discharge procedures may properly be considered a manner of medical management. See id. Therefore, the lack of expert testimony linking Rogers s discharge instructions to Luten s injury is fatal to plaintiff s argument. IV. RESPONSE TO DISSENT Our partially dissenting colleague charges that our holding directly contradicts binding precedent and reflects a misunderstanding of basic causation principles. It does neither. The dissent contends that our analysis conflicts with our Supreme Court s order in Martin v Ledingham, 488 Mich 987; 791 NW2d 122 (2010). But Martin is distinguishable. In Martin, the defendant nurses had failed to provide the defendant doctor with information about the plaintiff s condition that was relevant to the doctor s post-surgical decision-making. In this case, by contrast, no evidence was presented that Rogers had failed to inform Dr. Shapiro of an aspect of Luten s condition; rather, plaintiff s claim was based solely on the fact that Rogers had not suggested an ERCP to Dr. Shapiro. Dr. Shapiro testified, however, that he had already rejected an ERCP because in assessing Luten s condition, he had determined that she was too sick for [an ERCP] at the time, that she had symptoms of bile peritonitis... that needed to be taken care of before any diagnostic procedure like an ERCP would be done, and that she needed a washout before anything else. Unlike in Martin, therefore, there was no basis on which a factfinder might have decided that Dr. Shapiro would have acted differently had he been presented with more accurate information on the patient s condition. The dissent posits, however, that a jury could decide to disbelieve Dr. Shapiro s assertions and hold that Dr. Shapiro may have ordered an ERCP, a procedure of which he indisputably was aware, if only Rogers had mentioned it. This is pure speculation and conjecture. Genna, 286 Mich App at 418. Although a factfinder is always free to find a witness not to be credible, this case presents no evidentiary basis on which to conclude that the jury could choose to disbelieve Dr. Shapiro, other than the mere fact that it is free to do so. The dissent pejoratively characterizes Dr. Shapiro s testimony as self-serving and biased. But his testimony was, if anything, self-implicating, as Dr. Shapiro took ownership of the decision, whether right or wrong, not to perform an ERCP. The dissent seeks to salvage a cause of action not only against Dr. Shapiro which indisputably is proceeding, and is not even at issue in this appeal but additionally against his physician s assistant for failing to challenge or go over the head of Dr. Shapiro. But the necessary evidentiary predicate for establishing that Rogers caused Luten s injuries is lacking in this case. Piling inference upon speculation is insufficient to survive summary disposition. See Skinner v Square D Co, 445 Mich 153, 166; 516 NW2d 475 (1984), quoting Howe v Michigan CR Co, 236 Mich 577, 584; 211 NW 111 (1926) ( Something more should be offered the jury than a situation which by ingenious interpretation suggests the mere possibility of defendant's negligence being the cause of the injury. ). By the dissent s -7-

8 rationale, it is difficult to see how any case would be dismissed on summary disposition, as the jury could choose to disbelieve any evidence offered by a party and substitute its own speculation in its stead. 5 We decline to adopt such a rationale, and instead hew to the longestablished principle that more than a mere possibility is required to demonstrate proximate cause. Craig, 471 Mich at 87. Plaintiff did not establish a genuine issue of material fact regarding whether Rogers s actions were a proximate cause of Luten s injuries. See Gorman, 302 Mich App at 115; MCR 2.116(C)(10). Accordingly, the trial court erred when it denied defendant s third motion for summary disposition as to proximate cause. Reversed and remanded for entry of summary disposition in favor of defendants. We do not retain jurisdiction. /s/ Mark T. Boonstra /s/ Jonathan Tukel 5 The dissent cites Taylor v Mobley, 279 Mich App 309, 314 n 5; 760 NW2d 234 (2008), for the proposition that the jurors prerogative to disbelieve testimony, including uncontroverted testimony, is well established. We note that our dissenting colleague also dissented in Taylor, and there stated, In the summary disposition context,... a nonmoving party may not rely on the potential for jury disbelief to supplant its duty to produce evidence demonstrating the existence of a genuine issue of material fact. Taylor, 279 Mich App at (GLEICHER, J., dissenting). We agree. -8-

9 S T A T E O F M I C H I G A N C O U R T O F A P P E A L S ESTATE OF TERI RAY LUTEN, by JOSEPH LUTEN, JR., Personal Representative, UNPUBLISHED May 3, 2018 Plaintiff-Appellee, v No Genesee Circuit Court GENESYS REGIONAL MEDICAL CENTER and LC No NH THOMAS ROGERS, PA-C, and Defendants-Appellants, GENERAL SURGEONS OF FLINT, PC and BRIAN SHAPIRO, M.D., Defendants. Before: GLEICHER, P.J., and BOONSTRA and TUKEL, JJ. GLEICHER, J. (concurring in part and dissenting in part). Plaintiff contends that the standard of care obligated defendant Thomas Rogers, a physician s assistant, to recommend that Teri Luten undergo an ERCP to identify the source of her postoperative bile leak. A general surgery expert testified that defendants failure to obtain an ERCP resulted in Luten s worsening sepsis and complicated recovery. The majority concludes that [i]t is pure speculation that Rogers s recommendation would have resulted in an ERCP. This holding contradicts binding precedent and reflects a misunderstanding of basic causation principles. As to this aspect of the majority opinion, I respectfully dissent. I Dr. Brian Shapiro laparoscopically removed Teri Luten s gallbladder. Luten was discharged from the hospital the next day. She returned a few days later with abdominal pain, dizziness and anemia. A HIDA scan revealed a probable bile leak. 1 Dr. Shapiro and Rogers took Luten back to the operating room. They found a large bile collection in the left upper 1 A HIDA scan is an imaging procedure that tracks bile flow through the gall bladder and liver

10 quadrant of Luten s abdomen, and washed it out with multiple liters of fluid. They did not look for the source of the bile leak. A different surgeon later determined that Dr. Shapiro had clipped Luten s hepatic duct rather than her cystic duct, resulting in the leak. Luten s professional negligence claims against Dr. Shapiro and Rogers center on the former s negligence in injuring the hepatic duct during the first surgery, and both defendants failure to determine the source of the bile leak during the January 13 operation. Craig Baumgartner, a physician s assistant, testified as an expert witness on Luten s behalf. He opined that the applicable standard of care required Rogers to make an independent decision... to identify the source of the bile leak and to communicate that recommendation to Dr. Shapiro. Baumgartner explained that an ERCP should have been obtained to find the leak s source. If Rogers had suggested an ERCP but Dr. Shapiro refused to order one, Baumgartner opined, Rogers should have documented that conversation in Luten s medical record. He summarized, [M]y problem with this case is... that... an ERCP wasn t ordered, a GI consult wasn t obtained. If he had spoken with his physician and they said don t need those, then to document that.... Dr. Jason Green, a general surgeon, testified that the standard of care mandated that Dr. Shapiro obtain an ERCP to determine the source of Luten s bile leak before reoperating. An ERCP would have changed the outcome in several respects, he explained, as it would have revealed the correct diagnosis, thereby improving the outcome of Luten s subsequent surgeries. 2 The majority declares that plaintiff has failed to demonstrate even factual causation, much less proximate cause, emphasizing that the evidence taken in a light most favorable to plaintiff, would not allow reasonable minds to conclude that but for Rogers s failure to discuss a GI consultation or ERCP with Dr. Shapiro, Luten s injuries would not have occurred. The majority rests this conclusion on Dr. Shapiro s testimony that an ERCP was not indicated. Based on this evidence, the majority concludes, [i]t is pure speculation that a conversation between Rogers and Dr. Shapiro would have resulted in Dr. Shapiro ordering an ERCP or otherwise changed Luten s results. The majority s analysis not only disregards plaintiff s evidence and finds facts, but overlooks the role played by reasonable inferences in establishing proximate cause. It therefore conflicts with our Supreme Court s order in Martin v Ledingham, 488 Mich 987; 791 NW2d 122 (2010), which compels an alternate result. II 2 Dr. Green elucidated: So certainly by the 13th you would expect by the 14th the patient could be at a center and instead of being there on the 20th, now you have a six-day head start and six less days of bile peritonitis, bile leaking, at least SIRS, a septic-like syndrome that s getting worse and worse for a much better outcome for any and all surgeries that were subsequently done

11 The majority s causation analysis fails to adhere to three central summary disposition principles: the evidence presented by the nonmoving party is to believed, reasonable inferences from that evidence are to be accepted, and a court may not engage in credibility assessments to find facts. A medical malpractice plaintiff must present evidence demonstrating a causal link between the defendant s professional negligence and the plaintiff s injuries. To establish that causal link, a plaintiff must produce evidence supporting that the negligence actually and proximately caused the injury. The two causation concepts work in tandem. First, a plaintiff must demonstrate that but for the defendant s negligence, the plaintiff s injury would not have occurred. Skinner v Square D Co, 445 Mich 153, 163; 516 NW2d 475 (1994). Once a plaintiff produces the factual support establishing a logical sequence of cause and effect, the plaintiff must also come forward with evidence supporting that the actual cause was proximate, meaning that it created a foreseeable risk of the injury the plaintiff suffered. Lockridge v Oakwood Hosp, 285 Mich App 678, 684; 777 NW2d 511 (2009); Skinner, 445 Mich at 160, 163. In a medical malpractice case, circumstantial evidence may suffice to demonstrate but-for causation, as long as the circumstantial evidence leads to a reasonable inference of causation and [is] not mere speculation. Ykimoff v Foote Mem Hosp, 285 Mich App 80, 87; 776 NW2d 114 (2009). Dr. Green s testimony substantiates that but for defendants failure to timely determine the source of Luten s bile leak, she would have avoided multiple complications and enjoyed a better outcome. Indisputably, this testimony suffices to establish a question of fact regarding both but-for and proximate cause as to Dr. Shapiro; counsel for Rogers admitted as much during oral argument. And although not explicitly stated in its opinion, I am confident that the majority would agree that summary disposition in favor of Dr. Shapiro on causation grounds would be improper, as Dr. Green s evidence suffices to establish both types of causation for summary disposition purposes. Dr. Shapiro s explanations or excuses for not doing the ERCP bear no relevance to a determination of whether Dr. Green s testimony sufficed to create a genuine issue of material fact regarding causation. Yet the majority rules out Rogers s role in the causation equation based on Dr. Shapiro s belief that an ERCP would have hindered Luten s prompt treatment for removal of bile, and urges that this testimony renders pure speculation that Rogers s input would have led to an ERCP. The majority errs by pinning its causation conclusions on Dr. Shapiro s self-serving testimony. 3 Dr. Shapiro s credibility regarding whether he would or would not have ordered an ERCP in the face of Rogers s recommendation is for a jury to decide. A jury is perfectly free to disbelieve retrospective, biased explanations inconsistent with the facts or the standard of care. 3 The majority rejects that Dr. Shapiro s testimony was self-serving, portraying him instead as having nobly fallen on his sword to protect Rogers. As a defendant, Dr. Shapiro was obligated to come up with an explanation for having neglected to perform an ERCP. He took ownership of the decision to forego the test because he had to. His defense depends on his ability to convince a jury that in neglecting to perform an ERCP he made a reasoned judgment that fell within the standard of care. Dr. Shapiro enhanced his own defense and served his own interests by claiming that an ERCP was unnecessary

12 This Court is not permitted to rely on such contested evidence when analyzing the propriety of summary disposition, as the Supreme Court pointed out in Martin, 488 Mich at 988. Martin also involved postsurgical decision-making and a doctor s testimony that he would have ignored information about the patient had it been provided by members of the healthcare team (in that cases, nurses). The plaintiff s experts (a doctor and a nurse) opined that the standard of care required that the nurse provide better reports to the attending surgeon about the plaintiff s postoperative condition. The [expert] doctor further testified that, had that occurred, a different course of treatment should have been undertaken that would have prevented or mitigated plaintiff s injuries. Martin v Ledingham, 282 Mich App 158, 161; 774 NW2d 328 (2009). This Court found this evidence irrelevant in light of the defendant doctor s affidavit averring that had the nurses provided him with earlier and better reports regarding plaintiff s postsurgical condition, he would have done nothing differently for the patient. Id. at We held that the plaintiff s evidence did not establish a reasonable inference[] of causation, and a finding of causation from these facts would be mere speculation at best. Id. at 163 (citation omitted, alteration in original). Using language strikingly similar to that of the majority, the Martin Court added, We conclude that a fact-finder s determination that there was cause in fact merely because the fact-finder disbelieved the doctors involved would be exactly the kind of speculation that Skinner disapproved in the absence of any affirmative cause-in-fact proof advanced by plaintiff. Id. The Supreme Court peremptorily and unanimously reversed, holding that the plaintiff s expert s testimony created a fact question regarding causation: [H]aving presented expert testimony regarding the treatment that the plaintiff, pursuant to the standard of care, should have received in the first 72 hours postsurgery, the treating physician s averment that he would have acted in a manner contrary to this standard of care presents a question of fact and an issue of credibility for the jury to resolve. [Martin, 488 Mich at 988.] In my view, the majority in this case makes the same error as did the panel in Martin. Here, both of plaintiff s experts testified that the standard of care required an ERCP. Dr. Green testified that but-for the failure to perform an ERCP, Luten s bile leak would have been discovered sooner. This testimony created a reasonable inference that if Rogers had suggested an ERCP, a physician adhering to the standard of care would have ordered one. The majority distinguishes Martin as applying to information relayed by nurses rather than a professional s recommendation regarding the standard of care. This is a distinction without a difference, as a standard of care recommendation relays information potentially more critical than a report of vital signs. Moreover, Martin addresses a treating physician s testimony about what he would or would not have done based on a communication, holding that such testimony is not conclusive. Martin instructs that whether this Court views Dr. Shapiro s contrary testimony as compelling or believable is irrelevant. This is so because ultimately, a jury may decide to disbelieve Dr. Shapiro s view about what he would or would not have done had Rogers told him (or reminded him) of what the standard of care required. For example, in Taylor v Mobley, 279 Mich App 309, 314; 760 NW2d 234 (2008), this Court held that a jury justifiably rejected the - 4 -

13 plaintiff s uncontradicted, unchallenged description of her personal pain and suffering after a dog bite. This Court observed that the jury could have simply disbelieved and discredited plaintiff s testimony regarding pain and suffering. Id. We referred in a footnote to several additional cases standing for the proposition that the jurors prerogative to disbelieve testimony, including uncontroverted testimony, is well established. Id. at 314 n 5. Medical malpractice cases are not exceptions to that rule. 4 The majority reaches faulty causation conclusions for a second reason: it neglects to view the record evidence in the light most favorable to Luten. It is telling that the majority spills considerable ink discussing Dr. Shapiro s reasons for not performing an ERCP and Rogers s defense of his own conduct. It is even more telling that after reciting this irrelevant evidence favoring the defense, the majority decides that a jury could not possibly disbelieve Dr. Shapiro, asserting, The evidence, taken in a light most favorable to plaintiff, would not allow reasonable minds to conclude that but for Rogers s failure to discuss a GI consultation or ERCP with Dr. Shapiro, Luten s injuries would not have occurred. Because this conclusion rests solely on the defendant s evidence it contravenes first principles of summary disposition. It ignores that the nonmoving party is entitled to the benefit of all reasonable inferences, regardless of the strength of the other side s proofs. In determining whether there is a genuine issue as to any material fact, we consider the evidence in the light most favorable to the nonmoving party. Kemp v Farm Bureau Gen Ins Co of Mich, 500 Mich 245, 251; 901 NW2d 534 (2017) (emphasis added). This is not an option, but a command. The genuine issue here relates to a fact that is not objectively provable: what would Dr. Shapiro have done if an ERCP had been suggested by the co-professional participant in the surgery? The answer depends on Dr. Shapiro s credibility. Although he testified that he would not have performed an ERCP, two expert witnesses Dr. Green and Craig Baumgartner testified that the standard of care required that an ERCP be performed. Could a jury reasonably decide that a general surgeon practicing within the standard of care would have opted for an ERCP when his physician s assistant suggested that it was the right thing to do? Certainly such a finding is plausible. That is why summary disposition is inappropriate when questions of 4 The majority misrepresents my position in Taylor, a dog-bite action in which the only evidence of damages presented to the jury was the plaintiff s testimony. The jury found liability but awarded the plaintiff nothing. The plaintiff argued on appeal that the verdict contravened the great weight of the evidence. I expressed that the jury s verdict irreconcilably conflicted with unrebutted, unchallenged, and undeniable evidence of damages. Taylor, 279 Mich App at 316. I argued that the majority s proclamation that the jury was free to disbelieve plaintiff s testimony meant that no challenge on great weight grounds could ever succeed, and suggested that [a] determination whether a verdict contravenes the great weight of the evidence requires careful analysis of the actual evidence, not formulaic rationalizations. Id. at 321. I pointed out that summary disposition analysis differs, as a nonmoving party may not avoid judgment by relying on jury disbelief instead of presenting evidence. That is no different than my position here. The majority fails to acknowledge that the testimony of Luten s experts is evidence giving rise to an inference. The majority makes the same mistake as did the Taylor majority it relies on rationalizations and ignores actual evidence

14 motive, intention, credibility, or other conditions of the mind are [the] material issues in the case. Pemberton v Dharmani, 207 Mich App 522, 529 n 1; 525 NW2d 497 (1994). A genuine issue of material fact exists because the record leaves open an issue about which reasonable minds could differ. Debano-Griffin v Lake Co, 493 Mich 167, 175; 828 NW2d 634 (2013). The majority contends that a jury s potential disbelief of Dr. Shapiro amounts to nothing more than speculation and conjecture. Piling inference upon speculation, the majority exhorts, is insufficient to survive summary disposition. Permitting a jury to disbelieve Dr. Shapiro would end summary disposition as we know it, the majority warns, opening the door to run-amok juries that choose to disbelieve any evidence offered by a party and substitute [their] own speculation in its stead. The majority s parade of horribles turns the law of summary disposition upside down. First, the norm is trial by jury, not summary disposition. See US Const, Am VII; Const 1963, art 1, 14 ( The right of trial by jury as declared by the constitution must be preserved to the parties inviolate. ) The United States Supreme Court has acknowledged that the federal court equivalent of MCR (C)(10) authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and... the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try. Sartor v ArkansasNatural Gas Corp, 321 US 620, 627; 64 S Ct 724; 88 L Ed 967 (1944). More recently the United Supreme Court highlighted that summary judgment is inappropriate where reasonable inferences support the need for resolution by a jury: The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system. By weighing the evidence and reaching factual inferences contrary to [the plaintiff s] competent evidence, the court below neglected to adhere to the fundamental principle that at the summary judgment stage, reasonable inferences should be drawn in favor of the nonmoving party. [Tolan v Cotton, US ; 134 S Ct 1861, 1868; 188 L Ed 2d 895 (2014).] Second, the majority misapprehends the meaning of reasonable inference and the relationship of that term to the perspective through which we view causation evidence. Our Supreme Court has emphasized: As a theory of causation, a conjecture is simply an explanation consistent with known facts or conditions, but not deducible from them as a reasonable inference. There may be two or more plausible explanations as to how an event happened or what produced it; yet, if the evidence is without selective application to any one of them, they remain conjectures only. On the other hand, if there is evidence which points to any one theory of causation, indicating a logical sequence of cause and effect, then there is a juridical basis for such a determination, notwithstanding the existence of other plausible theories with or without support in the evidence. [Kaminski v Grand Trunk W R Co, 347 Mich 417, 422; 79 NW2d 899 (1956) (quotation marks and citation omitted).] - 6 -

15 The key is a logical sequence of cause and effect. The common law has never required direct evidence of causation, or barred reliance on inference. Summary disposition is improper when a trier of fact reasonably could draw an inference supporting causation from the established facts. It is a basic proposition of law that determination of disputed issues of fact is peculiarly the jury s province. Even where the evidentiary facts are undisputed, it is improper to decide the matter as one of law if a jury could draw conflicting inferences from the evidentiary facts and thereby reach differing conclusions as to ultimate facts. [Nichol v Billot, 406 Mich 284, ; 279 NW2d 761 (1979) (citations omitted).] This admonition is particularly pertinent in the context of proximate cause: The question of proximate cause is generally held to be one for the jury. Any doubts about the relations between the causes and the effects should be resolved by the jury. The determination of remoteness should seldom, if ever, be summarily determined. Fiser v Ann Arbor, 417 Mich 461, 475; 339 NW2d 413 (1983) (citations omitted), overruled on other grounds by Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000). A jury might decide that no matter what Rogers said, Dr. Shapiro would not have ordered an ERCP. But we need not speculate, as it does not matter whether Dr. Shapiro s view will ultimately prevail. The proper legal question is whether the evidence presented could support a reasonable jury determination that one of the causes of Luten s injuries was Rogers s failure to recommend an ERCP. See Opdyke Investment Co v Norris Grain Co, 413 Mich 354, 360; 320 NW2d 836 (1982) ( A genuine issue of fact is created when the affidavits, pleadings, depositions, admissions and documentary evidence, viewed in the light most favorable to the party opposing the motion, might permit inferences contrary to the facts as asserted by the movant. ) (emphasis added). The evidence presented from Dr. Green and Mr. Baumgartner easily clears this hurdle. The correct inquiry as to both actual and proximate cause is whether sufficient record evidence demonstrates that the defendant s negligence was a cause of plaintiff s injury, and... that the plaintiff s injury [was] a natural and probable result of the negligent conduct. M Civ JI Contrary to bedrock legal rules, the majority has weighed the evidence and decided that it favors Rogers. By failing to credit evidence that a reasonable physician s assistant would have recommended an ERCP and by refusing to acknowledge a reasonable inference that a surgeon conforming to the standard of care would have heeded that recommendation, the majority has substituted itself for a jury. I would affirm this aspect of trial court s summary disposition ruling. That said, I concur with the majority that Rogers s failure to chart information regarding the bile leak or Luten s discharge instructions remain unconnected to Luten s injuries and damages. Plaintiff s experts did not provide testimony that supplies any reasonable inferences in this regard. /s/ Elizabeth L. Gleicher - 7 -