On appeal, a medical malpractice case recently examined whether the plaintiff’s theory of causation went against the established facts, and if summary judgment was proper.
Background
A patient suddenly went into cardiac arrest and died in the hospital two days after undergoing bariatric surgery. The autopsy revealed the cause of death was a pulmonary embolism (PE) due to deep vein thrombosis (DVT), which is when a blood clot forms in a deep vein that travels to the lungs. The medical examiner noted in the autopsy report that the patient’s pulmonary arteries were “filled with emboli extending from the large to medium sized vessels” and that “[d]issections of both legs reveal deep leg veins thrombosis.” On the death certificate, the medical examiner stated that the approximate time between the onset of the PE due to the DVT and the patient’s death was “Secs-Mins.”
The plaintiff brought a malpractice action against the cardiologist who cleared the patient for surgery and his medical practice. The complaint alleged that the doctor breached the standard of care by failing to refer the patient for a venous doppler ultrasound before clearing him for the bariatric surgery. According to the medical records, the doctor didn’t perform any additional testing to rule out DVT. In support of her claim, the plaintiff presented the testimony of an expert witness who said the observations documented by the doctor during the patient’s physical examination suggested the presence of a chronic condition and warranted further evaluation for DVT. Similarly, the defendants’ expert said in his deposition that he agreed that the man died from PE due to DVT, but he disagreed that the DVT formed over seconds and minutes, as the medical examiner concluded. He stated that the blood clots in the patient’s legs didn’t happen overnight; they were “present over several days, maybe months.”
The Elements of Negligence
In a medical malpractice case, the plaintiff bears the burden of proving: (1) the applicable standard of care, (2) breach of that standard by defendant, (3) injury, and (4) proximate causation between the alleged breach and the injury. A plaintiff must establish both factual causation, i.e., the defendant’s conduct in fact caused harm to the plaintiff, and legal causation, i.e., the harm caused to the plaintiff was the general kind of harm the defendant negligently risked. A court must first find that the defendant’s negligence was a cause in fact of the plaintiff’s injuries before it can hold that the defendant’s negligence was the proximate cause of those injuries.
A valid theory of causation must be based on facts in evidence, the Court explained. A plaintiff establishes that the defendant’s conduct was a cause in fact of his injuries only if he states specific facts that would support a reasonable inference of a logical sequence of cause and effect. The evidence “need not negate all other possible causes” but must “exclude other reasonable hypotheses with a fair amount of certainty,” the Court said. But the plaintiff must present substantial evidence from which a jury may conclude that more likely than not, but for the defendant’s conduct, the plaintiff’s injuries wouldn’t have occurred. An expert’s opinion is objectionable where it is based on assumptions that aren’t in accord with the established facts.
Here, the Court of Appeals found that the plaintiff produced substantial evidence to support her theory to demonstrate that there was a genuine issue of material fact as to causation. Her theory was that the patient showed signs of DVT when he was seen by the doctor, which went undiagnosed because the doctor failed to refer him for an ultrasound. When the patient was examined by the doctor, he didn’t display some symptoms associated with a DVT in the legs, such as redness or warmth of the skin. However, the doctor agreed that there was edema or swelling in the right leg, as well as less swelling in the left. This difference in swelling of the legs was a possible symptom of a DVT condition. One of the plaintiff’s experts testified at his deposition that the localized edema or swelling and shortness of breath the doctor observed in a March 2018 visit suggested that the patient could have been “already shooting emboli at that” time, because those were symptoms of DVT. The expert believed that the patient probably continued to develop blood clots until his death. In addition, the defendants’ expert also found that because there was no change in the patient’s swollen leg from the February visit to the March visit, it supported referring the patient for an ultrasound under the standard of care.
The defendants argued that there were other possible explanations for the swelling in the patient’s legs at the time that the doctor examined him. They asserted that obesity, medication side effects, or chronic venous insufficiency caused the leg swelling. However, the plaintiff’s evidence didn’t need to negate all other possible causes of the patient’s death. The plaintiff countered the defendants’ arguments with evidence that if one or all of those conditions existed, they likely would have caused swelling to both legs, not just one. The plaintiff’s experts agreed that when a DVT occurs, it typically results in the affected leg swelling, not both legs. Accordingly, the plaintiff offered evidence to exclude other reasonable hypotheses offered by the defendants.
Furthermore, the Court concluded that the plaintiff presented sufficient evidence to create a question of fact as to whether the patient’s DVT developed within seconds to minutes before his death. It was the failure to test for and diagnose patient’s DVT, which may have been present for months before patient’s surgery, that the plaintiff alleged was malpractice causing patient’s death. Had patient’s DVT been properly diagnosed and treated, the plaintiffs alleged, there was a strong likelihood that a PE wouldn’t have occurred during surgery.
Although the plaintiff’s experts disagreed with the medical examiner and defendants’ experts as to the onset of the DVT, that didn’t contradict any established fact. The medical examiner’s conclusion was based on his objective findings from the autopsy, as was the plaintiff’s experts’ conclusion. The plaintiff provided substantial evidence that a DVT couldn’t have formed within seconds to minutes and wasn’t relying on mere speculation or conjecture with regard to the factual cause of the patient’s death; the experts’ testimony was based on the patient’s medical record and objective findings and photographs from the autopsy.
Viewing the evidence in the light most favorable to the plaintiff demonstrated that a question of fact existed as to whether the patient had a DVT when the doctor evaluated him. Therefore, defendants weren’t entitled to summary disposition. The Court of Appeals reversed the trial court’s order granting summary disposition for defendants. Jones v. Zarghami, 2025 Mich. App. LEXIS 3052, 2025 LX 11851 (Mich. App. April 17, 2025).
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