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May 2018

COA: If It Doesn’t Change Your Mind . . .

On May 3, 2018 the Michigan Court of Appeals issued its opinion in the matter of Teri Luten v Genesys Regional Medical Center, et al., one which may provide some ammunition to Defendants in attacking Plaintiff proximate causation theories, especially in cases involving “chain of command.” In a 2-1 decision, the panel reversed the trial court’s denial of the Defendant’s Motion for Summary Disposition.  The issue on appeal was whether there was sufficient testimony to establish whether a physician’s assistant’s (employed by the Defendant) failure to discuss the need for an endoscopic retrograde cholangiopancreatography (“ERCP”) with the patient’s attending general surgeon was a proximate cause for the Plaintiff’s injuries. Plaintiff alleged that if an ERCP would have been performed, a procedure that combines an upper gastrointestinal endoscopy and x-rays to treat problems of the bile and pancreatic ducts, the patient’s bile leak would have been diagnosed earlier and she would have avoided prolonged treatment.

The court found that there was no genuine issue of material fact linking the alleged failure by the physician’s assistant to discuss performing an ERCP with the attending physician to the patient’s injuries.  The decision to ultimately perform the procedure rested with the attending physician, and not with the physician’s assistant. All parties and experts agreed that the physician’s assistant could not perform nor order an ERCP independently. Therefore, Plaintiff attempted to put forth the theory that had the physician’s assistant discussed and documented the need for an ERCP, one would have been performed. In granting a reversal, the court cited the deposition of the attending general surgeon who testified that he would not have considered an ERCP because Ms. Luten was too sick to wait for such steps to be taken, and that her bile peritonitis needed to be addressed prior to the ERCP.

The court then cited that neither of plaintiff’s general surgery experts, Dr. Harold Fenster and Dr. Jason Greene, provided any testimony that could establish a link between the allegation of the physician’s assistant’s negligence to the failure to perform an ERCP, and in fact, largely failed to address the physician’s assistant’s treatment at all. Neither could cite scenarios whereupon a physician’s assistant disagreed with the physician’s opinions and the physician changed his or her course of treatment as a result. In addition, plaintiff was unable to link the physician’s assistant’s alleged failure to document the attending surgeon decision to decline an order for a gastrointestinal consult to the injuries.

Judge Gleicher wrote a separate dissent, arguing that the issue of proximate cause issue rests largely on credibility and therefore is a question for the jury. The jury could decide, according to the judge, not to believe the attending surgeon’s testimony that he would have performed the washout procedure even if the physician’s assistant recommended an ERCP be performed. The majority characterized this position as speculation adding the physician’s assistant provided no information that was relevant to the physician’s decision-making. They even noted that the testimony of the attending physician was self-implicating as he admitted that he would not have changed his opinion even if the physician’s assistant had suggested an ERCP be performed. 

This decision opens the door for Defendants, albeit slightly, in establishing proximate cause defenses for nurses, physician’s assistants or even other physicians who are alleged to have been negligent in failing to go “up the chain of command” or consult with physicians directing the care and treatment of a patient. Prior to Luten, the Court of Appeals and even the Supreme Court typically have held rulings in favor of Plaintiffs in cases where there is an allegation that a nurse failed to provide certain information to an attending physician. Plaintiff will call for limiting the holding of this case to situations where the nurse or physician did not provide any additional information. While the impact of the Luten may have limitations, the case provides some much-needed ammunition to Defendants in attacking Plaintiff’s proximate causation theories.

Contact Saulius Polteraitis at 734-742-1800 for additional information on Luten or other healthcare issues.