Monday, November 21, 2011

Experts must be careful in how they express their opinion.

Holding that the plaintiffs failed to prove that a genuine issue of material fact existed as to proximate cause because their expert (B) did not opine with a reasonable degree of medical certainty what a dilated eye exam might have shown, the court affirmed the trial court's order granting the defendants summary disposition. The injured plaintiff (Brown) underwent surgery to have a cataract removed from his right eye on 4/6/06. He moved his head during the surgery, which caused a tear in the posterior capsule. Defendants-Burk and Wacksman saw him on 4/7/06 and 4/13/06 - "the medical records indicated no problems from the surgery." When he awoke on 4/14/06, he noticed a loss of vision in his right eye. He contacted defendants, who saw him on an emergency basis and immediately referred him to a specialist. The specialist diagnosed a detached retina, and Brown underwent surgery to reattach his retina. Plaintiffs sued defendants for malpractice and negligence. After B's deposition, two allegations remained - (1) Burk should have told Brown about the tear in the posterior capsule and warned the plaintiffs of the signs and symptoms of retinal detachment, and (2) Burk and Wacksman should have performed a dilated exam on 4/7 or 4/13, respectively, to examine the back of the eye and retina. Defendants successfully moved for summary disposition under MCR 2.116(C)(10). The trial court found that B's opinion was based on speculation and could not support the causation element. Plaintiffs argued on appeal that B's opinions showed that it was more likely than not that had the defendants performed a dilated exam of Brown's right eye, the retinal damage would have been found and his vision loss would have been reduced. The court disagreed, concluding that the statements the plaintiffs relied on were not based on fact, and were "speculation and conjecture" on B's part. B "used language like ‘if' and ‘had' when talking about the dilated exams. He also admitted that he could only speculate about the results of dilated exams, since no such exam had been done." Reviewing B's statement that the plaintiffs argued showed the necessary causation, the court concluded that B said, "had an exam been performed and had that exam revealed retinal damage, then had the proper action been taken, Brown's outcome would have been better." Those statements were speculation. Plaintiffs also argued that Burk's failure to warn them of signs and symptoms of retinal detachment was also a proximate cause of the injuries. The court held that even accepting the standard of care proposed by plaintiffs, they would not be entitled to relief. "Had such a warning been given it would have merely resulted in plaintiff presenting himself to defendants with specific complaints." However, B was unable to testify as to the likely outcome of the resulting retinal exam.

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