On October 22, 2021, the Alpena County Circuit Court dismissed a medical malpractice case against an emergency medicine physician.
The plaintiff, who was represented by the Fieger Firm, accused Cameron’s physician client of failing to diagnose a deep vein thrombosis (DVT) that later progressed to a fatal PE.
The physician denied any wrongdoing and asserted that the standard of care required use of the Wells criterial to evaluate the patient for DVT. The Wells score suggested that an ultrasound was indicated, and the physician ordered one. The ultrasound showed no evidence of DVT. The patient was discharged with instructions to return if symptoms persisted or worsened. Later that night, the patient had a pulmonary embolism and died. At autopsy, further testing showed that she had a rare, undiagnosed genetic condition that caused a clotting disorder and an asymptomatic ovarian cyst.
At case evaluation, a non-unanimous panel issued an award of $4 million against the defendant physician. The Fieger Firm hired Dr. Mark Cichon as an expert. At his first deposition, Dr. Cichon stated that he relied solely on his education, training, and experience for his standard of care opinions. Cameron sought disqualification of Dr. Cichon pursuant to Ehler v. Misra, 499 Mich 11 (2016), which requires at least some literature support for standard of care opinions in malpractice cases. In response to the motion, Dr. Cichon presented a new affidavit that purported to provide literature support for his opinions. The court initially denied Cameron’s motion without prejudice and allowed Dr. Cichon to be deposed a second time at the plaintiff’s expense. No additional literature was presented at the second deposition.
Following the second deposition, the motion was renewed by Cameron. After the filing of the original motion, two new, unpublished cases had been issued by the Michigan Court of Appeals: Danhof v. Fahim, Michigan Court of Appeals Docket No. 352648 (May 7, 2021) (unpublished) and Fannon v. Lutz, Michigan Court of Appeals Docket No. 350637 (July 29, 2021). Both cases held that literature is required to support standard of care opinions and suggested that more than the mere “say-so” of a retained expert was required to meet the evidentiary standards set forth in MRE 702 and MCL 600.2955.
Following oral argument of the motions, the Alpena County Circuit Court issued a ten-page written opinion dismissing the case against the physician with prejudice.