Douglas Spolyar v. William Beaumont Hospital ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DOUGLAS SPOLYAR, UNPUBLISHED
May 25, 2023
Plaintiff-Appellant,
v No. 361041
Oakland Circuit Court
WILLIAM BEAUMONT HOSPITAL doing LC No. 2019-170817-NH
business as BEAUMONT HOSPITAL-TROY, 2019-174073-NH
MICHIGAN HEALTHCARE PROFESSIONALS,
P.C. doing business as OAKLAND NEUROLOGY
CENTER, ANDREA ROSSI, D.O., NORMAN
BURNS, M.D., JODI R. KRESCH, D.O.;
SKYWALK INTERNAL MEDICINE, P.C.,
NADHEER ISSA, M.D. and STEVEN DIMSDALE,
M.D..
Defendants-Appellees.
Before: PATEL, P.J., and CAVANAGH and REDFORD, JJ.
PER CURIAM.
In this medical malpractice case, plaintiff appeals as of right an order granting summary
disposition in favor of defendants that was entered on the grounds that plaintiff’s proposed medical
expert testimony in support of his two theories of liability did not meet the standards set forth in
MRE 702 and MCL 600.2955. We reverse and remand.
I. BACKGROUND FACTS
This case arises from medical care that defendants rendered to plaintiff, a 35-year-old man,
from July 4, 2016 through July 13, 2016, while a patient at William Beaumont Hospital – Troy.
In short, plaintiff alleged that defendants failed to timely and properly diagnose and treat him for
a cerebral vascular accident (CVA or “stroke”) which resulted in plaintiff suffering additional,
more catastrophic, strokes that left him permanently disabled. Plaintiff specifically claimed that
defendants were negligent because he should have been administered aspirin, an antiplatelet
therapy, throughout his hospitalization and he should have had timely blood vessel imaging so that
-1-
an endovascular surgical procedure, a thrombectomy, could have been performed to remove the
thrombus or clot that subsequently caused his recurrent strokes. Plaintiff alleged that defendants’
failure to implement these treatments caused his debilitating and permanent injuries. Ultimately,
defendants argued that these theories of liability were not scientifically sound, and thus, could not
support plaintiff’s medical malpractice claims. The trial court agreed with defendants. A brief
summary of the course of plaintiff’s hospitalization and the procedural history of this case follows.
According to plaintiff’s complaint, on July 4, 2016, at about 3:40 p.m., plaintiff was taken
to the emergency department at defendant William Beaumont Hospital – Troy, with an altered
mental state and was seen by defendant Dr. Steven Dimsdale. Plaintiff had a temperature of 103.3,
and was noted to be confused and acting oddly. Plaintiff also appeared to be unable to move both
eyes in the same direction and did not appear to move his eyes to the left. At 3:50 p.m., plaintiff’s
initial NIH Stroke Scale1 score was 10, where a score between 5 and 15 is indicative of a moderate
stroke. Dr. Dimsdale ordered a head CT scan and the result was reported as follows: “well-defined
hypodensity is seen centered in the anterior right thalamus, concerning for an acute infarct.” 2 At
4:23 p.m., plaintiff’s NIH Stroke Scale score was 10 and a stroke alert was called. Dr. Dimsdale
consulted with a neurologist, defendant Dr. Jodi Kresch. Plaintiff was admitted to the hospital
under the care of an internal medicine specialist, defendant Nadheer Issa. Upon admission,
plaintiff was given IV antibiotics for suspected meningoencephalitis and a lumbar spine puncture
was to be performed to find the source of possible infection.
The next day, July 5, 2016, another neurologist, defendant Dr. Norman Burns, was
consulted and he noted “mental status change – etiology. CSF [cerebrospinal fluid] suggestive of
infectious process, MRI changes could be ischemic vs. inflammatory/infectious; also consider
PRES [posterior reversible encephalopathy syndrome], though no history of HTN [hypertension]
. . . .”3 Eventually plaintiff was determined to have “negative” lab cultures. On July 11, 2016, a
1
The NIH Stroke Scale (NIHSS) “is a tool used by healthcare providers to objectively quantify
the impairment caused by a stroke . . . . The NIHSS is composed of 11 items, each of which scores
a specific ability between 0 and 4. For each item, a score of 0 typically indicates normal function
in that specific ability, while a higher score is indicative of some level of impairment. The
individual scores from each item are summed in order to calculate a patient’s total NIHSS score.
The maximum possible score is 42, with the minimum score being a 0.”
https://en.wikipedia.org/wiki/National_Institutes_of_Health_Stroke_Scale (accessed April 17,
2023).
2
The CT scan report also stated in the “Findings” section of the report: “Additional hypodensity
is demonstrated in the right hippocampus. Large area of hypodensity involving the right occipital
and portions of the parietal lobe.” The “Impression” section of the report stated: “Findings are
compatible with an acute to subacute right PCA territory infarct . . . .”
3
An MRI of the brain was performed on July 5, 2016, and the report’s findings stated: “There are
areas of restricted diffusion [of] the parieto-occipital regions bilaterally, larger on the right (where
there is also extension into the medial aspect of the temporal region), together with involvement
of the thalami bilaterally (right greater than left), as well as a small focus of restricted diffusion
within the left midbrain, consistent with areas of acute/subacute infarct. There is also a small
-2-
third neurologist, defendant Dr. Andrea Rossi, was consulted and, according to plaintiff’s
complaint, she noted that an “MRI confirmed multiple posterior circulation infarcts and possible
vertebral-basilar artery disease.” Dr. Rossi recommended that a CT angiogram be performed, the
results of which noted a medical history of multiple strokes with vertebrobasilar irregularities;
there was a thrombus in the basilar artery. A neurosurgery consultation was ordered on July 11,
2016, but by that time no viable neurosurgical or endovascular interventions could be safely
offered to plaintiff. On July 13, 2016, plaintiff was transferred to William Beaumont Hospital –
Royal Oak. He remained at that hospital until August 8, 2016, when he entered a rehabilitation
center.
On May 21, 2019, plaintiff filed this medical malpractice case which arises out of the
medical care and treatment he received, or did not receive, at William Beaumont Hospital – Troy,
between July 4, 2016 and July 13, 2016. In Counts I, II, and VI of his complaint, plaintiff alleged
that defendants William Beaumont Hospital – Troy, Michigan Healthcare Professionals, d/b/a
Oakland Neurology Center, and Skywalk Internal Medicine were directly liable for failing to
ensure they had competent staff, including neurologists and internal medicine physicians, to
provide appropriate medical care, as well as proper policies and procedures in place. In Counts
III, IV, and V, plaintiff alleged that defendants Drs. Rossi, Burns, and Kresch failed to take timely
and appropriate actions as neurologists, including by performing proper testing, diagnosing that
plaintiff was having a stroke, and initiating proper treatment like antiplatelet therapy and referring
plaintiff to an interventional neuroradiologist. Plaintiff alleged that these neurologists were
directly liable for their acts and omissions, and that defendant William Beaumont Hospital – Troy
and defendant Michigan Healthcare Professionals, d/b/a Oakland Neurology Center, were
vicariously liable for such negligence. In Count VII, plaintiff alleged that defendant Issa failed to
take timely and appropriate actions as an internal medicine physician, including by performing
proper testing, diagnosing that plaintiff was having a stroke, and initiating proper treatment and
referring plaintiff to an interventional neuroradiologist. In Count VIII, plaintiff alleged that
defendant Dimsdale failed to take timely and appropriate actions as an emergency medicine
physician, including by performing proper testing, diagnosing that plaintiff was having a stroke,
and initiating proper treatment. Plaintiff attached to his complaint an Affidavit of Meritorious
Claim of Chitra Venkatasubramanian, a neurologist, as well as affidavits of merit from internal
medicine and emergency medicine physicians.
On October 17, 2019, defendants Michigan Healthcare Professionals and its individually-
named neurologists sought summary disposition on the ground that plaintiff’s affidavit of merit
authored by Dr. Chitra Venkatasubramanian (Dr. Venkat) failed to satisfy the requirements of
MCL 600.2912d(1)(c), and thus, was insufficient to commence the lawsuit. On January 8, 2020,
the trial court entered an order holding that the affidavit was sufficient and denying the motion for
summary disposition.
superimposed intraparenchymal and subarachnoid hemorrhage within the right occipital region.
Imaging findings raise the possibility of progressive reversible encephalopathy syndrome (PRES),
and further evaluation with short-term follow-up MRI scanning would be helpful in this regard.”
-3-
On September 17, 2021, a stipulated order of voluntary dismissal of defendant Dr. Steven
Dimsdale, as well as emergency medicine claims, was entered by the trial court.
On January 31, 2022, defendants William Beaumont Hospital – Troy and Skywalk Internal
Medicine sought partial summary disposition under MCR 2.116(C)(10), to dismiss plaintiff’s
direct liability claims, i.e., Counts I and VI of plaintiff’s complaint, because they were unsupported
by expert witness testimony. Plaintiff did not file a response to this motion and at oral argument
on the motion indicated that it was uncontested. Accordingly, the trial court granted that motion
and dismissed those claims.
On January 31, 2022, defendants William Beaumont Hospital – Troy, Skywalk Internal
Medicine, and Dr. Issa sought summary disposition of plaintiff’s claims arising from his theory of
liability that he would not have suffered recurrent strokes and would have had a better functional
outcome if he had been treated with aspirin. Defendants argued that plaintiff’s expert witness
testimony in this regard, particularly testimony given by Dr. Venkat, Dr. Michael Gold, and Dr.
Hiram Shah4 was not supported by reliable scientific evidence, and thus, must be excluded under
MRE 702 and MCL 600.2955. In particular, defendants argued, Dr. Venkat, Dr. Gold, and Dr.
Shah testified that defendant neurologists violated the standard of care by not administering, and
continuing to administer aspirin—an antiplatelet therapy—to plaintiff. And as a consequence of
not administering aspirin, Dr. Venkat and Dr. Gold testified, plaintiff suffered three recurrent—or
additional—strokes in his left midbrain, left thalamus, and left posterior cerebral artery. The
scientific basis on which Dr. Venkat and Dr. Gold relied upon in support of their opinions5 was an
article entitled “Effects of aspirin on risk and severity of early recurrent stroke after transient
ischaemic attack and ischaemic stroke: time-course analysis of randomised trials,” authored by
Peter M. Rothwell, et al, published in The Lancet, Vol 388 (July 23, 2016), pp 365-375 (“The
Rothwell Study”). However, defendants argued, that article did not apply under the circumstances
presented in plaintiff’s case because plaintiff had already suffered a major stroke with residual
neurological signs, as defined by the article, when he arrived to the hospital and, as the article
stated, aspirin did not work greater than 50 percent of the time to prevent recurrent strokes in such
cases. Accordingly, Dr. Venkat’s and Dr. Gold’s opinions as to aspirin were not admissible under
MRE 702 and MCL 600.2955, and thus, defendants were entitled to summary disposition of claims
arising from that theory of liability. In the alternative, defendants requested an evidentiary hearing
to examine whether plaintiff’s expert witness testimony comports with MRE 702 and MCL
600.2955.
On January 31, 2022, defendants William Beaumont Hospital – Troy, Skywalk Internal
Medicine, and Dr. Issa also sought summary disposition of plaintiff’s claims arising from his
theory of liability that he would not have suffered a second, larger stroke in his left midbrain if an
endovascular procedure, specifically a thrombectomy, had been performed. Defendants argued
that plaintiff’s expert witness testimony in this regard, testimony given by Dr. Gregg Zoarski, was
not supported by reliable scientific evidence, and thus, must be excluded under MRE 702 and
4
Dr. Shah is an internal medicine physician, not a neurologist.
5
Dr. Shah testified that he relied on his experience to support his opinion with regard to the
administration of aspirin under these circumstances.
-4-
MCL 600.2955. In particular, defendants argued, Dr. Zoarski relied on medical literature that only
concluded that randomized controlled trials needed to be done to determine the efficacy of
thrombectomy in treating basilar artery and other posterior circulation strokes like plaintiff’s in
this case. In other words, a thrombectomy was not the standard treatment for posterior circulation
strokes in July 2016 and the literature Dr. Zoarski relied upon does not support his opinion.
Accordingly, Dr. Zoarski’s opinions as to endovascular treatment, i.e., that a thrombectomy would
have prevented a second left midbrain lesion and resulted in a better functional outcome for
plaintiff, were not admissible under MRE 702 and MCL 600.2955. Therefore, defendants were
entitled to summary disposition of claims arising from that theory of liability. In the alternative,
defendants requested an evidentiary hearing to examine whether plaintiff’s expert witness
testimony comports with MRE 702 and MCL 600.2955.
On January 31, 2022, defendants Michigan Healthcare Professionals and its individually-
named neurologists sought summary disposition on the ground that plaintiff’s two theories of
liability were unsupported by reliable scientific evidence as required under MRE 702 and MCL
600.2955, and thus, must be dismissed. First, defendants argued, plaintiff was not a candidate for
an endovascular thrombectomy because such treatment had not shown any benefit for basilar artery
thrombus and, moreover, plaintiff was outside the time window for endovascular therapy. Second,
defendants argued, plaintiff should not have been kept on antiplatelet therapy like aspirin because
such treatment is contraindicated when a hemorrhage has been identified as in plaintiff’s case. In
other words, either of plaintiff’s experts’ proposed treatments would have likely resulted in
plaintiff’s death and were not stroke protocols in 2016. Accordingly, defendants were entitled to
summary disposition of this case or, in the alternative, at least an evidentiary hearing as to the
admissibility of plaintiff’s experts’ opinions. Attached to defendants’ motion were several
exhibits, including plaintiff’s medical records, several medical articles, and excerpts of the
deposition testimony of defense expert neurologist Dr. Seemant Chaturvedi.
On February 2, 2022, defendants Michigan Healthcare Professionals and its individually-
named neurologists filed a concurrence and joinder in the three motions for summary disposition
filed by co-defendants’ William Beaumont Hospital – Troy, Skywalk Internal Medicine, and Dr.
Issa, seeking the dismissal of plaintiff’s two theories of liability, as well as plaintiff’s direct liability
claims.
On February 16, 2022, plaintiff filed a response to the motion for summary disposition of
defendants William Beaumont Hospital – Troy, Skywalk Internal Medicine, and Dr. Issa premised
on the argument that plaintiff’s experts’ opinions as to the use of aspirin were unreliable, junk
science. Plaintiff argued that the requirements of MRE 702 and MCL 600.2955 were satisfied. In
particular, Dr. Venkat testified that any patient coming in to the hospital with an ischemic stroke
should receive antiplatelet therapy to prevent recurrent strokes, regardless of the time frame. And
as indicated by the Rothwell Study, providing aspirin to plaintiff would have resulted in a greater
than 50 percent chance that the recurrent strokes would not have occurred. Although a petechial
or small hemorrhage was identified in the MRI, there was only a low risk that aspirin would have
affected it and the benefit of administering aspirin was so high that it outweighed that risk. Dr.
Venkat clearly testified that the administration of aspirin was the standard of care under the
circumstances when plaintiff arrived at the hospital and during his hospitalization before he
suffered recurrent strokes. Further, Dr. Gold’s expert opinion on the issue was consistent with Dr.
Venkat’s expert opinion. Dr. Gold also noted that a petechial hemorrhage is bleeding that occurs
-5-
after a non-hemorrhagic infarct and it is a secondary event, not the primary event. Dr. Shah also
provided expert witness testimony consistent with that of Dr. Venkat and Dr. Gold, and Dr. Shah
relied upon his extensive training and experience to support his opinion. Plaintiff argued that his
experts relied not only on the Rothwell Study, but also on the “Yi Study” which was titled: “Low-
molecular-weight heparin or dual antiplatelet therapy is more effective than aspirin alone in
preventing early neurological deterioration and improving the 6-month outcome in ischemic stroke
patients,” authored by Xingyang Yi et al, published in the Journal of Clinical Neurology, 2015;
11(1):57-65. These two studies, plaintiff argued, were peer reviewed and published in highly
regarded scientific journals and do not constitute “junk science.” Accordingly, plaintiff’s experts’
opinions were reliable, meeting the requirements of MCR 702 and MCL 600.2955, and defendants
were not entitled to summary disposition of claims arising from the theory of liability that plaintiff
should have been treated with aspirin which would have prevented his recurrent strokes. In the
alternative, plaintiff requested an evidentiary hearing so that the court could gauge the reliability
of each expert’s testimony.
On February 16, 2022, plaintiff filed a response to the motion for summary disposition of
defendants William Beaumont Hospital – Troy, Skywalk Internal Medicine, and Dr. Issa premised
on the argument that plaintiff’s expert opinions as to the appropriateness of endovascular
interventions were unreliable, junk science. Plaintiff argued that the requirements of MRE 702
and MCL 600.2955 were satisfied. In particular, Dr. Zoarski testified that if plaintiff had
undergone a thrombectomy on July 4, 5, or 6—as he should have—plaintiff would not have
suffered from the large midbrain stroke and Dr. Zoarski supported his opinion with a number of
articles that were applicable and reliable. Plaintiff cited to numerous medical articles that
supported Dr. Zoarski’s opinion regarding the efficacy and outcome in terms of achieving
recanalization. As Dr. Zoarski testified, plaintiff had a greater than 80 percent chance of
recanalization with mechanical thrombectomy. Although defendants’ experts hold a different
opinion, plaintiff argued, such difference of opinion does not establish unreliability sufficient to
exclude expert witness testimony. Accordingly, Dr. Zoarski’s opinions were reliable, meeting the
requirements of MRE 702 and MCL 600.2955, and defendants were not entitled to summary
disposition of claims arising from the theory of liability that plaintiff should have had a
thrombectomy which would have prevented the large midbrain stroke. In the alternative, plaintiff
requested an evidentiary hearing so that the court could gauge the reliability of Dr. Zoarski’s
expert’s testimony.
On February 16, 2022, plaintiff also filed a response to defendants Michigan Healthcare
Professionals and its individually-named neurologists’ motion for summary disposition, arguing
that plaintiff’s two theories of liability—i.e., that the administration of aspirin and a thrombectomy
would have prevented the recurrent strokes, including the large midbrain stroke—were sufficiently
supported by reliable expert witness testimony, as discussed above. Therefore, this motion for
summary disposition must be denied or, in the alternative, an evidentiary hearing should be held
so that the reliability of plaintiff’s experts’ opinions could be demonstrated to the court.
On February 25, 2022, defendants Michigan Healthcare Professionals and its individually-
named neurologists’ filed a reply brief to plaintiff’s response to their motion for summary
disposition, reiterating that plaintiff’s experts’ opinions were not supported by reliable scientific
evidence and must be excluded under MRE 702 and MCL 600.2955. Defendants argued that
-6-
plaintiff had a severe stroke at baseline, and thus, aspirin would not have helped and a
thrombectomy was not an option in plaintiff’s case.
On February 28, 2022, defendants William Beaumont Hospital – Troy, Skywalk Internal
Medicine, and Dr. Issa filed reply briefs to plaintiff’s responses to their motions for summary
disposition, reiterating their arguments that there was no reliable scientific basis to support
plaintiff’s experts’ opinions. In short, the Rothwell Study relied upon by plaintiff’s experts shows
that aspirin would likely not have reduced the risk of recurrent stroke in light of plaintiff’s
condition and the medical literature relied upon by Dr. Zoarski shows that a thrombectomy would
likely not have prevented a second left midbrain lesion and would not have resulted in a better
functional outcome for plaintiff. Therefore, there was no reliable scientific basis under MRE 702
and MCL 600.2955 to support plaintiff’s experts’ opinions and defendants are entitled to summary
dismissal of plaintiff’s claims.
On March 16, 2022, the trial court heard oral arguments on defendants’ motions for
summary disposition and the parties argued consistently with their briefs. In rendering its opinion
from the bench, the trial court restated defendants’ arguments that plaintiff could not show that
defendants breached the standard of care by (1) failing to administer antiplatelet (aspirin) therapy
during the course of hospitalization, and (2) failing to properly consider plaintiff as a candidate for
endovascular intervention, and that such failures cost plaintiff the opportunity to achieve a more
favorable outcome by more than 50 percent. The court indicated that an evidentiary hearing was
not required in this case because it was clear from the testimony and numerous medical studies
provided that plaintiff’s experts’ opinions were not reliable, including that such opinions were at
times speculative or not supported by the statistical data presented in the studies relied upon.
The trial court discussed several medical articles relied upon by plaintiff’s experts, first
addressing several articles relied upon by plaintiff’s expert Dr. Zoarski and distinguishing them
from the facts of this case with regard to plaintiff’s endovascular therapy theory of liability. The
trial court then addressed the Rothwell Study relied upon by plaintiff’s experts with regard to
plaintiff’s antiplatelet therapy theory of liability. The court noted that plaintiff’s last-known-well-
date was three days before presentation at the hospital and the Rothwell Study dealt with patients
who presented less than 48 hours after a major acute stroke. Further, plaintiff presented with ten
neurological deficits and, according to the terms of the article, he would likely be categorized as
having had a severe, major stroke, and thus, would not have benefited from aspirin. But even if
plaintiff had a mild or moderate stroke under the terms of the study, the relative benefit of the
administration of aspirin was still less than 50 percent with regard to preventing recurrent strokes.
The court concluded that the evidence presented by plaintiff, considered in the light most favorable
to plaintiff, “simply does not meet the 51 percent threshold for [a] medical malpractice action when
applied to plaintiff’s circumstances.” Therefore, defendants’ motions for summary disposition
were granted for the reasons they presented. Thereafter, on March 28, 2022, an order was entered
granting summary disposition in favor of all defendants and dismissing plaintiff’s case in its
entirety. On April 15, 2022, plaintiff filed his claim of appeal.
-7-
II. ANALYSIS
A. STANDARD OF REVIEW AND APPLICABLE LAW
We review de novo a trial court’s decision on a motion for summary disposition. Lakeview
Commons v Empower Yourself, LLC, 290 Mich App 503, 506; 802 NW2d 712 (2010). A motion
brought under MCR 2.116(C)(10) tests the factual support of a plaintiff’s claim and should be
granted if, after consideration of the evidence submitted by the parties in the light most favorable
to the nonmoving party, no genuine issue regarding any material fact exists. Id. “There is a
genuine issue of material fact when reasonable minds could differ on an issue after viewing the
record in the light most favorable to the nonmoving party.” Allison v AEW Capital Mgt, LLP, 481
Mich 419, 425; 751 NW2d 8 (2008).
In a medical malpractice case, the plaintiff must show: “(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.” Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 492; 668
NW2d 402 (2003). As set forth in MCL 600.2912a(2):
In an action alleging medical malpractice, the plaintiff has the burden of proving
that he or she suffered an injury that more probably than not was proximately
caused by the negligence of the defendant or defendants. In an action alleging
medical malpractice, the plaintiff cannot recover for loss of an opportunity to
survive or an opportunity to achieve a better result unless the opportunity was
greater than 50%.
“Expert testimony is required to establish the standard of care and a breach of that standard, as
well as causation.” Kalaj v Khan, 295 Mich App 420, 429; 820 NW2d 223 (2012) (internal
citations omitted).
To be admissible, expert testimony must be rendered by one qualified as an expert, be
reliable under MRE 702, and meet the requirements of MCL 600.2955. In this case, defendants
do not challenge the qualifications of plaintiff’s expert witnesses, i.e., they are qualified as experts
by “knowledge, skill, experience, training, or education[.]” MRE 702. However, defendants
challenge the reliability of plaintiff’s experts’ opinion testimony under MRE 702 and claim that
such testimony does not meet the requirements of MCL 600.2955.
Under MRE 702, an expert witness may render testimony only if “(1) the testimony is
based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods,
and (3) the witness has applied the principles and methods reliably to the fact of the case.” This
rule requires that each aspect of the testimony be reliable. Elher v Misra, 499 Mich 11, 22; 878
NW2d 790 (2016). “Under MRE 702, it is generally not sufficient to simply point to an expert’s
experience and background to argue that the expert’s opinion is reliable and, therefore,
admissible.” Id. at 23, quoting Edry v Adelman, 486 Mich 634, 642; 786 NW2d 567 (2010).
Further, “[a] lack of supporting literature, while not dispositive, is an important factor in
determining the admissibility of expert witness testimony.” Elher, 499 Mich at 23. And, as the
Elher Court explained:
MCL 600.2955(1) requires the court to determine whether the expert’s
opinion is reliable and will assist the trier of fact by examining the opinion and its
-8-
basis, including the facts, technique, methodology, and reasoning relied on by the
expert, and by considering seven factors:
(a) Whether the opinion and its basis have been subjected to scientific testing and
replication.
(b) Whether the opinion and its basis have been subjected to peer review
publication.
(c) The existence and maintenance of generally accepted standards governing the
application and interpretation of a methodology or technique and whether the
opinion and its basis are consistent with those standards.
(d) The known or potential error rate of the opinion and its basis.
(e) The degree to which the opinion and its basis are generally accepted within the
relevant expert community. As used in this subdivision, ‘relevant expert
community’ means individuals who are knowledgeable in the field of study and are
gainfully employed applying that knowledge on the free market.
(f) Whether the basis for the opinion is reliable and whether experts in that field
would rely on the same basis to reach the type of opinion being proffered.
(g) Whether the opinion or methodology is relied upon by experts outside of the
context of litigation. [Id. at 23-24.]
In this case, defendants filed motions for summary disposition, arguing that the expert
witness testimony plaintiff presented in support of his two theories of liability—the antiplatelet
and endovascular theories—was not reliable and did not meet the requirements of MRE 702 and
MCL 600.2955; therefore, plaintiff could not prove his claims and the case must be dismissed.
The trial court agreed with defendants. We consider each theory of liability in turn.
B. ANTIPLATELET THEORY OF LIABILITY
On appeal, plaintiff argues that the trial court erred in dismissing his claim that defendants
breached the standard of care by failing to continue to administer aspirin, an antiplatelet therapy,
which would have prevented the recurrent strokes that caused his debilitating injuries. We agree.
In support of this theory of liability, plaintiff primarily relied on two neurology experts,
Dr. Venkat and Dr. Gold, both of whom testified that the failure to continue to administer aspirin
after a single, initial dose was administered to plaintiff was a breach of the standard of care and
the administration of aspirin more likely than not would have prevented the recurrent strokes that
plaintiff suffered. We consider their testimony separately.
1. DR. VENKAT’S TESTIMONY
Dr. Venkat, who is board certified in neurology, has a subcertification in vascular
neurology, and is a full-time clinical professor at Stanford University, testified that plaintiff
-9-
presented to the emergency room on July 4, 2016 with symptoms of a stroke which, according to
the CT scan, likely occurred at least 12 to 24 hours before arrival. The CT scan on July 4, 2016
showed a right thalamic stroke and a right posterior cerebral artery (PCA) stroke. No hemorrhage
was seen on the CT scan. The neurological deficits that plaintiff exhibited in the emergency room
were vision loss on the left side visual field and minimal left arm drift. Plaintiff was determined
to be a 9 on the NIH Stroke Scale. The cause of plaintiff’s stroke was unknown but irrelevant to
treatment. Plaintiff’s last-known-well-date was documented to be three days before arrival in the
emergency room. Plaintiff was administered one dose of aspirin, which is an antiplatelet, but that
was discontinued. In the absence of antiplatelet therapy, thrombus accumulates and grows;
therefore, plaintiff—who had an ischemic stroke, should have been continued on aspirin therapy
to prevent recurrent strokes regardless of the timing of the strokes.
On July 5, 2016, plaintiff’s NIH score was fluctuating between an 8 and 9. An MRI was
performed on July 5, 2016, which confirmed the right thalamic stroke and the right PCA stroke,
but also showed a new left PCA stroke, a new small stroke in the left thalamus, and a new small
stroke in the left midbrain. It was unknown if the new areas of infarct were “new” or just the result
of better imaging. The MRI also revealed petechial hemorrhages which were small and related to
the preexisting right PCA stroke. When one has a stroke, the damage can cause some leaking of
tiny amounts of blood within a prior ischemic stroke which is of no clinical significance. In other
words, plaintiff’s was not a primary or spontaneous intracerebral hemorrhage and antiplatelet
therapy was not contraindicated. However, on July 6 and July 7, plaintiff began experiencing new
neurological issues, including diplopia, blurred vision, gaze problems, and crossed eyes. It was at
this time that plaintiff suffered a recurrent stroke which expanded the tiny left midbrain stroke—
which would not have caused lasting deficits—into a much larger left midbrain stroke. But an
MRI was not performed until July 10, 2016, which detected the new left midbrain stroke.
Despite significant evidence of strokes concerning the posterior circulation, no blood
vessel imaging was performed until July 10, 2016. Therefore, while plaintiff may have had a
basilar artery occlusion—partial or complete—when he presented to the emergency room on July
4, it is impossible to know for sure because no vessel imaging, i.e., either a CTA or MRA, was
performed until several days later on July 10, 2016. A physician can only diagnose a basilar artery
occlusion if there is blood vessel imaging, after which a neurointerventionalist would be consulted
if a clot is identified. That is, if blood vessel imaging would have been done and if a clot had been
seen, that clot may have been able to be removed which would have prevented plaintiff’s recurrent
strokes.
On July 10 and July 11, plaintiff had additional neurological issues, including a headache
and was becoming nonverbal with worsening neurological status—which corresponded with the
new large and debilitating left thalamic stroke that occurred on July 12 or July 13, 2016. According
to Dr. Venkat, that left thalamic stroke “basically wiped him out and is responsible for the majority
of the residual deficits” that plaintiff continues to experience. This stroke coincided with a jump
in plaintiff’s NIH Stroke Scale score that was seen on July 12 and July 13. On July 13, 2016,
plaintiff was transferred to Beaumont – Royal Oak, and he was given aspirin during that
hospitalization but plaintiff had already had the debilitating left thalamic stroke—which first
showed up on a CT scan taken on July 14 because no imaging was done on July 12 or July 13.
Further, an MRA from July 19 was significantly different than the MRA from July 10. The July 10
MRA showed that there was still flow in the posterior cerebral arteries while the MRA of July 19
-10-
showed an extensive clot in the top of the basilar artery and no flow in the PCA arteries on either
side.
Dr. Venkat opined that plaintiff’s subsequent or recurrent strokes that occurred after his
admission to the hospital on July 4 were the result of thrombus growing and extending into the
perforator arteries because no antiplatelet therapy was being administered to plaintiff during this
hospitalization despite worsening of his neurological symptoms. If plaintiff had been continued
on aspirin—instead of aspirin being discontinued after the first initial dose, “the clot would not
have propagated and would not have picked off more perforators and caused additional strokes.”
In other words, plaintiff would not have had the several recurrent strokes that occurred, including
the left thalamic stroke that was responsible for most all of his residual deficits. And the
administration of aspirin is not time-dependent or time-sensitive so any time a patient comes in
with an ischemic stroke, they get antiplatelet therapy like aspirin to prevent recurrent strokes. The
efficacy of antiplatelet therapy in the long term, like after the first six weeks following a stroke, is
reduced with regard to preventing recurrent strokes.
Dr. Venkat explained that she was relying on an extensive body of literature that had been
around for 50 years in support of her opinion that aspirin would have prevented plaintiff’s recurrent
strokes, but she provided two publications that were representative of the body of medical articles
that speak about antiplatelet efficacy. The Rothwell Study is one which speaks to the efficacy of
aspirin in mild and moderate strokes—in preventing recurrent strokes in the first six weeks. This
Study applied to plaintiff who had, at best, a moderate stroke upon presentation to the emergency
room. The guidelines from the American Heart Association and American Stroke Association,
i.e., AHA/ASA, also characterize such treatment as a Level 1A recommendation—to give
antiplatelets to someone who presents with an ischemic stroke. These guidelines provide a
roadmap for what a reasonable neurologist should be doing.
Specifically, with regard to the Rothwell Study, Dr. Venkat testified that because plaintiff
had an ischemic stroke, he would have been included in the trials of antiplatelet medications like
aspirin. “The Rothwell paper collected 12 different studies . . . looking at the short-term benefit
of preventing recurrent strokes with aspirin.” Dr. Venkat quoted three pertinent paragraphs from
the article; first, on page 368 of the paper: “Aspirin also reduces severity of recurrent ischemic
stroke during the six weeks after randomization. Consequently, aspirin reduced the six-week risk
of disabling or fatal stroke, i.e., modified ranking score of more than two, by about 70 percent.”
Second, on page 368 of the article: “Aspirin reduced the six-week risk of disabling or fatal
ischemic stroke by about 70 percent, and the risk of very severe ischemic stroke by about 75
percent.” And, third, on page 371: “On pooled analysis of recurrent ischemic stroke in patients
with mild and moderately severe initial deficits, no effect was found, no effect of aspirin was found
within the first 24 hours after randomization, but the risk was reduced by day two;” that risk was
reduced by 56 percent by day two and by day three the risk was reduced by 69 percent, and during
days 4 to 6 the risk was reduced by 55 percent. The second article Dr. Venkat provided was called:
“Low molecular weight heparin or dual antiplatelet therapy is more effective than aspirin alone in
preventing neurological deterioration and improving the six-month outcome in ischemic stroke
patients.” Dr. Venkat agreed that plaintiff would not have met all of the inclusion criteria for that
study, but her purpose in providing the article was to show that if aspirin had been continued and
for some random reason had failed, then there were other options available.
-11-
2. DR. GOLD’S TESTIMONY
Dr. Gold, a practicing attending physician who has been board certified in adult neurology
since 1985 and is also an associate clinical professor at UCLA in neurology, substantially agreed
with Dr. Venkat about the clinical course of plaintiff’s hospitalization and, for the sake of brevity,
will not be repeated here unless distinguishable or particularly relevant. Dr. Gold testified that all
strokes in general are more common in the anterior circulation than in the posterior circulation and
plaintiff’s strokes occurred in the posterior circulation. Dr. Gold opined that mechanical
thrombectomies have been a treatment option for posterior circulation strokes for many decades
and they are commonly performed. He did not believe that there was an absolute window of time
or time limit for treatment by a thrombectomy; it would depend on the stroke disorders that were
present and a neurointerventionalist would determine the safety of that intervention in the
circumstances presented based on their experience and clinical judgment. Dr. Gold agreed with
Dr. Venkat that plaintiff’s stroke as of July 4 and July 5 was mild to moderate. The etiology of
the stroke was unknown—which is common, even in a person who was plaintiff’s age.
Dr. Gold testified that plaintiff had an additional stroke in the region of his left midbrain
around July 6 or July 7, which produced double vision, and then he had a left thalamic stroke on
July 12, which caused a marked deterioration of his neurological status—his speech and level of
consciousness—on that day, and resulted in severe and permanent disabilities. An MRI on July
19 showed the new left thalamic stroke. Dr. Gold opined that all of the neurologists who treated
plaintiff violated the standard of care because no one put him on any treatment for stroke other
than in the first 24 hours where he was given an aspirin. “My standard of care criticism is failure
to involve – to offer any treatment whatsoever for stroke. Aspirin was started and it was
discontinued, no interventional radiologist was consulted. He was not given any treatment for
stroke.” Plaintiff “should have been treated with an antiplatelet agent. Aspirin would have been
a choice. It would have been a choice. He should have undergone angiography to determine why
he had a stroke, and an interventionalist needed to be involved.” Either CT or MR angiography
should have been done on July 4 or on July 5 to determine the etiology of plaintiff’s neurologic
deficits and may have showed that thrombectomy was a treatment option. Dr. Gold thought that
diminished blood flow or partial occlusion of the vertebrobasilar system caused by a blood clot
located before the bifurcation of the basilar artery into the posterior cerebral arteries would have
been demonstrated by a CTA or MRA performed on July 4 or July 5, but one was not performed.
The MRA that was performed on July 26 showed that there was no blood flow in either the distal
basilar artery or in the bilateral posterior cerebral arteries, while the MRA performed on July 10
showed that there had been blood flow—albeit diminished, or slow, flow.
Dr. Gold believed that the Rothwell Study was an important demonstration of the efficacy
of aspirin in patients who have had a stroke to prevent recurrent strokes. And based on the
Rothwell Study, Dr. Gold was of the opinion that if plaintiff had been continued on aspirin
throughout his hospitalization, it is more probable than not that plaintiff would not have developed
the subsequent and debilitating left midbrain and left thalamic strokes. Dr. Gold acknowledged
that aspirin could be contraindicated when there are certain types of intracranial hemorrhage but it
depends upon the nature of it, including the size, location, and description. While plaintiff’s MRI
of July 5 indicated that there were hemorrhages seen, the hemorrhages were petechial hemorrhages
which “occur[] after an infarct, after a nonhemorrhagic infarct. It’s a bleeding that occurs
following an infarct, it’s not the primary event. It’s a secondary event.” Plaintiff did not have a
-12-
hemorrhagic stroke which is a primary brain hemorrhage that causes the stroke, not a secondary
event. It is the primary rupture of a blood vessel that causes bleeding in the brain. That is not
what plaintiff had; he had a nonhemorrhagic stroke that then developed some aspects of blood
associated with it but that is common with nonhemorrhagic strokes. Therefore, aspirin would have
been appropriate treatment for plaintiff. In other words, any risk associated with giving aspirin to
plaintiff was outweighed by the potential benefit of not having a severely disabling stroke—which
is what happened in this case because he was not given aspirin.
To summarize, Dr. Gold opined that the standard of care was breached by defendants’
failure to continue to administer aspirin to plaintiff, failure to order timely additional imaging like
angiography, and failure to consult an interventional neuroradiologist with regard to plaintiff’s
care and treatment. It was Dr. Gold’s opinion within a reasonable medical probability that as a
consequence of these failures, plaintiff has permanent neurological injury today. Plaintiff cannot
live on his own; he requires the care of others to survive and maintain his health.
3. SUMMARY DISPOSITION
Defendants filed motions for summary disposition challenging the scientific basis for Dr.
Venkat’s and Dr. Gold’s opinions that aspirin should have been given to plaintiff throughout his
hospitalization which would have prevented plaintiff’s recurrent and debilitating strokes, thereby
breaching the standard of care and depriving plaintiff of the opportunity to achieve a more
favorable outcome by more than 50 percent. Both doctors provided expert opinions on these issues
that were based on their specialized education, training, and extensive experience as practicing
neurologists who were also professors of neurology at major universities. They also relied on
medical articles, with Dr. Venkat testifying that she was relying on an extensive body of literature
that had been around for 50 years in support of her opinion regarding the efficacy of aspirin but
only provided a couple of publications that were representative of the body of such medical
articles. One of those publications was the Rothwell Study, which the trial court concluded did
not, in fact, support Dr. Venkat’s or Dr. Gold’s opinions that, had plaintiff been given aspirin
throughout his hospitalization, he had a better than 50 percent chance of not suffering the recurrent
strokes that caused his injuries.
Upon review of the Rothwell Study, we disagree with the trial court’s interpretation and
conclusion. The Rothwell Study pooled data for 15,778 participants from 12 trials of aspirin
treatment groups versus control treatment groups in secondary prevention of recurrent stroke after
transient ischemic attack (TIA) or ischemic stroke. The “Findings” of the Study stated: “Aspirin
reduced the 6 week risk of recurrent ischaemic stroke by about 60% . . . and disabling or fatal
ischaemic stroke by about 70% . . ., with greatest benefit noted in patients presenting with TIA or
minor stroke . . . .” That is, for patients presenting with TIA or minor stroke, aspirin reduced the
risk of disabling or fatal recurrent stroke by about 80%. The Study specifically noted that “[t]hese
effects were independent of dose, patient characteristics, or aetiology of TIA or stroke.”
Despite these “Findings” of the Study, defendants argued in their motion for summary
disposition that Dr. Venkat’s reliance on these findings was untenable because the Study also
discussed data derived from the stratification of test subjects by severity of stroke deficits at the
initiation of therapy, i.e., at baseline, and concluded that the results were not as favorable. The
Study states: “Aspirin reduced the 14 day risk of recurrent ischaemic stroke in participants with
-13-
mild neurological deficits at baseline, with a consistent effect across trials, but had no effect in
those with severe deficits at baseline[.]” Further, “[i]n participants with moderately severe deficits,
there was a significant overall reduction in risk, but there was heterogeneity between trials[.]” The
Study did not give specific percentage values with regard to each group with mild, moderate or
severe deficits, perhaps because of the heterogenous nature of the comparable variables, but the
Study did provide hazard ratios and associated confidence intervals which describe the relative
risk of recurrent stroke with aspirin treatment. The Study stated: “On pooled analysis of recurrent
ischaemic stroke in patients with mild or moderately severe initial deficits, no effect of aspirin was
found within the first 24 h … after randomisation, but risk was reduced by day 2 (HR 0.44, 95%
CI 0.25-0.76, p = 0.0034) and day 3 (0.31, 0.16-0.58, p = 0.0003), with further reduction during
days 4-6 (0.45, 0.31-0.67, p ˂0.0001) and days 7-14 (0.86, 0.58-1.27, p = 0.45).” Based on the
stated hazard ratios, Dr. Venkat testified that the relative risk of recurrent stroke was reduced by
56% after day two [1.0 - .44]; by day three the risk was reduced by 69% [1.0 - .31]; and during
days 4 to 6, the risk was reduced by 55% [1.0 - .45]. Thus, aspirin reduced the relative risk of
recurrent ischemic stroke by more than 50% in patients with mild or moderately severe initial
deficits after the first 24 hours. And when plaintiff arrived at the emergency room on July 4, 2016,
he had an NIH Stroke score of 10, where a score between 5 and 15 is indicative of a moderate
stroke and which is also consistent with the deficit parameters of the Study. Consequently, Dr.
Venkat’s conclusions were supported by and consistent with the Study’s “Findings” that “Aspirin
reduced the 6 week risk of recurrent ischaemic stroke by about 60% . . . and disabling or fatal
ischaemic stroke by about 70% . . ., with greatest benefit noted in patients presenting with TIA or
minor stroke . . . .” Therefore, the Rothwell Study did support Dr. Venkat’s and Dr. Gold’s
opinions that, had plaintiff been given aspirin from day two of his hospitalization, he had a better
than 50 percent chance of not suffering the recurrent strokes that caused his injuries.
While defense expert Dr. Seemant Chaturvedi testified that he disagreed with Dr. Venkat’s
and Dr. Gold’s interpretation of the Rothwell Study data, he also testified that he too treats stroke
patients with aspirin—and he does so even when there is a risk of bleeding in the brain. Dr.
Chaturvedi gave an example as to how he would explain to a patient or a patient’s family his
treatment as follows: “So if somebody comes into our hospital with a stroke and atrial fibrillation
a lot of times we’ll hold the anticoagulant for about a week to reduce the risk of bleeding in the
brain but eventually we’ll want that patient to go on anticoagulants and so I don’t necessarily tell
the family that I’m withholding the anticoagulant for one week because of the risk of hemorrhagic
transformation, I tell them that this is a stroke, we’re going to use aspirin initially, later we’ll place
him on anticoagulant but I don’t necessarily tell them the thought process behind each of these
steps.” If aspirin was not the standard of care in treating acute stroke patients, Dr. Chaturvedi
would not have discussed treating his hypothetical patient with aspirin.
And in his deposition Dr. Chaturvedi agreed that the standard of care in 2016 required that
a patient with an ischemic stroke be given aspirin within 48 hours when there is no hemorrhage
present and when it was not a cardioembolic stroke. It appears that Dr. Chaturvedi’s criticism of
Dr. Venkat’s reliance on the Rothwell Study was based, at least in part, on his misinterpretation of
her testimony, as evidenced by his testimony that “if someone were to claim that based on this
article a patient would have 60 percent chance of improvement simply with aspirin I don’t think
that’s a reliable opinion.” But that is not the claim; rather, the claim by Dr. Venkat and Dr. Gold
is that aspirin would have significantly reduced the risk of recurrent stroke such that plaintiff had
a better than 50 percent chance of not suffering the recurrent strokes that caused his injuries. They
-14-
did not claim that aspirin would have improved the damage already done by the initial strokes that
plaintiff suffered; they claimed aspirin would have more likely than not prevented further damage
and decline caused by additional strokes.
As this Court has often explained, Michigan evidentiary law incorporates the requirements
set forth in Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469(1993). See People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). And while the
proponent of expert testimony must establish its reliability, neither Daubert nor MRE 702 require
the trial court, as gatekeeper, “to search for absolute truth, to admit only uncontested evidence, or
to resolve genuine scientific disputes.” Unger, 278 Mich App at 217 (quotation marks and citation
omitted).
Instead, the proper role of the trial court is to filter out expert evidence that is
unreliable, not to admit only evidence that is unassailable. The inquiry is not into
whether an expert’s opinion is necessarily correct or universally accepted. The
inquiry is into whether the opinion is rationally derived from a sound foundation.
The standard focuses on the scientific validity of the expert’s methods rather than
on the correctness or soundness of the expert’s particular proposed testimony. An
expert’s opinion is admissible if it is based on the methods and procedures of
science rather than subjective belief or unsupported speculation. [Id. at 217-218
(internal quotation marks and internal citations omitted).]
In this case, for the reasons discussed above, we conclude that the proposed expert witness
testimony of Dr. Venkat and Dr. Gold in support of plaintiff’s antiplatelet theory of liability met
the standards set forth in MRE 702 and MCL 600.2955. In other words, plaintiff may pursue his
theory that defendants breached the standard of care by failing to continue to administer aspirin
and the administration of aspirin more likely than not would have prevented the recurrent strokes
that caused plaintiff’s debilitating injuries. Therefore, the trial court erred in granting defendants’
motions for summary disposition premised on the argument that plaintiff’s experts’ opinions as to
the use of aspirin were unreliable junk science and must be excluded under MCR 702 and MCL
600.2955. Accordingly, we reverse the trial court’s dismissal of plaintiff’s claims arising from his
antiplatelet theory of liability and remand for further proceedings on this matter.
C. ENDOVASCULAR THEORY OF LIABILITY
On appeal, plaintiff argues that the trial court erred in dismissing his claim that defendants
breached the standard of care by failing to consult with a neurointerventionalist to perform an
endovascular procedure which more likely than not would have prevented the recurrent strokes
that caused his debilitating injuries. We agree.
1. DR. ZOARSKI’S TESTIMONY
In support of this theory of liability, plaintiff primarily relied on neuroradiologist and
neurointerventional surgeon Dr. Gregg Zoarski, who testified that the standard of care in this case
required that a vascular study like a CT angiogram be performed after the CT scan of July 4, 2016
showed a basilar artery occlusion, and then a thrombectomy should have been performed which
would have removed the clot and prevented the recurrent strokes that plaintiff suffered. Dr.
-15-
Zoarski substantially agreed with Dr. Venkat’s and Dr. Gold’s testimony regarding the clinical
course of plaintiff’s hospitalization and, for the sake of brevity, will not be repeated here unless
distinguishable or particularly relevant.
Dr. Zoarski provided testimony about the devices and techniques used for endovascular
revascularization, i.e., via aspiration or stent retrievers, and opined that several articles
demonstrated the success rate of revascularization to be about 80 to 85 percent. While most of
those articles related to anterior circulation strokes—and plaintiff’s strokes involved the posterior
circulation, Dr. Zoarski testified that “there are no randomized controlled studies in the posterior
circulation, but there are studies in the posterior circulation that have also shown approximately
80 percent revascularization with the use of aspiration and stent retrievers.” Dr. Zoarski testified
that attempts to do randomized controlled studies related to posterior circulation strokes, like those
caused by basilar artery occlusion, have been frustrated because people who are assigned to a “no
treatment” group or to a “medical management” group drop out of the study when they are told
they will not undergo endovascular revascularization. One article called “Outcomes of
Endovascular Treatment of Basilar Artery Occlusion in the Stent Retriever Era: A Systematic
Review and Meta-Analysis,” authored by Kevin Phan, et al, and published in the Journal of
Interventional Surgery in 2015, showed that there was an 80 percent recanalization rate with stent
retrievers for basilar artery occlusion. Dr. Zoarski testified that in his experience it was at least an
80 percent success rate in any large vessel occlusion in the brain and it did not matter if the
occlusion was in the anterior or posterior circulation. However, he agreed that the issue of
revascularization does not necessarily equate with better functional outcome. And in that article,
despite the high rate of recanalization, thrombectomy resulted in a favorable functional outcome
rate of 42.8 percent. A second article was discussed by Dr. Zoarski called “Intra-arterial
Thrombolytic Therapy Improves Outcome in Patients With Acute Vertebrobasilar Occlusive
Disease, authored by Werner Hacke, and published in the Journal of Stroke in 1988. That article
involved recanalization via intra-arterial thrombolytic therapy, not mechanical thrombectomy, but
it illustrated that of 19 patients who were recanalized, 10 of those had favorable outcomes.
Dr. Zoarski explained that many of the articles that defense counsel was referencing in his
deposition were articles that Dr. Zoarski provided to plaintiff’s counsel just for informational
purposes6 and were not necessarily articles that he planned on relying on to support his opinions
in this case. He said that he had other articles that he could discuss that were more specifically
relevant, but there were not many on posterior circulation as he stated earlier. Dr. Zoarski cited to
an article called “Local Intraarterial Thrombolysis and Vertebrobasilar Thromboembolic Disease,”
authored by H. Zeumer, and published in the American Journal of Neuroradiology in 1983. That
article looked at five patients who underwent revascularization for basilar artery occlusions of
various duration via a thrombolytic agent. Three of the five patients had improvement of
functional disturbances and further ischemic necrosis was prevented. Another article called
“Mechanical Recanalization in Basilar Artery Occlusion: The ENDOSTROKE Study,” authored
by Oliver Singer et al, and published in Annals of Neurology in 2015, involved mechanical
revascularization of 148 patients with basilar artery occlusion. Seventy-nine percent of those
patients were recanalized, and 76% had good to moderately good clinical outcomes An article that
6
Some of those articles were published years after plaintiff’s hospitalization.
-16-
Dr. Zoarski relied on to “show the extended time windows for the posterior circulation compared
with the anterior circulation” with regard to treatment was called “Thrombolytic Therapy for
Thomboembolism of Vertebrobasilar Artery,” authored by G.G. Nenci, and published in
Angiology in 1983. That article involved four patients with vertebrobasilar artery occlusion who
were treated with thrombolytic agents between 16 and 44 hours after symptoms appeared and three
of the four patients made almost a complete recovery. This study demonstrated that, unlike in the
case of anterior circulation strokes, patients with posterior circulation strokes do not have a fixed
time window in which treatment via thrombectomy should occur; rather, it depends on the patient’s
clinical picture and condition.
Dr. Zoarski testified that all of the strokes appearing on plaintiff’s July 4, 2016 CT scan
related to the occlusion of the distal basilar artery. The likely reason the lesions in plaintiff’s brain
got bigger over time was persistent and progressive occlusion of perforating arteries in the absence
of treatment of the thrombus that was in the basilar artery. By the time of the July 11, 2016 CT
angiogram, Dr. Zoarski believes the basilar artery was completely occluded. Dr. Zoarski stated
that in 2016, at the time that plaintiff was being treated, the standard of care was to treat a basilar
artery stroke with a thrombectomy. The only reason there were not randomized clinical trials
demonstrating the efficacy of this treatment was that patients did not want to be in the non-
thrombectomy group. Dr. Zoarski emphasized that the absence of a study did not mean that it was
not the standard of care in practice. And guidelines do not establish the standard of care. There is
no particular publication that establishes the standard of care for the issue of basilar occlusion. Dr.
Zoarski was basing his expert opinion on medical articles, but also on 20 years of academic
practice and 10 years at a large stroke center where he performed dozens and dozens of
thrombectomies in posterior circulation cases.
In plaintiff’s case, Dr. Zoarski testified, the standard of care required that a vascular study
be performed after the CT scan on July 4, 2016 showed a basilar artery occlusion and then plaintiff
should have had a thrombectomy, which had an 80% or greater likelihood of recanalizing the
basilar artery. If recanalization had occurred, plaintiff more likely than not would have had a better
functional outcome because the subsequent larger left midbrain stroke would have been prevented.
The main risk of thrombectomy on July 4 or July 5, 2016 would have been the risk of hemorrhage
related to the procedure or to revascularization but that occurred in less than ten percent of cases
and, realistically, that occurred in only three to five percent of cases.
2. SUMMARY DISPOSITION
Defendants filed motions for summary disposition challenging the scientific basis for Dr.
Zoarski’s opinions that a thrombectomy should have been performed on plaintiff early in his
hospitalization which more likely than not would have prevented plaintiff’s debilitating strokes.
In other words, that defendants breached the standard of care and deprived plaintiff of the
opportunity to achieve a better functional outcome by more than 50 percent. Defendants argued
that Dr. Zoarski’s opinions were unreliable because the medical literature he relied upon did not
prove the efficacy of thrombectomy in treating basilar artery and other posterior circulation strokes
like plaintiff’s in this case. In granting defendants’ motion for summary disposition, the trial court
agreed with defendants that the medical articles were not supportive of Dr. Zoarski’s opinion,
apparently because they did not consist of randomized controlled studies involving mechanical
thrombectomies in basilar artery strokes.
-17-
It is generally not sufficient to point to an expert’s experience and background to support
a claim that an expert’s opinion is reliable. Elher, 499 Mich at 23. And it is true that a lack of
supporting literature is an important factor in determining the admissibility of expert testimony,
although it is not dispositive. Id. There simply may not be scientific or medical literature on every
specific medical issue that can arise, but the proponent of such expert testimony must still present
a means to objectively and independently validate that the expert opinion is based on reliable
principles or methods. See MRE 702; Edry, 486 Mich at 641.
In this case, Dr. Zoarski provided several medical articles that included studies which
involved the removal of thrombus in the basilar artery either through thrombolytic agents and/or
mechanical thrombectomy. While Dr. Zoarski could not provide very many studies on mechanical
thrombectomy specifically, he explained that they simply did not exist although that procedure
was routinely being performed. The medical literature Dr. Zoarski relied upon tended to support
his expert opinion that thrombus in the basilar artery could successfully be removed, recanalization
achieved, and a good to moderately good functional outcome was more likely than not to result
from the intervention. The trial court appears to have primarily discredited Dr. Zoarski’s testimony
as unreliable because the articles that were available at the time of plaintiff’s stroke in July 2016
were not randomized controlled studies and they primarily utilized thrombolytic agents to
recanalize the basilar artery—not an endovascular procedure. But the ENDOSTROKE Study did
use an endovascular procedure and of the 79% of patients who were recanalized, 76% of them had
good to moderately good clinical outcomes. The trial court disregarded this article, though,
because the patients also received a thrombolytic agent in addition to the endovascular procedure.
We conclude that the trial court overreached its role as gatekeeper in the circumstances presented
in this case.
Again, “the trial court’s role as gatekeeper does not require it to search for absolute truth,
to admit only uncontested evidence, or to resolve genuine scientific disputes.” Unger, 278 Mich
App at 217 (quotation marks and citation omitted). We conclude that Dr. Zoarski’s opinion in this
case is rationally derived from a sound foundation, see id., in that it is based on medical literature
that was available at the time of plaintiff’s hospitalization which shows that recanalization of the
basilar artery is achievable in a majority of cases like plaintiff’s case, and more likely than not
would have resulted in a more favorable functional outcome. Defendants can, of course, challenge
Dr. Zoarski’s testimony through cross-examination and may present testimony and other evidence
which conflicts with or contradicts Dr. Zoarski’s opinions. In any case, we conclude that the
proposed expert witness testimony of Dr. Zoarski in support of plaintiff’s endovascular theory of
liability met the standards set forth in MRE 702 and MCL 600.2955. In other words, plaintiff may
pursue his theory that defendants breached the standard of care by failing to seek a consult with an
interventional neuroradiologist and pursue endovascular treatment which would have led to a
thrombectomy being performed and more likely than not prevented the recurrent strokes that
caused plaintiff’s debilitating injuries, i.e., resulted in a better functional outcome. Therefore, the
trial court erred in granting defendants’ motions for summary disposition premised on the
argument that plaintiff’s expert opinion as to endovascular treatment was unreliable junk science
and must be excluded under MCR 702 and MCL 600.2955. Accordingly, we reverse the trial
court’s dismissal of plaintiff’s claims arising from his endovascular theory of liability and remand
for further proceedings on this matter.
-18-
Reversed and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction. Plaintiff is entitled to costs as the prevailing party. MCR 7.219(A).
/s/ Sima G. Patel
/s/ Mark J. Cavanagh
/s/ James Robert Redford
-19-