Medical malpractice; Proximate causation; Documentary evidence; Cause-in-fact; Legal cause; National Cancer Institute (NCI); The Surveillance, Epidemiology, & End Results Program (SEER); American Joint Commission on Cancer (AJCC); Carcinoembryonic antigen (CEA) level; Personal representative (PR)

In this traditional medical malpractice action, the court affirmed the trial court’s order granting summary disposition to defendants-Dr. Alsawah and Huron Medical Center. A review of decedent-Patricia’s medical records revealed “‘that she had a history of substantial medical conditions even before her cancer diagnosis.’” Alsawah (a board-certified medical oncologist) “was monitoring Patricia for cancer recurrence.” The court found “there was no testimony that the cancer was more likely than not present in the adrenal gland in 2015, nor was there any testimony that, more likely than not, cancer would not have spread to the adrenal gland if defendants had complied with the standard of care.” The court noted that when “asked to provide statistical survival rates in 2015 for a patient with recurrent rectal cancer that spread to the liver,” plaintiff’s expert (Dr. G, a board-certified medical oncologist and hematologist) “acknowledged that it depended ‘upon the situation.’” It also noted that when “asked to address Patricia’s specific situation if the cancer had been discovered in 2015, he acknowledged that it was possible that Patricia would have died even if curative-intent surgery was attempted.” Nonetheless, plaintiff asserted the trial court erred in granting defendants’ summary disposition motion “in light of the treatment Patricia received.” The court concluded “that plaintiff failed to present substantial evidence from which a jury could conclude that Dr. Alsawah’s conduct, in failing to diagnose the metastatic cancer in 2015, more likely than not caused Patricia’s death. Patricia was treated for colorectal cancer in 2012. Although her CEA levels were monitored in conjunction with other tests and began to rise substantially, the metastasis of the cancer was not confirmed until 2017. At that time, although surgery was deemed feasible, it was not recommended because of Patricia’s other health issues.” The court noted that after “the case was returned to the trial court for an evaluation of causation in a traditional medical malpractice action and not a loss-of-opportunity matter, the parties did not seek to retain new experts or re-depose experts to focus on this traditional theory of malpractice. Instead, defendants continued to rely on the NCI, SEER, and AJCC data that Patricia’s survival rate from metastatic colorectal cancer was less than 20%. [G], in his testimony and affidavit, seemingly attempted to avoid that statistic. And, he opined that the cancer had metastasized to the liver in 2015 in light of the CEA level and claimed that the cancer had not yet progressed to the adrenal glands. But, [G] did not have tests or other data to substantiate that opinion regarding progression. His opinion was merely conjecture and speculation.”