Medical malpractice; Causation; Deep vein thrombosis (DVT); Personal representative (PR); Medical examiner (ME)

On remand from the Supreme Court, the court concluded that plaintiff showed a question of fact existed as to whether plaintiff-PR’s decedent-Jones had a DVT when defendant-Dr. Zarghami evaluated him. Thus, it reversed the trial court’s order granting summary disposition for defendants and remanded for further proceedings. This was “a medical malpractice case in which the trial court granted summary disposition to defendants, holding that plaintiff could not prove the element of causation.” Plaintiff’s theory was “that Jones showed signs of DVT when he was seen by Dr. Zarghami, which went undiagnosed because Dr. Zarghami failed to refer him for an ultrasound. At the time Jones was examined by Dr. Zarghami, Jones did not display some symptoms associated with a DVT in the legs, such as redness or warmth of the skin. However, Dr. Zarghami agreed that there was edema or swelling in the right leg, as well as less swelling in the left leg. This difference in swelling of the legs was a possible symptom of a DVT condition.” One of plaintiff’s experts “testified at his deposition that the localized edema or swelling and shortness of breath Dr. Zarghami observed in the [3/18] visit suggested that Jones could have been ‘already shooting emboli at that’ time, because those were symptoms of DVT. [He] believed that Jones probably continued to develop blood clots until his death.” Another expert “also found that because there was no change in Jones’s swollen leg from the February visit to the March visit, this supported referring Jones for an ultrasound under the standard of care.” Defendants argued “there were other possible explanations for the swelling in the decedent’s legs at the time that Dr. Zarghami examined him.” They claimed “that obesity, medication side effects, or chronic venous insufficiency caused the leg swelling. However, plaintiff’s evidence ‘need not negate all other possible causes’ of the decedent’s death.” Plaintiff had “countered defendant’s arguments with evidence that if one or all of those conditions existed, they likely would have caused swelling to both legs, not just one.” Plaintiff’s experts agreed “that when a DVT occurs, it typically results in the affected leg swelling, not both legs.” Thus, plaintiff had “offered evidence to exclude other reasonable hypotheses offered by defendants.” Further, plaintiff had “put forth sufficient evidence to create a question of fact as to whether the decedent’s DVT developed within seconds to minutes before his death. Although plaintiff’s experts disagreed with the [ME] and defendants’ experts regarding the onset of the DVT, this disagreement does not contradict any established fact.” The court found that the ME's “conclusion was based on his objective findings from the autopsy, and so is plaintiff’s experts’ conclusion.” Plaintiff had “provided substantial evidence that a DVT could not have formed within seconds to minutes. Plaintiff is not relying on mere speculation or conjecture with regard to the factual cause of Jones’s death; the experts’ testimony is based on Jones’s medical record and objective findings and photographs from the autopsy.”