Medical malpractice; Wischmeyer v Schanz; Proximate causation; O’Neal v St John Hosp & Med Ctr; Expert testimony; Kalaj v Khan; Distinguishing between a “reasonable inference” & “impermissible conjecture”; Distinguishing Badalamenti v William Beaumont Hosp-Troy; Lay witness opinion testimony; MRE 701; Airgas Specialty Prods v Michigan Occupational Safety & Health Admin

Holding that there was a genuine issue of material fact on the issue of whether defendant-doctor’s (Shulak) alleged breach of the standard of care (SOC) “proximately caused plaintiff’s injuries, including pain resulting from the two implant removal and replacement surgeries,” the court reversed and remanded. Plaintiffs-husband and wife (Jaki) sued Shulak and defendant-hospital for medical malpractice alleging Dr. Shulak, during a biopsy procedure, lacerated, punctured, or otherwise compromised or damaged Jaki’s breast implant and caused it to rupture. The trial court found plaintiff failed to establish a genuine issue of material fact as to the element of “proximate causation between the alleged breach and the injury.” On appeal, the court first found that the “trial court erred when it granted summary disposition to defendants because there are genuine issues of material fact . . . on the issue of whether Dr. Shulak’s alleged breach of the [SOC] in his performance of the biopsy procedure was a proximate cause of plaintiff’s injuries.” The evidence established “a sufficiently reliable factual basis for” plaintiff’s expert’s opinion that “Dr. Shulak’s alleged breach of the [SOC] in his use of and technique with the Mammotome needle was a proximate cause of it cutting, puncturing, notching or otherwise compromising the structural integrity of the implant shell. There is a genuine issue of material fact whether this weakened the wall of the implant, allowing it to rupture with subsequent pressure from muscle activity and movement.” Although the “ultrasound images Dr. Shulak chose to capture in the course of the biopsy procedure do not depict the biopsy needle actually within the breast implant, that does not conclusively establish that a puncture did not occur.” Notably, defendants did “not suggest an alternative causative mechanism for the implant rupture other than it occurring during the postsurgical mammogram due to its age.” And they “failed to preserve the complete ultrasound imaging record.” The court also disagreed with the trial court’s conclusion that plaintiff did not present expert testimony sufficient to create “a genuine issue of material fact as to whether Dr. Shulak’s alleged medical negligence was a proximate cause of the pain plaintiff suffered subsequent to that biopsy procedure.” Plaintiff was “certainly permitted to offer testimony as to her own perceptions, particularly where, as here, expert testimony acknowledge[d] that Dr. Shulak’s alleged breach of the [SOC] can be a proximate cause of the ongoing pain plaintiff says she has experienced.”