Zack Atakishiyev v. David Chengelis Md
332299
| Mich. Ct. App. | Sep 19, 2017Background
- Plaintiff underwent laparoscopic Roux-en-Y gastric bypass and hernia repair by Dr. Chengelis on Dec. 19, 2012; abdomen was opened for the hernia repair.
- Postop, plaintiff had repeated vomiting and intestinal contents; Chengelis performed a second operation Dec. 21, 2012 for acute small-bowel obstruction.
- An NG tube was discussed preoperatively but not placed because Chengelis feared perforating the fresh anastomosis; plaintiff later aspirated, developed aspiration pneumonitis, ARDS, a stage IV pressure sore, and neuropathy.
- Plaintiff sued for medical malpractice alleging failure to place an NG tube before the second surgery. Both sides proffered expert surgeons who disagreed whether an NG tube should have been placed.
- Plaintiff moved in limine to exclude defendants’ experts (Drs. Baker and Webber) arguing their opinions were not scientifically reliable and that Baker misdefined the standard of care (used “prudent” and applied a local rather than national standard).
- Trial court excluded Baker for articulating the wrong standard (using “prudent”); it declined to rule on the experts’ scientific reliability pending trial. The Court of Appeals reversed the exclusion of Baker and affirmed deferral on reliability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Baker should be excluded for defining standard of care as what a “prudent” practitioner would do | Baker used the wrong standard (Michigan jury instruction uses “ordinary”), so his testimony is unreliable and should be stricken | Using the word “prudent” is substantively equivalent to the required standard; Baker applied the correct specialty standard | Reversed: using “prudent” did not justify exclusion; trial court abused discretion in striking Baker |
| Whether Baker applied a local rather than nationwide standard | Baker referenced that surgeons in Michigan typically would not use an NG tube, so he applied a local standard improperly for a specialist | Baker did not apply only a local standard; brief comment did not show he used wrong standard | Rejected plaintiff’s claim; no exclusion on that basis at this juncture |
| Whether defendants’ experts’ opinions are scientifically unreliable under MRE 702 / MCL 600.2955 | Experts relied mainly on personal experience without sufficient supporting literature; plaintiff’s cited literature supports placing an NG tube | Expert opinion based on training, knowledge, and case facts; absence of literature is not dispositive | Affirmed: determination of scientific reliability is premature and properly deferred to trial; lack of literature is a factor but not automatically fatal |
Key Cases Cited
- Bellevue Ventures, Inc. v. Morang-Kelly Investment, Inc., 302 Mich. App. 59 (discretionary standard for motions in limine)
- Woodard v. Custer, 476 Mich. 545 (abuse-of-discretion standard explained)
- Elher v. Misra, 499 Mich. 11 (expert reliability—experience alone insufficient; admissibility factors)
- Turbin v. Graesser (On Remand), 214 Mich. App. 215 (proponent must show expert’s knowledge of applicable standard)
- Bahr v. Harper-Grace Hosps., 448 Mich. 135 (specialist standard of care—national vs. local application)
- Jones v. Porretta, 428 Mich. 132 (discussion of guarantees of skill by specialists vs. general practitioners)
- Locke v. Pachtman, 446 Mich. 216 (use of “reasonably prudent surgeon” language in standard-of-care testimony)
- Sikkema v. Metro Health Hosp., 485 Mich. 937 (context for standard-of-care phrasing)
- Edry v. Adelman, 486 Mich. 634 (MRE 702 admissibility analysis and methods requirement)