                            STATE OF MICHIGAN

                            COURT OF APPEALS



NANCY BINDSCHATEL,                                                    UNPUBLISHED
                                                                      March 8, 2016
               Plaintiff-Appellant,

v                                                                     No. 323769
                                                                      Grand Traverse Circuit Court
MUNSON MEDICAL CENTER,                                                LC No. 13-029965-NH

               Defendant,
and

TRAVERSE ANESTHESIA ASSOCIATES., P.C.,

               Defendant-Appellee.



Before: SERVITTO, P.J., and GADOLA and O’BRIEN, JJ.

PER CURIAM.

       Plantiff Nancy Bindschatel appeals as of right the trial court’s August 28, 2014 order
granting summary disposition to defendant Traverse Anesthesia Associates, P.C. pursuant to
MCR 2.116(C)(10). We affirm. Bindschatel’s claim against defendant Munson Medical Center
was dismissed by stipulation and is not at issue in this appeal.

        Bindschatel suffered a tracheal laceration of approximately seven centimeters while
undergoing surgery to remove a cancerous portion of her lung. The laceration caused temporary
voice loss and required additional surgery and follow-up treatment. Bindschatel subsequently
filed this lawsuit against both defendants, alleging that the anesthesiologist, Dr. Mark R.
Aulicino, caused the laceration through faulty placement of an endotracheal tube. At his
deposition, Aucilino testified that the intubation procedure at issue “was very straight forward.”
Asked if he had an opinion, within a reasonable degree of medical certainty, as to what caused
the tear in Bindschatel’s trachea, Aucilino offered “a few potential causes,” but he prefaced them
by stating that, “[a]s to the exact cause, I don’t think I could say specifically.” He opined that the
most probable cause was “[c]uff pressure” from “having the endotracheal tube in the trachea
with the cuff inflated,” but he also acknowledged that barotrauma or surgical exposure might
have also caused or contributed to the injury. Aucilino further acknowledged that insertion of
the tube itself was a possible cause, but he stated that it was “far down on [his] list, based on how
the intubation proceeded.”

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        Bindschatel’s expert, Dr. David Austin, agreed in his deposition that cuff pressure was a
possible cause of Bindschatel’s injury but said that he knew of no example where “the cuff
would be strong enough to cause a linear laceration.” He opined that barotrauma was also a
remote possibility. When asked if he ruled out the possibility that surgical exposure, meaning
“the kind of surgical tugging, pulling, repositioning, retractions, et cetera” involved in the
underlying surgery, contributed to the injury, Austin replied, “Not the initial injury,” but he
agreed that exposure may have caused an enlargement of the laceration. Most pertinent to this
appeal, Austin agreed that the procedures, as documented by Aucilino, utilized in this matter
satisfied the applicable standard of care. He denied, however, believing those accounts: “I find
it very hard to rationalize how a lesion such as this could occur with what he describes as his
technique for intubating this patient.” Austin continued, “I think he pointed the tip of the tube to
the right and caused the 7-centimeter lesion along the right side of the trachea,” and elaborated,
“He turned the tube to the right, essentially clockwise 45 degrees, pointing the tip to the right
side of the trachea, causing the laceration.” When asked to explain the basis for that opinion,
Austin answered as follows: “The lesion itself being on the right side of the trachea, and that I
cannot rationalize how a tube which is turned to the left, which the tip is pointed to the left, could
have caused that sort of laceration,” and added that this was likely a “tip injury” given “the
length of the lesion and its proximity of cause of tracheal instrumentation, using a double-lumen
tube.” When asked for further clarification, Austin answered the following:

              Well, meaning cause and effect. Meaning there was a tube placed in the
       trachea, and she sustained a 7-centimeter laceration to the right side of her
       trachea. There was nothing else there except the tracheal tube. And the tip is the
       most likely cause of such a lesion, because I can’t think of any other part of the
       endotracheal tube that could cause that sort of lesion.

Austin expressly admitted that this opinion was based solely on speculation:             “Yes, I am
speculating. Yes.”

        Traverse Anesthesia eventually moved for summary disposition pursuant to MCR
2.116(C)(10), arguing that Dr. Austin’s testimony regarding malpractice as a potential cause of
Bindschatel’s injury was too speculative to create a genuine issue of material fact. The trial
court agreed. While the trial court acknowledged that Aucilino’s account was not established
fact in the sense that it could not be challenged by Bindschatel’s expert, it nevertheless granted
summary disposition because Austin’s opinion that medical negligence was more likely than not
the cause of the injury was supported only by speculation. This appeal followed.

         On appeal, Bindschatel argues that the trial court erred in granting summary disposition
pursuant to MCR 2.116(C)(10) because Austin’s testimony created a genuine issue of material
fact as to causation. We disagree.

         This Court reviews a trial court’s decision on a motion for summary disposition de novo
as a question of law. Ardt v Titan Ins Co, 233 Mich App 685, 688; 593 NW2d 215 (1999).
Summary disposition pursuant to MCR 2.116(C)(10) is appropriate “if the affidavits or other
documentary evidence show that there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law.” Decker v Flood, 248 Mich App 75, 81; 638 NW2d
163 (2001). “In reviewing a motion under MCR 2.116(C)(10), this Court considers the

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pleadings, admissions, affidavits, and other relevant documentary evidence of record in the light
most favorable to the nonmoving party to determine whether any genuine issue of material fact
exists to warrant a trial.” Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506 (2004).

        “ ‘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 negli-
gence of the defendant or defendants.’ ” Robins v Garg (On Remand), 276 Mich App 351, 362;
741 NW2d 49 (2007), quoting MCL 600.2912a(2). To establish proximate cause, the plaintiff
must prove both cause in fact and legal causation. Weymers v Khera, 454 Mich 639, 647; 563
NW2d 647 (1997), citing Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475
(1994). Cause in fact, which is at issue here, requires substantial evidence from which a jury
could conclude that, more likely than not, but for the defendant’s conduct, the plaintiff’s injuries
would not have occurred. Id. at 647-648. That is, the plaintiff must introduce evidence that
affords a reasonable basis to support the conclusion that, more likely than not, the conduct of the
defendant was a cause in fact of the result. Id. It requires more than a mere possibility. Id.
Indeed, speculation, conjecture, and probabilities, alone, are simply insufficient to withstand
summary disposition. Id. In reviewing the record, we discern only speculation, conjecture,
probabilities, and mere possibility offered by Austin on behalf of Bindschatel. Therefore,
summary disposition was appropriate.

        On appeal, Bindschatel relies on Robins in arguing that because Aucilino and Austin
disagree as to how her injury came about, a factual issue exists. But Robins is distinguishable
from the instant case. In Robins, a medical examiner opined that the cause of death was asthma
with a contributing cause of myocardial infarction, and the plaintiff’s expert, using the same
records and agreeing with the “objective findings” of the medical examiner, opined that the
cause of death was solely myocardial infarction. 276 Mich App at 363. This Court held that the
expert’s opinion did not contradict an established fact but instead offered a legitimate, non-
speculative, alternative interpretation of the medical examiner’s objective findings. Id. In this
case, however, the fundamental disagreement was over whether Aucilino turned a tube
improperly, causing it to come into contact with, and thus tear, the right side of Bindschatel’s
trachea. Austin speculated that this must have happened, but that opinion was not based on any
evidence beyond the existence of the injury itself. This is not a case where two doctors
examined the same records after an injury occurred and formed differing opinions from them.
Rather, it is one where one doctor was present and provided an account of what happened, and
another doctor speculated, after the fact, that something else probably happened based solely on
the presence of the injury. Thus, Bindschatel’s reliance on Robins is misplaced. Bindschatel
also relies, at least in part, on this Court’s opinion in Elher v Misra, 308 Mich App 276; 370
NW2d 335 (2014), but that decision was recently reversed by our Supreme Court. Elher v
Misra, ___ Mich ___; ___ NW2d ___ (2016) (Docket No. 150824). Additionally, the issue
presented in that case, “whether the circuit court abused its discretion by excluding plaintiff’s
expert medical testimony under MRE 702,” is quite different from the issue presented in this
case. Id. at ___; slip op at 2.

       Both before the trial court and before this Court, Traverse Anesthesia relies on
Badalamenti v William Beaumont Hosp-Troy, 237 Mich App 278; 602 NW2d 854 (1999), in
support of its position. In Badalamenti, the plaintiff argued that a cardiologist negligently failed
to diagnose and properly treat the plaintiff’s cardiogenic shock, which resulted in gangrene and

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multiple amputations. Id. at 281-282. To support that position, the plaintiff presented an expert
whose opinion was based on his “skepticism” of, and unwillingness to accept, the results of an
echocardiogram performed by a physician who was not himself accused of malpractice. The
expert conceded that if that initial test was, in fact, accurate in showing nearly normal heart
function, his opinion would be incorrect. Id. at 287-288. This Court reiterated that establishing
cause in fact “generally requires showing that but for the defendant’s actions, the plaintiff’s
injury would not have occurred” and that, “[t]o be adequate, a plaintiff’s circumstantial proof
must facilitate reasonable inferences of causation, not mere speculation.” Id. at 285 (citation and
internal quotation marks omitted; alterations by Badalamenti Court). We explained as follows:

               “The plaintiff must introduce evidence which affords a reasonable basis
       for the conclusion that it is more likely than not that the conduct of the defendant
       was a cause in fact of the result. A mere possibility of such causation is not
       enough; and when the matter remains one of pure speculation or conjecture, or the
       probabilities are at best evenly balanced, it becomes the duty of the court to direct
       a verdict for the defendant.” [Id. at 285-286 (citations and internal quotation
       marks omitted).]

“[A]n expert’s opinion is objectionable where it is based on assumptions not in accord with the
established facts.” Id.at 286. “This is true where an expert witness’ testimony is inconsistent
with the testimony of a witness who personally observed an event in question, and the expert is
unable to reconcile his inconsistent testimony other than by disparaging the witness’ power of
observation.” Id. While there are minor factual differences between Badalamenti and the instant
case, ultimately, those differences are not dispositive.

        The major distinction between the instant case and Badalamenti is that, in the latter, the
plaintiff’s expert was reviewing, and expressing skepticism over, an echocardiogram conducted
and interpreted by a practitioner, whose results were confirmed by similar tests under the
auspices of other practitioners, none of whom was the defendant cardiologist actually accused of
committing malpractice. 237 Mich App at 286-288. In contrast, it was the accounts of Aucilino,
whom Bindschatel identifies as the errant practitioner, that came under Austin’s scrutiny and
skepticism in this case. The trial court recognized this distinction, concluded that Traverse
Anesthesia thus fell short of presenting “established facts” for purposes of applying that aspect of
Badalamenti, and explained that “it is possible that a participant in a lawsuit will say things that
color the facts differently [from] what a fair statement would be.” The court’s reasoning in this
regard was sound. In Badalamenti, the defendant’s version of the facts was “established” in the
sense that the plaintiff’s expert’s skepticism was effectively directed at multiple practitioners
who were not otherwise accused of any malpractice, as if speculating that they were conspiring
to protect a colleague or coincidentally duplicating each other’s mistakes. In this case, however,
Traverse Anestheisa is attempting to characterize as “established facts” the accounts of Aucilino
who was suspected of malpractice, and who thus has obvious incentives to present his own
actions in the best possible light.

        Badalamenti remains instructive, however, in that it reiterates that “negligence is not
established if the evidence lends equal support to inconsistent conclusions or is equally
consistent with contradictory hypotheses.” 237 Mich App at 286. Here, in granting Traverse
Anesthesia’s motion for summary disposition, the trial court placed great emphasis on Austin’s
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testimony that the tracheal tear could have occurred even if Aucilino complied with the standard
of care and performed the intubation with the utmost care and diligence. The trial court was
specific in citing the deposition testimony it was relying on:
              Q. Okay. Would you agree, Doctor, that a tracheal injury, including a
       tracheal tear or rupture or whatever this is in this case, would you agree that that
       could occur, even in the absence of any malpractice or negligence on the part of
       the anesthesiologist?

               A. Yes.

              Q. Would you agree that it could occur even if that anesthesiologist does
       everything the same way he always does and the way he was trained and with the
       most utmost care and diligence that he can muster?

               A. Yes.

The trial court stated, “I have searched and I can’t find any finding here that would exclude this
nonmalpractice explanation of how the tear might have occurred, and that is also buttressed by
the testimony with respect to some special factors that might make the plaintiff in this case more
susceptible to this kind of tracheal damage.”

       Regarding those other factors, the trial court was again specific about the deposition
testimony of Austin upon which it was relying:
               Q. So if a patient is a former smoker and has COPD, you would agree that
       patient is at a higher risk of tracheal injury with intubation?

               A. Yes.

               Q. And is age a risk factor?

               A. Yes. It’s just a[n] older trachea. And again, you see a higher instance
       of tracheomalacia and atrophy of the walls of the trachea.

               Q. Is gender an issue at all in a risk assessment?

              A. Well, when it comes to gender, females generally have a smaller
       trachea, such that choosing the correct size of the tube in order to avoid some sort
       of damage to the tracheal walls must be considered. And—but as long as you
       choose the correct size, it would somewhat mitigate that gender bias.

                                                 * * *

               Q. Okay. With a history of pneumonias severe enough to be hospitalized,
       would that patient be at an increased risk for a tracheal injury with tracheal
       intubation?

               A. Yes.

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                                                  * * *

               Q. Do you know whether [Bindschatel has] ever been on steroid inhalers?

               A. I believe so, yes.

              Q. Can steroid inhalers increase the risk for tracheal tear, tracheal rupture,
       tracheal injury of any type during tracheal intubation?

              A. Again, just the general term of tracheal injury is about all I can say that
       it would contribute to; not necessarily rupture or any other type. But, yeah, it
       generally can decrease the integrity of the tissues in general and possibly even the
       trachea.

                                                  * * *

               Q. In other words, it’s easier to tear or rip?

               A. Again, tracheomalacia, yeah.

The trial court concluded as follows:
       [W]hen you have two possible explanations how an injury can occur one is
       malpractice and one is not malpractice or there are at least other explanations that
       are not malpractice that the opinion that it’s malpractice has to have more to it
       than that to show that it was due to malpractice rather than these nonmalpractice
       explanations that Dr. Austin agrees could well have produced the injury in this
       case.

        In her brief on appeal, Bindschatel admits that Traverse Anesthesia “was able to get Dr.
Austin to concede that some of Ms. Bindschatel’s prior medical problems or personal
characteristics might predispose her to a tracheal injury during an endotracheal intubation” but
protests that “the trial court opted to rely upon those concessions without realizing that Dr.
Austin was simply responding to carefully crafted hypothetical questions that were based solely
on the anesthesiologist’s self-serving testimony.” However, the context of Austin’s deposition
testimony plainly reveals that he was not entertaining abstract hypotheticals relating to how
certain personal habits or circumstances might affect a given individual’s susceptibility to
tracheal injury. Rather, the testimony reflects that he understood that he was being questioned
specifically about Bindschatel and how her history and other circumstances might have
contributed to the injury at issue. “[P]arties opposing a motion for summary disposition must
present more than conjecture and speculation to meet their burden of providing evidentiary proof
establishing a genuine issue of material fact.” Libralter Plastics, Inc v Chubb Group of Ins Cos,
199 Mich App 482, 486; 502 NW2d 742 (1993). Although Bindschatel’s expert plausibly
opined that her injury most likely resulted from the Aucilino “turn[ing] the tube to the right,
essentially clockwise 45 degrees, pointing the tip to the right side of the trachea, causing the
laceration,” he readily admitted that his theory was based solely on speculation and not on facts
in evidence. Indeed, while it is true that, as Bindschatel contends, “[c]ause in fact may be

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established by circumstantial evidence,” it is equally true that circumstantial evidence must not
be speculative. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 496; 668 NW2d 402
(2003). Austin’s testimony is precisely that—speculative.

        Accordingly, we conclude that, especially in light of Bindschatel’s special vulnerability
to tracheal injury as the result of her age, gender, and history of smoking, COPD, bouts of
pneumonia, and use of steroid inhalers, the trial court correctly recognized her theory of
malpractice as lacking sufficient evidentiary support. Thus, summary disposition pursuant to
MCR 2.116(C)(10) was appropriate. Additionally, while not expressly invoked by Bindschatel
on appeal, we would note that any argument relating to res ipsa loquitur is also unpersuasive in
light of Austin’s testimony that it was possible that Bindschatel suffered the injury at issue as a
result of non-negligent surgical procedures. See Cloverleaf Car Co v Phillips Petroleum Co, 213
Mich App 186, 193-194; 540 NW2d 297 (1995).

       Affirmed.

                                                            /s/ Deborah A. Servitto
                                                            /s/ Michael F. Gadola
                                                            /s/ Colleen A. O’Brien




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