                             STATE OF MICHIGAN

                             COURT OF APPEALS


DANIEL WALKER and NANCY WALKER,                                    UNPUBLISHED
                                                                   October 18, 2018
               Plaintiffs-Appellees,

v                                                                  No. 337824
                                                                   Oakland Circuit Court
WILLIAM BEAUMONT HOSPITAL and SAID                                 LC No. 2015-145904-NH
HAFEZ KHAYYATA, M.D.,

               Defendants-Appellants.


Before: JANSEN, P.J., and METER and STEPHENS, JJ.

JANSEN, P.J. (dissenting).

        Because I believe summary disposition should have been granted in favor of defendants, I
respectfully dissent. In my view, much of the expert witness testimony on causation was
speculative, and speculative arguments are insufficient as a matter of law to establish a genuine
issue of material fact to avoid summary disposition. Lathan v Nat’l Car Rental Sys, Inc., 239
Mich App 330, 336; 608 NW2d 66 (2000).

        In a medical malpractice action, it is plaintiff’s burden to prove that he “suffered an
injury that more probably than not was proximately caused by the negligence of the defendant or
defendants.” MCL 600.2912a(2). A plaintiff must establish proximate causation between the
alleged breach of the standard of care and the injury. Craig v Oakwood Hospital, 471 Mich 67,
86; 684 NW2d 296 (2004), and must present expert testimony to establish causation. Kalaj v
Khan, 295 Mich App 420, 429; 820 NW2d 223 (2012). Proximate cause is a legal term of art
that encompasses both cause in fact and legal cause. Craig, 471 Mich at 86. “As a matter of
logic, a court must find that the defendant’s negligence was a cause in fact of the plaintiff’s
injuries before it can hold that the defendant’s negligence was the proximate cause or legal cause
of those injuries.” Craig, 471 Mich at 87. “The cause in fact element generally requires
showing that ‘but for’ the defendant’s actions, the plaintiff’s injury would not have occurred.”
Id. at 86-87. Showing causation requires more than a mere possibility or a plausible explanation;
the plaintiff must produce sufficient evidence to establish “a reasonable inference of a logical
sequence of cause and effect.” Id. at 87. A valid theory of causation must be based on facts in
evidence. Id. While the “evidence need not negate all other possible causes,” it must “exclude
other reasonable hypotheses with a fair amount of certainty.” Id. at 87-88.



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        Plaintiffs’ theory of causation is that Dr. Said Khayyata erroneously interpreted slides
from plaintiff’s April 18, 2018 FNA biopsy as showing cancer, and that this misdiagnosis by Dr.
Khayyata caused plaintiff to undergo completely unnecessary surgery to find and remove cancer
which was not there. However, based on my review of the record, plaintiffs have failed to
present expert testimony sufficient to support their theory of causation. Plaintiffs’ first expert
witness, Dr. Michael Finfer, testified that the slides showed cancer, but theorized that the cancer
cells came from another source and were probably endocervical cells from a different patient.
However, Dr. Finfer admitted at deposition that his explanation was “just speculation” and “an
educated guess.” In short, Dr. Finfer’s expert opinion was not based on evidence and did not set
forth specific facts which would support logical inferences, but instead merely provided a merely
possible or plausible explanation. This is insufficient to establish causation.

        Plaintiffs’ second expert witness, Dr. Aaron Feliz, disagreed with Dr. Finfer. Dr. Feliz
did not believe that the slides were contaminated by cells from an unknown third party. Rather,
Dr. Feliz admitted that a pathologist reviewing the slides could reach one of four separate
conclusions, including the conclusion that the slides showed squamous cell carcinoma. While
Dr. Feliz testified that he thought the slides showed degenerative atypia rather than cancer, he
admitted that he could not say within a reasonable degree of medical certainty that the slides did
not show cancer. Accordingly, Dr. Feliz’s testimony was also insufficient to establish causation.

        Based on the foregoing, I would conclude that plaintiffs have failed to establish
causation, an essential element of their medical malpractice claim. Therefore, I would reverse,
and vacate the trial court’s March 17, 2017 order denying summary disposition, and remand for
entry of an order granting summary disposition in favor of defendants.


                                                            /s/ Kathleen Jansen




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