Strasser v. Oakwood Heritage Hosp.

TRAVIS STRASSER, Plaintiff-Appellee, v. OAKWOOD HERITAGE HOSPITAL, OAKWOOD HEALTHCARE, INC., BEAUMONT HOSPITAL-TAYLOR, BEAUMONT HEALTH, and BEAUMONT HEALTH SYSTEM, Defendants, and GOKUL RAGHUNATH TOSHNIWAL, M.D., and ANESTHESIA ASSOCIATES OF ANN ARBOR PLLC, Defendants-Appellants

No. 355496

Court of Appeals of Michigan

November 4, 2021

UNPUBLISHED

Wayne Circuit Court LC No. 18-014954-NH

Before: Jane E. Markey, P.J., and Beckering and Mark T Boonstra, JJ.

Per Curiam.

Defendants Gokul Toshniwal, M.D., and Anesthesia Associates of Ann Arbor PLLC appeal by leave granted^[1] the trial court's order denying their motion to strike plaintiff Travis Strasser's expert witness. We reverse and remand for entry of an order striking plaintiff's expert witness.

I. BACKGROUND AND PROCEDURAL HISTORY

In his complaint, plaintiff alleged that on June 8, 2016, he went to defendant hospital^[2] "for the purpose of care and treatment, more particularly an open reduction and internal fixation of his fractured left patella." Plaintiff contended that he "clearly and specifically informed all Defendants that he did not want any spinal or regional blocks for post-operative pain control." (Emphasis omitted.) The anesthesiologist for the surgery was Dr. Toshniwal. Plaintiff alleged that despite his directive that no nerve block be used, Dr. Toshniwal, shortly after the surgery was completed, performed "a post-operative regional block of the left adductor canal" absent properly-obtained informed consent.^[3] Plaintiff maintained that Dr. Toshniwal subverted plaintiff's wishes by obtaining purported informed consent from other persons or plaintiff's family members. Plaintiff further alleged that the adductor canal block directly caused severe "left femoral neuropathy," resulting in the loss of "motor activities in the left leg, atrophy, pain, decreased sensation distribution, and numerous other problems."

In support of his medical malpractice complaint, plaintiff attached an affidavit of merit executed by Robert A. Savala M.D. Mirroring language in the complaint, Dr. Savala averred that Dr. Toshniwal breached the applicable standard of care by failing to obtain informed consent from plaintiff ignoring plaintiff's stated desire for no spinal or regional nerve blocks, supplanting plaintiff's wishes by obtaining consent from others, failing to explain the risks of doing a nerve block, including femoral neuropathy, and by not offering alternatives for pain control other than the adductor canal block. Neither in the complaint nor the affidavit of merit was it asserted that Dr. Toshniwal committed medical malpractice with respect to the actual performance of the adductor canal block. Dr. Savala and Dr. Toshniwal are both board-certified in anesthesiology and in the subspecialty of pain medicine.

According to defendants, plaintiff was treated with three narcotics, but he screamed and shouted about continued pain while he was in the post-anesthesia care unit (PACU). Dr. Toshniwal informed plaintiff that the opioid pain medications that he was receiving could not be given in higher doses, and the two then discussed the possibility of an adductor canal block being performed. Plaintiff allegedly told Dr. Toshniwal to do whatever he needed to manage the pain. Dr. Toshniwal obtained written consent from plaintiff's fiancée and administered the nerve block. Defendants claimed that a postoperative nerve block is commonly administered by an anesthesiologist to relieve pain related to the surgery.

In a motion to strike Dr. Savala as an expert witness, defendants argued that Dr. Savala was not qualified to testify against Dr. Toshniwal. In his deposition, Dr. Toshniwal testified that 30 to 40 percent of his practice concerned pain medicine, while 60 to 70 percent was devoted to anesthesiology. He performed three or four hundred nerve blocks every year. In answers to interrogatories, Dr. Toshniwal indicated that he provided "anesthesiology care and treatment [for plaintiff] during surgery and post-surgery on June 8, 2016." When asked at his deposition whether someone else could have provided different relief to plaintiff at the time, Dr. Toshniwal responded, "I'm the anesthesiologist." Dr. Toshniwal testified that he was present throughout the entire surgical process, including the period that plaintiff was in the PACU. Dr. Toshniwal observed that "[p]ostoperatively the opioids administered were not effectively managing Plaintiff's pain safely[;] [t]herefore, alternatives such as an adductor canal block were discussed with Plaintiff, his significant other, and the surgeon."

In his deposition, Dr. Savala testified that for many years 100 percent of his time was devoted to managing acute and chronic pain. According to Dr. Savala, some of his work takes place at an outpatient surgery center where various types of surgeries are performed. He indicated that he performs nerve blocks three days per week in his practice. Dr. Savala noted, however, that he had not performed a femoral nerve block, which would encompass the adductor canal block, in a dozen years. When asked why he had not done so, Dr. Savala explained:

Well, because when it comes to those procedures, the operating room anesthesiologists are typically the ones that are providing those services. I'm providing, you know, nerve block procedures for the diagnosis and treatment of acute chronic pain problems; whereas, these femoral nerve blocks are most commonly used in preparation for perioperative treatment.

Dr. Savala further testified as follows:

Q. I said I'm describing femoral blocks as being used to treat acute pain. You're calling it perioperative pain, but it's not chronic pain, correct?

A. Well, what we typically do is that you are putting in these regional blocks, we call them peripheral nerve blocks, you know, whether that was femoral or . . . .

Q. Right.

A. [T]hose will typically be done preoperatively and in anticipation that you're going to use the pain relief, the analgesia and the anesthesia that you get from it, to aid in the performance of surgery and then to help treat postoperative pain. So we usually put them in before the case begins, but in some cases we use them afterwards, like in the case of [plaintiff].

Q. Right. I've got it. Can we call the block that was done here a regional block?

A. Yes, you can.

Q. When is the last time that you performed a regional block to assist with the perioperative pain and postoperative pain?

A. Oh, boy, that was probably - oh, I'd say the last time I was in the operating room, so that was about a dozen years ago.

Dr. Savala asserted that the adductor canal block in this case was done for pain management. Dr. Savala testified about what "an experienced and professional anesthesiologist understands [regarding] possible scenarios . . . in controlling postoperative pain . . . ." He noted that "in anesthesia, more than any other field of medicine, [you must] really make sure that you understand the course of what's happening, because many times patients are incapacitated or unable to answer . . . questions." Dr. Savala opined that Dr. Toshniwal could have handled things differently in the operating room, such as administering longer-lasting opiates. Dr. Savala was of the view that Dr. Toshniwal had not communicated well with plaintiff before the surgery.

In the motion to strike, defendants argued that Dr. Toshniwal is a board-certified anesthesiologist who, although board-certified in the subspecialty of pain medicine, spends the majority of his time practicing anesthesiology. Therefore, according to defendants, anesthesiology and not pain medicine is the one most relevant specialty applicable to the instant case. Because Dr. Savala spent nearly 100 percent of his time in the practice of the subspecialty of pain medicine in the preceding 12 years, defendants maintained that he was not qualified to offer his testimony regarding the standard of care in this action.

Plaintiff responded that the case involved a pain-medicine procedure, not general anesthesia. Plaintiff pointed out that Dr. Toshniwal was the Pain Consultant Chairperson at Beaumont Taylor Hospital. Plaintiff argued that Drs. Toshniwal and Savala shared the same qualifications and that defendants were attempting to disqualify Dr. Savala merely because he spent the majority of his time in pain medicine. According to plaintiff, Dr. Toshniwal was performing postoperative pain medicine as indicated in his deposition. Plaintiff maintained that the pertinent conduct at the time of the alleged malpractice involved the management of pain, not anesthesiology in general. Plaintiff further noted that the action concerned informed consent rather than the surgery itself. In the alternative, plaintiff requested that the trial court allow him to amend his witness list if the court found merit in defendants' position. In challenging the motion to strike, plaintiff included an affidavit from Dr. Savala, which was separate and distinct from his affidavit of merit, averring that because the nerve block was performed after plaintiff's surgery, it was not related to the anesthesia given plaintiff by Dr. Toshniwal.

Defendants replied that the lawsuit involved anesthesiology, not pain medicine, and that anesthesia services entail postoperative nerve blocks. Defendants argued that management of a patient immediately before, during, and right after surgery is within the realm of an anesthesiologist, whereas pain medicine involves the management of chronic pain. Defendants emphasized that Dr. Savala had not performed the type of postoperative adductor canal block used in this case in over ten years because he had not been practicing anesthesiology.

At the hearing on the motion to strike Dr. Savala, the trial court...