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Michigan Supreme Court dismisses breast cancer case; victim's oncologist's reliance on ACS statistics

Tracy Edry sued her doctor, Marc Adelman, D.O., for medical malpractice.  She claimed that after she brought to Adelman's attention a small lump in her breast, he took no action to monitor it or to schedule follow-up appointments.  Roughly two years later, Edry's lump had increased from 3 mm in size to an invasive tumor that now involved 16 lymph nodes.  She underwent a radical mastectomy, three rounds of chemotherapy and radiation, and by all accounts faces a dramatically reduced life expectancy.

Nevertheless, the trial court threw out Edry's oncologist expert and then dismissed her malpractice claim.  Edry's two O.B.Gyn. experts testified to the breach of the standard of care but deferred to an oncologist any discussion of the impact of the two year delay in diagnosis.  Relying on a general summary of the related literature, Edry's oncologist testified that the delay in treatment reduced Edry's five-year survival expecatation from a 95 percent probability of survival to less than 20 percent.  The Defendants responded with the testimony of a second oncologist who argued that the American Joint Cancer Commission manual offered a 60% probability of five-year survival for women with 4 or 5 positive nodes and claimed that Edry's expert was wrong to use the number of positive lymph nodes in Edry's body [16] to predict an even poorer likelihood of survival.  The case was shaping up as a classic "battle of expert opinion" with the jury to decide how much weight to give each expert's analysis.

Things changed quickly, however, when the Doctor's insurer sought to exclude Edry's oncologist's opinions and argued that Edry had not presented adequate scientific research in the medical literature to support her oncologist's opinions.  Her attorneys were either over-worked or a little over-confident and did not immediately respond with either precise literature citations or an affidavit from their expert explaining how he arrived at his life expectancy estimates.  After a hearing, the trial court entered an order striking the plaintiff's expert opinion testimony. 

On rehearing, Edry's attorneys did attempt to supplement the record, but the trial court  [and ultimately, a majority of the Supreme Court] deemed the record still inadequate to allow the oncologist to offer his opinions.  As a result the case was permanently dismissed.  On appeal, Edry's lawyers argued that the Court applied much too high a threshold barring the Oncologist's opinions from evidence, noting that the opinions were based on statistics from the American Cancer Society website and the American Joint Commission on Cancer.  Edry also argued that she should have been able to prove that the delay in diagnosis dramatically affected the treatment she was required to undergo.

Five members of the Supreme Court rejected Edry's appeal.  They held that she needed the testimony of the dismissed oncologist to support even her claim of a radically altered treatment plan.  The majority also pointed to the Court's prior holding from the "Engler Majority" era, in Wickens v. Oakwood Healthcare System to uphold its decision.  Wickens had held that no possible reduction in life expectancy can justify a malpractice claim if the patient is still alive:  "This Court has held that a reduced chance of survival alone is not a cognizable injury...[thus, Edry] did not provide sufficient evidence to prove that these decreased odds resulted in a present injury."

Justices Weaver and Hathaway agreed with Ms. Edry that the Court's majority was usurping the Constitutionally-defined role of the jury and engaging in an inappropriate weighing of the expert testimony by misapplying the statutory foundation for expert and scientific testimony.  They noted that a breast cancer victim cannot cite particular medical research "directly" demonstrating the rate of growth of a particular cancer because it would be unethical to conduct such research on patients.

So, a woman who is presumed (at this stage of proceedings, based on her O.B.Gyns' testimony) to have been provided poor care, cannot sue because there is a public policy in Michigan that rejects even an enormous loss of five-year life expectancy, as a viable claim for a malpractice victim.  Talk about activist judges!  What Michigan elected representatives voted to adopt this policy?  We suspect that if a majority of the Supreme Court were women at greater risk of breast cancer, this outcome would be different. As matters stand, it represents a tragedy and a miscarriage of justice for all cancer patients who present a well-documented delay in diagnosis and treatment, but can only present "indirect" evidence of the resulting impact.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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