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Radiologist not responsible for inaccurate diagnosis of cancer in healthy kidney

Review of the 17 page opinion of the Court of Appeals in Rodgers v. Taras, et al., is instructive for persons who are genuinely curious about the process of pursuing a medical malpractice claim in Michigan.  Rodgers sued because Kristin Kamienecki, D.O., diagnosed a non-cancerous hemorrhagic cyst on his kidney as "compatible with renal cell carcinoma," resulting in the removal of, as the trial judge explained,  "a healthy kidney."  Rodgers presented evidence that, in addition to the pain, expense and inconveniences of the unnecessary surgery, he also faced a lifetime risk of kidney disease and dysfunction in the remaining kidney.

At trial, the insurance attorneys presented a defense which caused the trial judge to evaluate their tactics for "game-playing," starting with the defense identifying an unlisted expert witness the Friday before trial.  The victim's attorneys objected when the defense belatedly informed them that the defense would be presenting the testimony of a follow-up care pathologist, pointing out that he had not been identified as a potential expert witness in conformity with the court's scheduling order.  As a result, the Plaintiffs had not taken his deposition or otherwise prepared for his cross-examination.  The trial judge rejected the victim's objections and allowed the pathologist to testify in support of the defense case--despite the defendants' failure to properly list the doctor as a potential expert witness.  The trial judge also rejected the Plaintiff's request for an opportunity to call an additional expert witness to rebut the matters testified to by the newly-identified expert. 

The plaintiff had previously asked the Court for a one-week delay in trial because the plaintiff's expert witness' practice schedule did not allow him to attend the trial in person on the previously-scheduled date.  The trial judge had also rejected this request.  The defendant had made a similar request relating to one of its expert witnesses; after the trial court rejected this request, and after a video deposition of the expert was taken in the lead-up to trial, this expert suddenly became available and the plaintiff's lawyers asked the judge to require the defendants to use her deposition testimony rather than allowing the defendants to treat the prior testimony as a mere "rehearsal."  The judge rejected this request, also, and approved her appearance live. 

The trial resulted in a verdict by the jury that the radiologist did not breach the standard of care in wrongly diagnosing the spot on Rodgers' kidney as "compatible" with cancer.  The Defendants then sought and secured an award of costs against Rodgers and Rodgers appealed.  Unfortunately for Rodgers, his lack of good fortune continued when he drew two of the most insurance-friendly judges in Michigan on his three-judge panel (i.e., Kirsten Kelly and Henry Saad).

Rodgers' attorneys appealed the above rulings and also objected to the defense experts' use of reconstructed (colored and enlarged) coronal and sagittal images of Rodgers' CT scan to embellish their testimony.  Rodgers' attorneys further argued that the defendants were wrongly allowed to elicit radiology testimony from their expert urologists; that the defendants inappropriately admitted evidence of a prognostic Canadian study that did not include patients having only a single kidney; and that the verdict was against the great weight of the evidence.  The defendants cross-appealed, arguing that they should have been awarded more money in taxable costs.

Not surprisingly, the Appeals Court panel found nothing objectionable in the lower court management of the case and affirmed the verdict for the radiologist.  The appellate judges decided that the trial judge did not abuse his discretion in ruling on the witness and evidentiary issues, and pointed out that since the plaintiff's attorneys had not asked for a new trial immediately after the verdict, they could not demand one on appeal.

Perhaps the one surprise in the appeal was the appellate court's refusal to increase the taxed costs demanded by the doctors' insurance company.  Apparently, the judges were somewhat sympathetic to the frustration expressed by the trial judge when he rejected the defendants' inflated demands.  At the time of the cost hearing, the trial judge described the first expert's billing as "offensive [$5,000.00 for one hour]...his whole bill is unreasonable as it stands and...denied."  He noted that $900 per hour for the second expert was also unreasonable and awarded only $1500.00 in reimbursement for that expert's testimony.  With regard to the third, the judge pointed out that "You have a no cause on a case where a healthy kidney is removed.  So if you're all trying to pile on to a plaintiff, who most likely is going to end up filing bankruptcy over this whole thing, that's bring [the third expert] down here..." to explain her bill.  Since the Defendant never attempted to schedule that hearing, the appellate judges approved the costs awarded by the trial judge and rejected the insurer's demand for increased costs.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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