Jacqueline Maness sued the Carlton Pharmacy and a company hired to mop its floors, alleging that she hadn't been adequately warned of the slippery, wet floor on which she fell, suffering serious injury. Initially, her claim was dismissed on appeal, after the defendants claimed that the trial court should have found the condition of the floor to be an "open and obvious" danger. The Supreme Court reversed, however, noting that Maness' claim against the cleaning company, which was not in possession of the drugstore premises, could not be evaluated under the "open and obvious" doctrine, since that doctrine applies only to hazards maintained by a landowner/possessor. The claim against the cleaning agency was sent back to the trial court to be evaluated on the basis of negligence and comparative fault.
Continue reading "Court dismisses claim arising out of fall on freshly-mopped floor" »
In a complicated case, Ruth Webb's car shuddered and vibrated after it was repaired following a minor collision. She complained repeatedly to Progressive Insurance and Adrian Dodge, the entity that was paid to fix the front end. Adrian Dodge claimed it couldn't find anything else wrong and Progressive claimed that any additional problems with the car related to normal "wear and tear." Webb had the vehicle examined by other mechanics who confirmed collision damage, but when she sued Adrian Dodge in Small Claims to compel it to complete the repairs, the magistrate ruled against her.
A few weeks later, she lost control of the car when it began vibrating and Webb was badly hurt in a collision. A mechanic who examined the vehicle found damage in the left tie rod socket and steering knuckle that he felt was related to the original collision and the vibration problem--and which he believed caused the second collision.
Continue reading "Woman can sue dealership for failing to identify needed repairs" »
Yesterday, a grand jury indicted the Kalamazoo medical product company and its CEO from 2004 through 2008, for fraud. The defendants are accused of promoting the use of its bone growth "OP-1 putty" [called Calstrux] and OP-1 implant for uses not approved by the FDA. Use of the mixture caused "serious medical problems" for some patients, according to the federal prosecutor. The product was originally approved under a "humanitarian device exception" to treat a condition affecting fewer than 4,000 patients.
Malpractice victims are required to file a detailed "Notice of Intent" six months prior to suing a health care provider in Michigan. When the victim's suit is filed, it must be accompanied by Affidavits of Merit signed by appropriately specialized physicians or experts. For the past eight years, the medical profession enjoyed a field day before the "Engler Majority" of the Michigan Supreme Court, consistently dismissing viable, meritorious claims based on alleged technical deficiencies in the Affidavits or Notices.
Applying the Engler Majority standard, lower courts felt compelled to dismiss claims for all manner of minor procedural deficiencies, and the reported malpractice cases became an incantation of dismissals that never reached the substance of victim claims. That practice changed this summer when the Supreme Court adopted a more reasonable stance, consistent with statutes and rules of pleading, allowing amendment of good faith notices and affidavits to cure minor defects. This week, the Supreme Court sent three more cases back to the lower courts, rejecting technical dismissals.
Continue reading "Supreme Court repudiates hyper-technical examination of malpractice notice of intent" »
William Junge created a business with James Bartles and Oscar Burrell, with each man being a one-third owner. They were stunned when they did more than a million dollars worth of business in the first year, moving and installing equipment. Apparently, the business was destroyed by its success, as disputes arose over use of credit cards, withdrawal of profits and job performance. Ultimately, Bartles and Burrell opened a new, competing business using the same employees and serving the same customers, but without Junge as an owner. He sued, alleging an equitable claim of ownership in the new company. While he was denied treble damages or attorney fees, the Court of Appeals upheld the lower court's award of one-third of the book value of the new business.
The trial court originally ruled that Jenne Ott was entitled to PIP benefits from Progressive Michigan Insurance Co., because Progressive had insured the vehicle in which she suffered injuries as a passenger. Progressive argued, however, that the woman who purchased its insurance policy might not have enjoyed an ownership interest in the car, and therefore Ott should collect PIP benefits from the Assigned Claims plan (because Progressive should be allowed to cancel the insurance).
Continue reading "Insurer wins appeal: injury victim's right to PIP benefits must be determined by jury" »
The death and autopsy of 42-year old Western Illinois football player Mike Borich added fuel to the evidence that repetitive blows to the head playing football can cause chronic traumatic encephalopathy (CTE), a condition similar to that suffered by many boxers. The pathology of Borich's cerebral cortex demonstrated widespread damage to the former Chicago Bears and Brigham Young University assistant football coach. This adds to the evidence found on autopsy of eight NFL players who died between the ages of 36 and 52: most exhibited extreme emotional problems and all exhibited irregular protein deposits and neurofibrillary tangles in the "thinking" or "executive function" and judgment locations of the brain. It is thought that the physical condition leads to depression and substance abuse in many subjects. While there may be a genetic predisposition toward the development of this condition, neurologists from the Boston University School of Medicine and the Rockefeller Neuroscience Institute took pains to emphasize that the condition can only be caused by physical trauma.
The CPSC recently rejected voluntary safety standards suggested by manufacturers of 4-wheel ORVs, finding them inadequate. Instead, it will take testimony from the industry and the public and compose independent standards. It noted that the side-by-side off-road vehicles, capable of speeds in excess of 35 miles per hour, are involved in a disproportionate number of deaths and injuries. In March, Yamaha recalled 100,000 of its Rhino models for repairs, after two models were linked with 46 deaths in six years. The vehicles pose a substantial roll-over risk and have been associated with 116 deaths and many serious injuries since 2003. Many of the victims have been children. Industry spokesman suggest that the deaths are merely the result of owners' unsafe use.
The family of Elizabeth Kitchen sued her doctor, Michael Dargay, D.O., for malpractice which they alleged caused her death. Experienced case evaluators placed a compromise settlement amount of $125,000.00 on the case against Dargay, but his insurer and the family both rejected the compromise. Oakwood Hospital paid $17,500.00 to settle claims that it was vicariously responsible for Dargay's negligence and the family and doctor went to trial, where the jury refused to hold Dargay responsible for the death. Dargay then sought $42,000.00 from the Estate for his legal fees and expenses.
Continue reading "Doctor's attempt to sanction estate of patient who sued for malpractice is defeated" »
The U.S. government began investigating Pfizer's illegal activities in promoting Bextra--a pain killer since removed from the market--in a criminal action arising out of the government's payment of medical expenses for its beneficiaries. Ultimately, the U.S. Attorney concluded that Pfizer was illegally promoting Bextra and other drugs to doctors through kickbacks and other illegal practices that included marketing the drugs for uses not approved by the FDA. The claim was recently resolved by agreement of Pfizer to pay $1.3 BILLION dollars in civil and criminal fines. Given that Pfizer reported revenues of $48.3 billion dollars in 2008, this kind of punishment is unlikely to phase the company's executives or deter future illegal activity of this nature. Bextra was removed from the market because it was implicated in an unreasonble number of heart attacks and strokes among pain-relief users.
Helga Rose sued her neighbors, the Braciszewski family, claiming that their twice-annual burning of lawn waste created a battery to her and a nuisance to her property because the smoke entered her home and exacerbated her pre-exisiting respiratory problems. The Court held that the standard is an objective one, meaning that if the smoke would not have constituted an unreasonable trespass that "substantially impair[ed] the comfort or enjoyment of adjacent premises" it was not actionable. On this basis, the Court denied Rose any relief for nuisance. It also held that she could not prove that the Braciszewski family intended the smoke to come into contact with her, and therefore no legal "battery" had occurred. She was denied any financial compensation and also denied the right to enjoin the day-long burning.
Claims against the federal government, or its agents and employees, are handled through a semi-administrative procedure called the Federal Tort Claims Act. The injured or aggrieved victim must file an administrative claim, and if dissatisfied with the resolution may then file a Federal District Court non-jury action. The law to be applied follows the civil law of the State that is the location of the injury. Thus, when Janyce Brown filed a malpractice-type claim arising in Michigan, the Federal Court for the Eastern District of Michigan following Michigan's malpractice law in deciding it. Brown had argued that she and her children were exposed to a parasitic disease called Leishmaniasis because her husband (the kids' father) had carried the disease home from the First Gulf War. The disease is spread through bites of an infected sand flea and is common in the Middle East.
Continue reading "Federal Tort Claim dismissed as government owes no duty to soldier's family" »
Timothy Blount sued Jean Marie PIerre, M.D., Blount's family doctor, alleging that Pierre was negligent in attempting to biopsy a suspicious lesion on Blount's tongue. Blount's attorneys demonstrated confusion in filing two separate claims against Pierre, one alleging that Pierre was a General Practitioner and a second alleging that he was a Family Practice specialist. Ultimately, they moved forward on the allegations of negligence by a General Practitioner, which required them to provide expert testimony from a comparably-credentialed physician familiar with the "local" community standard of care.
Continue reading "Malpractice claim dismissed when victim's doctor mis-states basis of his opinion" »
Earlier on this website, we reported on litigation involving the Ludington Holiday Inn, where a family suffered a toxic exposure as a result of a problem with the heating system. AutoOwners insured the Inn but refused to defend the injury claims against the Inn, arguing that they fell within an exclusion for injuries caused by pollution. The trial court rejected that argument, and enforced an exception for "heating equipment" in the policy language applicable to the pollution exclusion. The lower court also awarded the Inn and the injured family significant attorneys fees and costs.
Continue reading "Ludington Holiday Inn case sent back to lower court to address fees owed by AutoOwners" »
Christine Blue fell on ice in the parking ramp at St. John Hospital. She filed an injury claim (probably in the hope of recovering enough to pay the St. John's bill for treating her). The Court of Appeals this week overturned the trial court and held that Blue cannot sue. Two of the three judges felt that there wasn't adequate notice of the icy conditions to hold the hospital responsible, and also applied the "open and obvious" doctrine to her claim. The latter doctrine is an "Engler Majority" monstrosity that relieves a landowner of any duty to eliminate a hazard that would be visible to a visitor on casual inspection.
Continue reading "Slip and fall in parking ramp cannot be pursued as ice was "open and obvious"" »
Raymond Andres was horribly injured in a car accident and now requires 24 hour attendant care. State Farm was his auto (PIP) insurer and has been obligated to pay for this care. State Farm initially entered into an agreement to pay Andres' family for the care provided, but later refused to pay, alleging that the agreement had been fraudulently arrived at by some form of collusion between Andres' attorney and State Farm's adjuster.
Continue reading "Supreme Court reverses lower court decision; allows State Farm to claim fraud" »
Patrick McCarthy was involved in an ugly divorce and custody battle when his ten- and eleven-year old daughters made complaints of inappropriate sexual contact to their daycare provider. The family was forced to undergo a thorough investigation by human services and police agencies and McCarthy was charged with 2d degree Criminal Sexual Conduct. Just prior to the commencement of a criminal trial against McCarthy, the girls recanted their claims, and both the criminal case against McCarthy and the child protective proceeding were dismissed. McCarthy then sued the agencies and the involved individuals, arguing that investigators should have known that the complaints arose out of the custody battle and dismissed them without an investigation. The Court of Appeals rejected McCarthy's reasoning and concluded that the state actors were immune from liability because the girls' claims created "probable cause" for an investigation that was not motivated by malice.
Kristi Fries lost both hands above the wrist when the stamping machine she was operating cycled in response to her loose clothing. She sued her employer, Mavrick Metal Stamping, arguing that it was responsible beyond workers compensation benefits because it had intentionally caused her injury. An employer in Michigan is immune even from gross negligence or willful misconduct, if an employee is covered by workers compensation: the courts have been exceedingly slow to allow employees to recover more than medical and partial wages, no matter how egregious the employer's fault is causing an injury. The Court of Appeals allowed Fries to recover outside work comp, however, after reciting the facts leading up to her horrible injury.
Continue reading "Employer held accountable, beyond workers compensation, for traumatic amputation" »
On September 23, the Equal Employment Opportunity Commission published its proposed new regulations for administering the Americans with Disabilities Act, which was amended effective January 1st. According to experts, the new regulations will "significantly lower the standard for an employee to establish that he or she has a covered disability." The amendment is expected to move the interaction under the ADA from a fight over whether an employee is qualified for consideration under the act to a fight over the employer's duty to make reasonble accommodations. From the amendment forward, the employee's proofs will primarily be directed to whether the "diability" limits an employee's ability to work or is perceived to perform his or her job. The new regulations will also take into account "mitigating measures" such as medication, eyeglasses, hearing aids and other measures which formerly precluded an employee from qualifying as "disabled" and eliminated any duty of accommodation.
The mayor of Potterville in Eaton County became embroiled in a dispute with the City Treasurer and Deputy Treasurer, who criticized the city manager's bookkeeping practices. The mayor, Julia Nelson, eventually called the Deputy Treasurer, Donna Hannahs a "liar" in an exchange questioning whether Hannahs had disclosed to another city employee that a closed meeting had been held at the last council meeting. Hannahs was later fired after no wrongdoing was attributed to the city manager, and Hannahs sued Nelson for defamation. The Court concluded that whether or not Nelson had defamed Hannahs by calling her a liar, the comment, as part of an ongoing public investigation, was cloaked in governmental immunity. She was "the highest elected official of the city and acting in her legislative capacity as a member of the City Council when she made the challenged remark."
Several weeks ago, we reported on the Lockridge v. Oakwood Hospital and Donald R. Schipper, M.D., decision. Scarlett Lockridge had sued the defendants and achieved a modest verdict after Schipper mis-diagnosed and mis-treated her son. The Lockridge boy suffered chest pains, vomited and lost consciousness on his way to the school bus. Schipper diagnosed his problem as anxiety and prescribed him Toradol and valium. Lockridge's expert physicians claimed that Schipper should have ordered a chest x-ray, and that if he had, the aortic abnormality which killed young Lockridge would have been discovered and successfully treated before it ruptured.
Continue reading "Court decides to publish malpractice decision regarding forseeability and causation" »
The medical malpractice rules require an injury victim to file a Notice of Intent, explaining to the health care providers precisely why and how the victim believes he was mis-treated. The alleged victim must then delay six months before filing suit against the health care providers. In Sheila Ellout v. Detroit Medical Center, Ellout's attorneys apparently mis-read the complicated pleading rules and filed suit against the allegedly responsible nurse before the appropriate time period had run. The Ellout's death claim was then dismissed with prejudice (meaning the decision was a final decision on the merits) by the lower court.
Continue reading "Court examines impact of early filing of malpractice claim " »
Roderick Booth sued the Department of Corrections, alleging that he was wrongfully denied his constitutional rights, when he was punished by the DOC for misconduct in his jail cell. He had never appealed the administrative finding of misconduct, and on that basis, his claim of a 42 USC 1983 violation of civil rights was dismissed. His argument that the adminstrative procedure was biased and a denial of due process could not form the basis for a separate legal action because he had not challenged the original decision on appeal.
Judges Christopher Murray, Jane Markey and Stephen Borrello wrapped up a good month for the insurance industry by ruling against Linda Berishaj on her "serious impairment" claim. The judges found a basis to throw out each of the injury cases on their docket, completing a "clean sweep" on Friday by dismissing four cases. In Berishaj v. Shkreli and Auto Club, the judges ruled that a woman injured in a car accident couldn't sue the at-fault driver, even though her injury was objectively manifested and signficantly impaired her ability to walk. The evidence showed that Berishaj was confined to a wheelchair for five months, used a walker for five more, and then began using a cane to ambulate: the judges concluded this was not adequate proof to demonstrate that she had suffered a "serious impairment of bodily function."
Judges Chris Murray, Jane Markey and Stephen Borello completed a "clean sweep" last Friday, when the ruled against four more injury victims and dismissed four more lawsuits. Earlier in the week that had dismissed several other appeals brought by injury victims.
One of Friday's decisions was the dismissal of an appeal filed by the widow of a man who had been transported to his local hospital with chest pain. In the Plainwell E.R., the examining doctor could not decide whether the pain was caused by heart problems or a possible rupturing aortic aneurism, and consulted with Sualeh Ashraf at Borgess Medical Center. The two doctors arranged for the decedent to be transported to Borgess for treatment, where the examining physicians concluded that he was in fact experiencing an extensive aortic dissection. Borgess cannot treat this condition, so he was now transported to the University of Michigan. He died at the latter hospital after a 14 hour repair surgery.
Continue reading "Doctor who accepts E.R. transfer of heart patient owes no duty " »
Zoran Saveski attempted to sue the Ford Motor Company, alleging that he suffered injury as a direct result of intentional misconduct by a supervisor. Saveski , a toolmaker, was directed to assist with maintenance on a "Lamb" machine while the plant was shut down. During maintenance, he was left holding a 100 pound component, causing a blown disc. He maintained that the supervisor intentionally placed him in a position likely to cause injury. The Court held that he had not pleaded sufficient facts to document an exception to the workers comp "exclusive remedy" provision applicable to injuries suffered at work. In order to avoid that provision and sue his employer for negligence, Saveski would have needed to show that the supervisor actually intended his injury; it was not enough to show that an injury was "likely" or "probable".
Rhonda Green sued several police officers after she was arrested in the Buffalo Wild Wings parking lot. She had been involved in an altercation with her cousin over ownership of an article of clothing, and the altercation had drawn a crowd of 150 people. Police acted appropriately in arresting Green, and the judges concluded that they also responded appropriately to Green resisting arrest. Judge Beckering did point out that under the law, it was the duty of the individual deputies to plead and prove that they were entitled to governmental immunity for their actions.
Judges Christopher Murray, Jane Markey and Stephen Borello, constituting a panel of the Court of Appeals, handed down several opinions this week, all of which managed to result in victories for an insurance company. Among them: the dismissal of Gunnard Kyllonen's injury case against William Luepnitz. Luepnitz had caused a car accident in which Kyllonen suffered a shoulder injury. Kyllonen endured two surgeries on the shoulder (one to insert a screw and another to remove it) and pain, limitation of work and recreational activities, and some continuing disability. The judges held that his injury was not a "serious impairment."
UNUM Life Insurance Company, rated one of the worst insurers in the country for treatment of insureds, put some of its flaws on display in a recent St. Clair County Probate case. Gaylord Genaw had purchased a life insurance policy from the company and its value in 2006 was $110,000.00. That year he and his wife divorced and the divorce judgment extinguished the ex-wife's interest in the life insurance. Days later, Gaylord was killed in a motor vehicle collision. His ex- was still listed as a beneficiary on the policy and she applied for the proceeds, identifying herself as the divorced "ex-spouse."
Continue reading "Insurer pays life insurance proceeds to ex-wife; pays again to Estate" »