TOV Injury and Safety Blog

Supreme Court reverses another medical malpractice dismissal

Vicki Zunich sued Family Medicine Associates of Midland, Jerry Ferrell, M.D. and others, arguing that they were negligent in treating her husband.  Zurich's husband died after suffering a series of grand mal seizures, apparently caused by an undiagnosed brain hemorrhage.  The case was dismissed after the Defendants complained that Zunich's Notice of Intent (NOI) and Amended Notice of Intent, alleging first 8 and then 16 breaches of the standard of care, did not adequately inform the physicians of their alleged negligence.  Applying the more reasonable standard that the Supreme Court elucidated in its recent Bush decision, the Supreme Court reversed the Court of Appeals and sent the Zunich case back for further development and amendment of the NOI, if necessary.

Supreme Court holds that lack of informed consent is simple malpractice, not denial of an opportunity for better outcome.

The unanimous Michigan Supreme Court granted Deborah Compton's appeal and reversed a Court of Appeals' decision that would have virtually dismissed Compton's malpractice claim against Helen Pass, M.D., Jane Pettinga, M.D., and William Beaumont Hospital.  Compton argued that the doctors did not provide her with an informed basis to consent to a more invasive treatment for breast cancer (removal of additional lymph nodes, resulting in axillary cording and lymphedema), and therefore commited malpractice in subjecting her to these complications without proper consent, in violation of the standard of care. 

Radiology magazine reports that doctors surveyed would not report errors

According to HealthImaging.com, radiologists would be reluctant, and a majority would not inform patients of errors in interpreting previous x-rays.  A physician from the departments of medicine and bioethics at the University of Washington conducted a study that surveyed 364 radiology specialists from seven different geographic regions.  He found that if presented with a historical error in mammogram interpretation, only 15 percent answered that they would inform the patient "that an error had occurred" and that calcifications had increased in number between mammograms.

Supreme Court repudiates hyper-technical examination of malpractice notice of intent

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.

Court rejects malpractice insurer's claim that filing one day early should lead to permanent dismissal

Barbara Zwiers sued Sean Growney, M.D. and Michigan Pain Consultants for malpractice.  Under the law, she was required to file a Notice of Intent spelling out the basis of her suit, and then wait 182 days before filing her Complaint and Affidavit of Merit.  Her attorneys miscalculated and filed the suit one day early.  The insurer's attorneys then waited for the statute of limitations to run before asking to dismiss the claim.  The lower court agreed with the insurer and permanently dismissed the lawsuit.

The Court of Appeals reversed, noting that the stated legislative purpose of the statutory waiting period was to allow for the settlement of claims prior to suit, thereby assuring that meritorious claims would be compensated while reducing the cost of processing claims.  The court noted that accidentally filing the suit one day early did not defeat this legislative purpose, and held that pursuant to MCL 600.2301, a statute that allows the Court to ignore defects in pleadings or in "process," should be applied.  Since the alleged victim acted in good faith and the dismissal would not be "in furtherance of justice" the Court reversed the lower court and reinstated the malpractice claim, despite the one-day error in computing the notice period. 

American Cancer Society elucidates issues involved in breast and prostate cancer screening

The ACS has been attempting to respond to recent research documenting the fact that "American medicine has overpromised when it comes to screening" without discouraging patients from seeking appropriate medical evaluations.  Unlike colon and cervical cancer screening, which have lead to the identification of deadly cancers and a substantial improvement in the related death rate, prostate and breast cancer screening have not significantly improved the survival rates for these cancers.  Instead, it appears that prostate cancer screening in particular, and to a lesser extent breast cancer screening, have resulted in the early identification and treatment of non-fatal tumors, while failing to catch fatal tumors early enough to be effective.   The ACS noted that while there has been a 40 percent increasein the diagnosis of breast cancer, this has led to only a ten percent decline in the diagnosis of Stage II and IV breast cancer.

The ACS notes that timely mammography is still an important health choice, although its effectiveness has been exaggerated.  Researchers suggest that the problem lies with our inability to distinguish between relatively benign cancers and cancers that will be fatal if left untreated.  Until we make that scientific leap, many patients will undergo expensive, invasive and dangerous treatments that ultimately prove to be unnecessary.  Recent research has demonstrated that in many cases the complications arising from treatment may outweigh the benefits gained.  A long-term study from New England documented the fact that survival rates among "over-treated" patients were lower than survival rates among the "under-treated" population.  This is not simply a question of "more is better."  We must determine how to judiciously apply resources where they will best serve the patient.

Court rules doctor was unfairly denied malpractice insurance

Doctor Manisha Gupta was hired by Anchor Senior Medical Services to provide direct patient care.  Under her contract, Anchor, doing business as Grand River Medical Center, agreed to provide Gupta with $100,000.00 of malpractice coverage.  Gupta left the practice after 15 months, but later was served with a malpractice complaint arising out of the death of Glenna Wojnicki.  Her employer refused to provide liability coverage for Gupta, arguing that the employment contract it imposed on her was "ambiguous" and should be interpreted to require that when she left Anchor's employment, it became her obligation to purchase a "tail" to cover claims related to her period of employment. 

The Court of Appeals rejected this claim and enforced the plain terms and meaning of the parties' contract.  It was Anchor's obligation to provide $100,000.00 of coverage for Gupta relating to claims arising during her term of employment.

Doctor's attempt to sanction estate of patient who sued for malpractice is defeated

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. 

Federal Tort Claim dismissed as government owes no duty to soldier's family

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.

Malpractice claim dismissed when victim's doctor mis-states basis of his opinion

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. 

Court decides to publish malpractice decision regarding forseeability and causation

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.

Court examines impact of early filing of malpractice claim

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. 

Doctor who accepts E.R. transfer of heart patient owes no duty

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.

Congress explores giving active military the right to sue for malpractice

For almost sixty years, active duty members of the U.S. military were denied the right to seek compensation for medical malpractice, if the negligent treater was employed by the government.  This "immunity" for government doctors and their employer was established in a court decision rendered in the U.S. Supreme Court's 1950 Feres decision (and is, thus, called the Feres Doctrine.)

The U.S. House took a long step toward granting members of the military equal right to file a Form 95 compensation claim when the House Judiciary Committee passed a bill this week that would overturn the Feres Doctrine in cases of non-combat medical treatment. Treatment rendered in battlefield situations would remain exempt from meeting any standard of care, however, cases such as that of Marine Sgt. Carmelo Rodriguez, would now be compensable.  Rodriguez died from metastasized skin cancer, after the cancer was mis-diagnosed as a "boil" and mis-treated for years by a succession of military doctors.

Study finds malpractice insurers "gouge" doctors and reap stunning profits

The American Association of Justice (essentially America's trial lawyers) funded a study of insurance profits by malpractice insurers.  It reported this week that the insurers achieved "astronomical" profits year after year--higher than 99 percent of Fortune 500 companies.  The Washington Independent quoted the Report as concluding that the malpractice insurance companies studied reported profits that were 35 times higher than the Fortune 500 average and ranged from a low of 5.9 percent to a high of 74.8 percent.  The average reported profit for these insurers during the period was 31.2 percent.  Nowhere else in our economy can a corporation or individual anticipate achieving profits that even approach this level--and yet the public conversation about malpractice "reforms" has focused solely on eliminating the rights of badly-injured individuals, rather than redressing premium-gouging of doctors by insurance companies.

Health care symposium concludes malpractice is very minor influence on health care costs

The O'Neill Institute for National and Global Health Law at Georgetown University concluded its symposium this week with the finding that curbing medical malpractice litigation isn't the "silver bullet" needed to slay rising health care costs.  The panel of academics, quoted by McClatchy's Washington Bureau, included medical, law and economics professionals.  It noted that partisan interests make "bloated" anecdotal claims arguing for malpractice reforms, but that in fact they result in only meager cost savings.  It further noted that even in considering so-called "defensive medicine" costs, malpractice claims account for only "2 to 3 percent---at most" of the cost of health care. 

The Institute's findings were very similar to the conclusions reached by surgeon Atul Gawande when he analyzed Medicare costs in Texas:  the problem lies in "fee for service" medicine and an attitude among some medical professionals of "leave no dollar on the table." Texas malpractice reforms had minimal impact on the escalation of costs when compared with the problems Gawande identified.

Malpractice claimant gets "homered;" substance of claim is dismissed

Ruth Aldrich took over her husband's medical malpractice claim after he died from an unrelated cause.  Her husband, Steven, had sued Robert Genovese, M.D., and Rodney Diehl, D.O., for malpractice in failing to respond properly to a morbidly prolonged erection (i.e., as everyone post-Viagra advertising now knows, this condition is called "priapism" and should not continue for more than four hours). Adrich had been admitted  to Mid Michigan Medical Center for chest pain and first noticed the erection around 5:00 a.m.  It was not relieved for about 36 hours.

Court refuses summary disposition of brachial plexus-shoulder dystocia claim

Marilyn Clemons sued Roderick Cairgle, M.D. and Sinai Hospital on behalf of her son, Miles, alleging that Cairgle's negligence resulted in a birth injury and permanent paralysis of Miles's arm.  She claimed that Miles's delivery had been temporarily obstructed when his shoulder hung-up on the pubic bone (this is called shoulder dystocia) and that Cairgle permanently injured Miles's shoulder by applying excessive force to manipulate his shoulder through the birth canal.  She also argued that Cairgle should have delivered Miles by C-section once he recognized the  occurrence of shoulder dystocia, however, Cairgle denied that a shoulder dystocia even occurred.  The Defendants persuaded the trial court to grant partial summary disposition on the C-section claim, based on the argument that the Clemons' attorneys had not proved that a shoulder dystocia had actually occurred.

Court reduces malpractice verdict because man who lost functional use of both arms didn't prove economic damage

John Shivers sued Susan Schmiege, M.D. and Valley Anesthesia for malpractice after he lost virtually complete use of both arms.  Schmiege had been admitted to St. Mary's Medical Center for bladder removal, and after the surgery his physical conditon deteriorated rapidly.  He had weakness in his arms in the recovery room and the weakness progressed overnight to almost complete paralysis.  Schmiege checked Shivers at 7 p.m. and recorded diminished arm function but took no action.  A nurse claimed she reported further deterioration to Schmiege at 12 midnight, but Schmiege denied she was called.  Another nurse claimed that someone resembling Schmiege was in and examined the patient at 2 a.m., without charting, but Schmiege denied she attended Shivers that night. 

A surgeon was consulted the following morning and rushed Shivers back to surgery to relieve the pressure on his spinal cord, however, the emergent surgery achieved little recovery in Shiver's arm function.  Schmiege lost the functional use of both arms and was dependent on his elderly wife and daughters for the requirements of daily living.  A jury awarded Shivers 1.7 million dollars to compensate for the loss of use he suffered as a result of Schmiege's failure to act more promptly, and Schmiege's insurers appealed on various technicalities.

Court refuses to apply "discovery" extension where Doctor's employment is misrepresented in chart

Gary Tyson went the the VA Medical Center in Ann Arbor for x-rays on his ankle.  One Dr. Ebrahim was identified as his "Primary Interpreting Staff" and "Attending Radiologist," and it turns out that Ebrahim mis-read the x-ray.  Tyson continued to ambulate on a fractured ankle for several weeks, before the mis-diagnosis was discovered.  Under the Federal Tort Claims Act, he filed a claim against the VA Medical Center.  Under that Act, the veteran cannot sue the individual practitioner and must look only to the Federal Government for compensation.  To his surprise, the VA eventually responded--after the two-year statute of limitations for malpractice claims--by notifying Tyson that it was not responsible under the FTCA for the error made by Ebrahim, because Ebrahim was not employed on staff by the VA:  he was an employee of the University of Michigan working under contract for the VA.

Expert not allowed to offer opinion on poor design of surgical table

Pontiac Osteopathic Hospital hired an expert to criticize its "shoulder chair," after the chair collapsed during surgery on Michael Pagano.  The Hospital, Allen Medical Systems, manufacturer of the chair, and Hillenbrand Industries had all been sued by Pagano after he fell to the floor while unconscious, injuring his neck and back.  The Defendants settled Pagano's claim and then continued the case among themselves to apportion fault.  Ultimately, the trial court excluded the Hospital's expert testimony regarding flaws in the design of the "shoulder chair," leaving the Hospital to bear the entire cost of the settlement because it could not prove fault by the manufacturer.

Physician group seeks new warnings on prescriptions

According to the Los Angeles Times, the American College of Physicians has gone on record criticizing the Food and Drug Administration for its passive lack of supervision of prescription labeling.  The nation's primary association of Internal Medicine physicians, the ACP made a number of concrete suggestions and recommendations.  These included placing limits on the advertising of newly-approved medicines, identifying them as "new" through appropriate consumer labeling, creating a better system of tracking complications in newly-approved drugs and better identifying drugs formulated abroad.  The organization documented its concerns and justified these recommendations by reference to recent medical product recall and patient injury history.

Court rejects expert testimony regarding spread of squamous cell carcinoma

The Court of Appeals upheld the dismissal of Robert Shaw's malpractice claim against Joseph W. Kaufman, M.D. and Kaufman's Dermatology practice in Macomb-Oakland County.  Shaw sued Kaufman after the patch of "psoriasis" that Kaufman had treated for 7 years turned out to be squamous cell carcinoma.  When Shaw saw another doctor, Howard Lipkin, in 2006, Lipkin promptly made the proper diagnosis and Shaw embarked on a complicated course of surgical treatment that was signficantly disfiguring.  He alleged that because of Kaufman's negligence, the tumor had grown substantially and the necessary treatment was much more involved and more disfiguring.  Shaw testified that the spot on his eyebrow changed over the years of treatment, but he could not specify precisely when the change in appearance occurred.  Kaufman continued to treat the area with a prescription cream or spray but never biopsied it.

Washington Supreme Court rules malpractice scheme similar to Michigan's is unconstitutional

This week, the Washington State Supreme Court unanimously agreed that a 2006 law governing medical malpractice suits was unconstitutional.  The judicial activists appointed by Governor Engler to the Michigan Supreme Court last decade had previously rejected similar challenges to several provisions of Michigan's tort "reform" statutes.  In short, the Washington court rejected the concept that an injury victim must prove his claim has merit prior to filing suit and enjoying the opportunity to investigate.  It noted that in many situations, reputable phyisicians will not sign a "certificate of merit" attesting to the victim's allegations, without hearing a complete explanation of what actually occurred. 

Ultimately, the Court concluded, it is a violation of constitutional separation of powers for the legislature to attempt to dictate court rules and procedures to the judiciary.  The so-called Engler Majority or "gang of four" overturned Michigan precedent and scoffed at this notion, even allowing the legislature to dictate which qualified experts would be allowed to testify.

Defense attempt to muzzle expert testimony is rejected

Raquel Robelin's baby was born with an APGAR of 2 and suffered a stroke in the nursery, leaving the child partially paralyzed with severe developmental limitations and significant cerebral palsy.  Robelin's attorneys claimed that the child's stroke was suffered only a few moments before her birth, and that late decelerations on the fetal monitor warned the O.B. Gyn that the child was suffering hypoxia and should have been delivered by C-section hours earlier.

In response, the Defendants claimed that Robelin's expert, a pediatric neurologist, should not be allowed to testify because Defendants argued there were no scientific studies in the medical literature directly supporting the doctor's opinion that the stroke occurred just prior to the child's birth.

Court "elevates form over substance;" dismisses malpractice claim on technicality

After 54 year-old Edris Ligons underwent a colonscopy, she started suffering vomiting, diarrhea, chills and fever.  Her husband took her to Crittenton Hospital where she was treated by Dr. Bruce Bauer and the Rochester Emergency Group.  Bauer treated her for gastroenteritis and dehydration and sent her home.  She continued to experience severe pain and returned to the E.R. the following day.  She was admitted with a perforated colon, peritonitis (or infection in her abdomen caused by leakage of bowel contents) and severe sepsis.  She died within the week. Her Estate filed suit against Bauer and his practice, alleging that he didn't do the tests that the standard of care required before dismissing Ligons; and that if Bauer had ordered those tests, Mrs. Ligons would have been timely diagnosed and treated--preventing her death.

Wrongful death verdict upheld despite "loophole" objections by insurer

Fourteen year-old James Stone collapsed while walking to his school bus stop.  He suffered intense chest pain and vomited.  His mother drove him to the Emergency Room of Oakwood Hospital, where he was examined by Dr. Donald R. Schipper, M.D.  Schipper performed an EKG, which was normal, diagnosed anxiety and hyperventilation, and sent Stone home.  He died that night in his sleep.  An autopsy showed that he suffered a ruptured aorta during the night and bled to death.  At trial, the jury awarded his family $300,000.00 for the loss of his society and companionship.

Court interprets adequacy of Notice of Intent and Affidavits of Merit

In Donald Shields v. James E. McLachlan, M.D., et al., the Court of Appeals rejected the Defendants' attempt to dismiss Shields' malpractice claim because his pre-suit filings were considered by the Defendants to be inadequate.  Shields suffered a hip fracture and associated complications after being sent home following a motorcycle accident that caused his left great toe to be amputated. His attorneys alleged that he suffered the hip fracture when he fell at home because the doctor and "ancillary support staff" did not perform adequate discharge planning.  It was maintained that he wasn't capable of caring for himself adequately at home, and that proper discharge planning would have provided him more appropriate support.

The Court of Appeals held that Shields' Notice of Intent and the Affidavit of Merit signed by an Internal Medicine specialist were adequate to allow the case to go forward, but only on the basis of allegations against the Internal Medicine physician who signed the Discharge.  Since Shields' lawyers did not file an Affidavit of Merit executed by any other medical professionals, Shields cannot allege negligence or fault by "ancillary support staff" such as social workers, occupational therapists, or other persons who might have--or perhaps should have--contributed to the discharge decision.

Studies document that cementing spinal injuries is no more valuable than placebo

The New York Times reported on August 6 that the New England Journal of Medicine's August issue contained surprising information on vertebroplasty--that is, the expensive, complicated surgery involving the injection of acrylic cement into spinal column bones to ease back pain.  The surgery costs more than $3500, including MRI expenses, is dangerous, and was performed 73,000 times in the U.S. last year.  Dr. David F. Kallmes, a professor of radiology at the Mayo Clinic reported that randomized studes performed by his group and another group of phyisicans in Australia confirmed that the procedure was no more effective in treating back pain than a sham procedure that injected no cement into patients' spines.

Lexington Herald-Leader and other sources confirm that tort "reform" doesn't cut health costs and fails to address "the leading cause of accidental death in America"

In an editorial written on August 16, 2009, the Herald-Leader, obviously a disinterested observer, pointed out that tort "reform" is a red herrring in the current conversation over health care costs.  That is, malpractice recoveries and "defensive medicine" are a literal drop-in-the-bucket compared to the overwhelming cost of medical care.  The paper pointed to Texas and other states where malpractice caps and reforms in 2003 did not significantly slow the exorbitant rise in health care spending. 

Gastric bypass surgery is now much safer

The Washington Post recently detailed new findings showing that the safety of gastric bypass surgery has been improved immensely.  A decade ago the morbidity and mortality figures associated with gastric bypass surgery made it questionable whether the surgery was worthwhile--despite the known dangers of morbid obesity.  New safety results at major hospitals show, however, that fewer than five percent of patients now suffer major complications.  The results are published in the New England Journal of Medicine.

Generally, the surgery is recommended for persons with a body mass index over 40, or over 35 if obesity is combined with another significant health problems such as diabetes or high blood pressure.  Last year the surgery was performed nearly a quarter million times in the U.S.  Death, serious complications or the need for additional surgery ocurred in one percent of patients whose stomachs were banded, almost five percent of patients having laparoscopic bypass and almost eight percent of those given a bypass by traditional surgical means.

Clearly, where possible, gastric bypass patients should select a surgeon who performs banding or laparscopic bypass at an institution that performs hundreds of the procedures each year.

Supreme Court returns a measure of sanity to Notice of Intent requirements

In Potter v. Richard McLeary, M.D., et al. and Kristyn H. Murry, M.D., et al., the Michigan Supreme Court continued its trend to a more reasonable interpretation of the tort "reform" statutes requiring malpractice victims to file Notices of Intent (NOI) and Affidavits of Merit (A/M) prior to or contemporaneous with their civil claims.  Potter suffered permanent spinal cord injury when his radiologist allegedly mis-read an MRI in June of 2001.  The Courts have spent the intervening years spluttering through an analysis of whether Potter's NOI and A/Ms were sufficient to prevent his claim from being permanently dismissed.

A majority of the Court held on July 31 that a victim must provide the NOI to any Professional Corporation who may be sued, whether or not an NOI has been sent to the treating professional, but that the NOI need not contain the phrase "vicarious liability," explaining to the P.C. that it is being held accountable for it's employee's mistake.  The majority of the Supreme Court found it "troubling" that the doctor's P.C. admitted employing the doctor and admitted that the NOI adequately addressed the doctor's breach of the standard of care, yet the P.C. sought permanent dismissal of the claim because the NOI did not inform the P.C. that it employed Dr. Murry, the alleged at-fault.  The Court noted that this argument "exalts form over substance in an intolerable manner."

While Clifford Taylor was on the Supreme Court with a majority of Justices who owed their election or appointment to the Chamber of Commerce and the insurance industry, insurance interests could successfully pursue arguments devoid of common sense or reasonable public policy, however, perhaps that era has finally ended.  We hope so.  Perhaps victims like Brian Potter will finally get a day in court and the courts of our state won't spend months and years analyzing the semantic equivalent of "how many angels can fit on the head of a pin."

Malpractice claim dismissed because Court of Appeals rejects victim's doctors' causation testimony

Rosemary Smoter sued Nancy Lockhart, M.D., alleging that Lockhart caused her  to suffer permanent injury by applying a splint that was too tight for her injured and swollen leg.  Smoter developed reflex sympathetic dystrophy--a serious and permanent condition that is not well understood by physicians--and proferred the testimony of two qualified specialists, an E.R. doctor and a neurologist, to support her claim that the RSD resulted from Lockhart's splint aplying too much pressure on Smoter's ankle.

Malpractice case against jail medical staff may go to jury

Christopher Morden was housed in the Grand Traverse County jail after a misdemeanor conviction.  Over the course of several weeks, the jail doctor and nurse charted his rapid decline into paranoid schizophrenia and "polysubstance abuse."  The doctor and nurse continued and increased Morden's psychotropic medications, even after he demonstrated symptoms of grossly abnormal behavior and potential toxicity.  When he suffered a seizure and died in the jail, his mother filed suit alleging that the medical staff was both negligent and "deliberately indifferent" to her son's condition--thus violating his Constitutional rights.

Judgment against surgeon upheld where carpal ligament not severed

The Court of Appeals recently affirmed a judgment in favor of Ann Brabbs arising out of carpal tunnel surgery.  Brabbs, a home care nurse, alleged that following her carpal tunnel release, she continued to have pain and dysfunction which was actually more severe than it had been prior to surgery.  She presented the testimony of an orthopaedic surgeon who criticized the original surgeon for failing to sever the carpal ligament and for injuring the median nerve. 

The insurer sought to overturn the verdict, claiming that the subsequent doctor should not have been allowed to testify because he performed carpal tunnel surgery by a different procedure and not by the "mini-open procedure" used by the original, defendant surgeon.  The Court of Appeals upheld the Plaintiff's verdict and her use of a surgeon who was critical of the "mini-open procedure".  Even though the testifier was critical of the latter procedure and did not use it, he was trained in the procedure and his criticism of the breach of the standard of care was based upon the defendant surgeon's surgical failure, rather than his choice of technique:  regardless of the surgical technique utilized, it was legitimate to base the Plaintiff's claim on the failure to completely sever and "release" the carpal ligament and to fail to identify and avoid injuring the median nerve.

Malpractice verdict affirmed where one twin dies and the other is brain-damaged

In Wilcoxson-Bey v. Providence Hospital and Debra Wright, M.D., the Court of Appeals affirmed a jury verdict for the Wilcoxson-Bey family.  The family sued after Dr. Wright failed to order daily fetal monitoring of the monoamniotic twin pregnancy, allegedly causing the death of one twin and severe brain damage to the other. 

Supreme Court overturns Saad mistake; reinstates verdict against doctor

On July 28, the Michigan Supreme Court overturned a Court of Appeals decision that had denied a jury verdict to Kelly Sue Symons.  Symons had sued Dr. Robert Prodinger and his P.A., Dale Russell, after the P.A. failed to diagnose her husband's heart attack.  A jury in Calhoun County entered a wrongful death verdict in favor of Symons after the P.A. failed to diagnose Symons' husband properly and he died the following day. 

Prodinger's attorneys had stipulated that Prodinger was the P.A.'s supervising doctor, but after Prodinger was held responsible for Symon's death, Prodinger appealed, arguing that its concession of respondeat superior did not obviate the victim's duty to plead vicarious liability.  In other words, through the trial, Prodinger's counsel acknowledged that the P.A. was acting under Prodinger's license and that Prodinger was responsible for his negligence by statute, but when the jury found malpractice, Prodinger's attorneys claimed that the victim's family did not alert Prodinger to his accountability for P.A. Russell's error.

Michigan Supreme Court applies more reasonable interpretation to Notice of Intent requirement

A majority of the Supreme Court held, on July 29, that Gary Bush's guardian could sue his physicians for malpractice.  Bush suffered catastrophic injury during heart surgery when physicians were allegedly negligent in lacerating his aorta and then negligent in repairing the laceration they caused. Bush had been admitted for repair of an aortic aneurysm and replacement of a heart valve.

The lower courts had concluded that the 13-page Notice of Intent (NOI) filed by Bush's attorneys constituted a "good faith" effort to comply with the notice statute, but that it had several technical deficiencies that required dismissal of his claim against some of the multiple defendants.  The Defendants argued that because there was a technical flaw in his Notice (NOI), it did not toll the statute of limitations, and therefore his claim must be dismissed "with prejudice" [meaning with no right to file a subsequent, amended pleading that cured the technical defect(s)].

Former chairman of NTSB calls for national medical safety board

Jim Hall, former chairman of the National Transportation Safety Board recently filed an op-ed calling for a similar organization to analyze medical errors and recommend solutions.  He noted that the NTSB costs taxpayers about 25 cents each, per year, and for that cost it has saved millions of lives as a result of its activities in commercial airline and highway safety alone.  He noted that 10 years ago, the Instititute of Medicine placed the cost of avoidable medical error at $17 to $29 billion per year--and likely much higher today.  With the current focus on the cost of health care (which now approaches approximately 1/3 of the average annual family income in the United States) an organization similar to the NTSB to study and eliminate routine and avoidable medical errors is long overdue.

Nurses indicted for reporting doctor's malpractice to licensing board

Two nurses who lodged a complaint with the Texas Medical Board were indicted for "misuse of information" this week, because they included in their (confidential) complaint the medical records of several patients whose names had been redacted from the records.  While the ten patients' records did include patient numbers, no patients were identified and the licensing board's activities are entirely confidential, meaning there was no risk that the patients' confidential records would be disclosed in any broader venue.  Over the objections of the licensing authority and the Texas Nursing Association, local authorities and the hospital have chosen to attempt a prosecution charging the nurses with a felony, simply for acting to advocate for patient safety. 

Denver hospital closed to new patients after inadequate staffing and training cause death

The Colorado Orthopaedic and Surgical Hospital was closed to elective surgeries after a 25-year old died following surgery and a drug administration error.  The state inspectors found that the hospital--which relied upon a neighboring hospital to provide emergency services and which was forced to call EMTs to respond to Hilary Carpenter's complications--was unprepared for emergencies due to inadequate training and staffing.  The wrong drug had been given to the young woman, in the wrong dose and via the wrong means of administration, causing her to suffer cardiac and respiratory distress.  The responders were unfamiliar with the crash cart and its contents and could not revive her in what became a scene of "chaos."  Responders from the nearby hospital could not locate the proper room for twenty minutes and EMTs from an ambulance service had to be called!  Ultimately Carpenter's family was forced to remove her life support.

University of Michigan devises simpler, cheaper response to malpractice: honesty

The Associated Press reported today that the University of Michigan has published an article in the Journal of Health & LIfe Sciences Law detailing the positive impact of its new and different approach to malpractice claims:  it offers to meet with patients, apologizes for mistakes, offers compensation where appropriate and has significantly reduced its costs and payouts.  The administrator of the program, a well-known and respected malpractice defense lawyer named Richard Boothman, explained that claims against the health system fell from 121 in 2001 to 61 in 2006 and open claims dropped from 262 in 2001 to 83 in 2007.  The average time to process a claim fell from 20 months to 8 months, defense costs were cut in half and reserves were diminished by two-thirds.

A Harvard University study showed that about 181,000 people are severely injured by hospital mistakes each year in the U.S., but that only about 30,000 of these innocent victims file legal claims.  In an article in the journal Health Affairs, the author of the Harvard  study concluded that many victims don't sue because they never learn of the mistake.  The Manhattan Institute, a conservative think tank, would like to curb malpractice damage suits by making any admission of fault by a medical professional inadmissible in court.  The Institute thinks that doctors should be protected from the truth, rather than following the U. of Michigan example.  We prefer the U of M approach and Mark Twain's recommendation, as voiced to the Associated Press by Norm Tucker:  that truth be the immediate fall-back position when you find yourself in doubt.

Malpractice victim can disprove doctor's testimony supporting allegedly negligent nurses

James Ykimoff sued W.A. Foote Hospital and his doctor, David Eggert, M.D., claiming they were responsible for the permanent leg injuries he suffered after surgery.  Eggert was dismissed from the case after the Court ruled that Ykimoff could not admit into evidence contemporaneous statements by the nursing staff to his family, claiming that the nurses encountered difficulty in reaching Eggert when they began to identify evidence of post-surgical complications.  (The court held that these statements were "hearsay" and not competent evidence.)  Without this testimony, Ykimoff's surgical expert did not see any basis in the medical chart to blame Eggert for the poor outcome, and Ykimoff was limited to the claim that the nurses did not act reasonably in notifying Eggert of Ykimoff's deteriorating condition. 

Is failure to report child abuse governed by medical malpractice laws?

In Lee v. Detroit Medical Center and Children's Hospital, a panel of the Court of Appeals was presented with the thorny question of whether an abused child's representative must comply with medical malpractice rules in order to hold a medical professional responsible for the breach of the professional's statutory duty to report suspected child abuse.  Two judges concluded that since the statute creates a duty in both professionals and non-professionals, it does not create a "professional" duty and the malpractice rules are irrelevant to the statutory claim.  The third judge would have defined the duty based on the professional occupation of the person alleged to have committed the statutory breach.  The case is likely to end up before the Michigan Supreme Court before we have a final answer.

Court rejects new trial for dental malpractice claimant

Greg Komyathy, D.D.S., was performing a root canal on Lisa Francoeur when he drilled through the tooth, causing a perforation.  He didn't recognize his error and allowed his assistant to blow high pressure air into the canal, causing a large subcutaneous air emphysema in her face and neck and extreme pain.  Francoeur's expert claimed Komyathy's errors were a breach of the standard of care; Komyathy's expert claimed they were within the standard of care and a "known complication" that can occur without negligence.

Michigan Supreme Court says a housewife has "economic" value

In a landmark ruling perhaps staking out the high-water mark of the insurance industry's dominance of Michigan jurisprudence, yesterday the Michigan Supreme Court ruled that "Yes, Virginia, taking care of the kids has economic value."  For more than ten years, the Supreme Court majority hand-selected by John Engler had given the insurance industry literally everything it asked for. 

Regardless of precedent, common sense or sound public policy, insurance industry and Chamber of Commerce advocacy was rewarded in every context.  This week we learned that with last November's defeat of one of Engler's lackeys, perhaps the tide has crested.  In a 4-3 decision, three Democratic Court nominees and one Republican voted to recognize that a mother's household contributions have economic value.  One would have thought that even to arch conservatives, this principle would have been sacrosanct.

Chelation study criticized by research physicians

Chelation is the periodic infusion of a drug in an attempt to flush arteries.  It is used in cases of lead poisoning, and is currently being tested as a potential method of clearing calcium deposits in coronary arteries, through the infusion of disodium EDTA.  Critics say that heart attack survivors who have enrolled in the study have not been adequately warned of the dangers of chelation and that the "alternative medicine" research is unethical. 

Doctor still in practice despite fifty malpractice claims

As the national debate over limiting malpractice claims continues, there is still little or no talk about the deficiencies in medical licensing review.  In Michigan, as in most states, the process for suspending or revoking a doctor's license is so ineffective as to be non-existent.  While authorities should be slow to revoke any professional's ability to earn a living, it is apparent that physician licenses are far less vulnerable to regulation than, for example, attorney licenses.  The Chicago Tribune's July 5 edition highlights the case of Dr. Nicholas Caro, an opthalmologist who has been sued 29 times in the last decade and "almost 50 times" in Cook County since 1990. The report did not identify how many claims had been raised and settled without suit.

V.A. Hospital botches prostate cancer therapy for 92 of 116 veterans

The New York Times' Sunday edition disclosed details of an investigation into cancer therapy provided at a Philadelphia Veterans Administration Hospital.  The VA has recently acknowledged that the care was sub-standard and described the events that unfolded between 2002 and 2008, identifying 92 cases of malpractice in 116 treatments over a span of six years.

Court reaffirms holding that continuing misdiagnosis or mis-treatment does not extend statute of limitations

Brown v. Dr. Karen Milner and Dr. Dan Andrews, et al., is a very unattractive malpractice claim brought by a Ph.D., Mr. Kenneth Brown, against his treating physicians.  Brown claimed that inadequate or substandard care by his physicians contributed to a dysfunctional decade that included multiple job changes, multiple failed business ventures, three bankruptcy declarations, two divorces, and perhaps two criminal sexual conduct crimes. It will shock very few readers to learn that his malpractice claim was dismissed.  It is unfortunate, however, that the justification for the dismissal was the Michigan judiciary's refusal to consider "continuing wrong" liability.