|
Case
Alerts
Ellout v Detroit Medical Center -
The plaintiff filed a medical
malpractice action against a nurse and, on a vicarious
liability theory, DMC and Detroit Receiving Hospital. The
complaint was filed less than 154 days after sending notice
of intent to the nurse, but was timely filed as to the other
defendants. The trial court entered a dismissal with
prejudice against the nurse, and then, deeming that
dismissal an adjudication on the merits, granted summary
disposition in favor of the other defendants. See Al-Shimmari
v Detroit Medical Center, 477 Mich 280 (2007) (holding that
a dismissal with prejudice in favor of a surgeon acted as an
adjudication on the merits, and precluded vicarious
liability claims against the remaining defendants). In a 2-1
decision, the Court of Appeals reversed. According to the
Court (Judges Michael Kelly and Christopher Murray), the
proper sanction for the premature filing of the complaint
was dismissal without prejudice as to the claims against the
nurse, see Bush v Shabahang, 484 Mich 156 (2009), which is
not an adjudication on the merits, and, consequently, could
not provide the basis for the grant of summary disposition
in favor of the remaining defendants. Ultimately, the Court
remanded for entry of an order reinstating the plaintiff's
complaint and dismissing the plaintiff's claim against the
nurse without prejudice. [In dissent, Judge Kirsten Frank
Kelly opined that, since the statute of limitations on the
plaintiff's claims had expired, the trial court did not
abuse its discretion in dismissing the claims against the
nurse with prejudice, which is an adjudication on the
merits, and warranted summary disposition in favor of the
remaining defendants.]
Click for Majority
Click for Dissent
Lockridge v Oakwood Hospital -
The plaintiff took her 14 year-old son to the defendants’
emergency room after he developed severe chest pain, had
difficulty breathing, and fell down. The ER physician
diagnosed anxiety and hyperventilation and prescribed
medication. The plaintiff’s son died in his sleep from an
aortic dissection. The plaintiff filed a medical malpractice
action, claiming that the standard of care required the ER
physician to perform a chest x-ray, which would have
revealed the presence of an aortic abnormality. In an appeal
following the entry of a jury verdict in favor of the
plaintiff, the defendants claimed that the trial court
should have granted them a directed verdict because an
aortic dissection in a pediatric patient was not
foreseeable, and therefore the ER physician had no duty to
diagnose it. The Court of Appeals (Judges Owens, Servitto
and Gleicher) disagreed, noting that the plaintiff’s expert
testified that the standard of care required a chest x-ray,
and the fact that an aortic dissection may not have been
foreseeable did not excuse the failure to comply with the
standard of care. The Court noted that the precise mechanism
of an injury need not be foreseeable, only that some injury
be anticipated. The defendants went on to challenge evidence
of causation, noting that the plaintiff's expert predicated
his standard of care testimony on the ER physician’s failure
to rule out a spontaneous pneumothorax, a condition
unrelated to aortic dissection. The defendants argued that
it was not foreseeable that a failure to rule out a
spontaneous pneumothorax would result in a death due to
aortic dissection. The Court of Appeals again disagreed,
finding that it was foreseeable that the failure to order a
chest x-ray to rule out spontaneous pneumothorax, the most
likely diagnosis, would result in a failure to diagnose
aortic dissection, because a chest x-ray would have supplied
the information for both diagnoses. The Court stated, “an
unforseen diagnosis does not relieve a physician from
liability if the patient’s actual condition would have been
diagnosed naturally and probably had the physician complied
with the standard of care.”
Click for
more Details
Shivers v Schmiege -
The 70
year-old plaintiff was admitted to the defendant hospital
(St. Mary’s of Saginaw) to have his bladder removed. After
the surgery, the plaintiff lost most of the use of his hands
and arms. Despite an emergency decompressive cervical
laminectomy, the plaintiff still requires a significant
amount of attendant care-type services. A jury found the
defendants guilty of malpractice and awarded plaintiff
nearly $1.8 million in economic and non-economic damages.
The Court of Appeals (Judges Owens and Murray) vacated the
more than $500,000 in future economic damages on the ground
that, although the plaintiff's counsel requested damages for
future attendant care services, that request was made in the
context of non-economic damages, not economic damages, and
that, in any event, there was no evidence by which an amount
of damages for future attendant care services could be
calculated. The Court then went on to find that the trial
court did not err in applying the higher statutory cap on
damages, which applies where, the plaintiff is “hemiplegic,
paraplegic, or quadriplegic resulting in a total permanent
functional loss of 1 or more limbs.” According to the
Court, for purposes of the statutory cap, the words
“hemiplegic, paraplegic, or quadriplegic” are terms of
medical art that refer to a “particular kind of damage to
the nervous system,” and not particular “symptoms” (i.e.,
the inability to use a limb), and a plaintiff need not prove
the loss of “all” use of a limb, only the loss of
“functional” use, which means “the destruction of the
usefulness of the member, or the entire member, for the
purposes to which, in its normal condition, it was
susceptible of application.” The Court further held that the
cap that is in existence at the time the judgment is entered
is the cap applicable to an award of noneconomic damages,
and also rejected the defendants’ argument that the cap
should be applied proportionately to past and future
non-economic damages for purposes of calculating prejudgment
interest on past noneconomic damages. [In dissent, Judge
Servitto opined that it was improper to consider the
plaintiff's request for attendant care services as being
made only in connection with non-economic damages, and that
there was sufficient
evidence in the record by which the jury could calculate an
award of damages for future attendant care services.]
Click for Majority
Click for Dissent
Boodt v Borgess Medical Center
- The
Michigan Supreme Court addressed the sufficiency of a
proximate cause statement in a notice of intent and held
that the statement did not comply with the requirements of
MCL 600.2912b. The Supreme Court noted that the notice must
describe the "manner" in which the alleged actions or
alleged omissions caused the death of the plaintiff’s
decedent. The Court held that it was not sufficient under
section 2912b to merely state that the defendants’ alleged
negligence caused an injury. Further, the Court reaffirmed
that a defective notice of intent does not toll the statute
of limitations.
A notice
of intent which does not contain the information required
under section 2912b(4) is not sufficient to properly
commence an action and therefore the complaint and the
affidavit of merit cannot toll the statute of limitations.
Click for complete opinion
Smith v Khouri -
The Michigan Supreme Court held that in determining
reasonable attorney fees for purposes of case evaluation
sanctions, the trial court should first determine the fee
customarily charged in the locality for similar legal
services. The Supreme Court instructed the trial court to
make this determination using reliable surveys or other
credible evidence, citing specifically to the Economics of
Law Practice Surveys published by the State Bar of
Michigan. The trial court may then consider adjusting this
attorney fee figure up or down, depending on other factors,
including the difficulty of the case and the experience of
counsel.
Click for complete opinion
Washington
v Sinai Hosp of Greater Detroit. This case, handled
by Tanoury Corbet
lawyers Linda Garbarino and Anita Comorski, resolved the
question of whether a
plaintiff/successor personal representative could file a
second action on behalf of an
estate after a previous, identical action filed by the prior
personal representative was
dismissed with prejudice on statute of limitations grounds.
In reversing the Court of
Appeals, the Michigan Supreme Court held that where all of
the elements necessary to
apply the doctrine of res judicata were present, the
doctrine barred the filing of the
second action. By operation of court rule, the involuntary
dismissal of the previous
action was a decision on the merits. The same matter was
asserted in the second suit
as the first suit. Finally, the same parties were involved
in the two actions where same
defendants were named and where the prior and successor
personal representatives
represented the same legal right.
Click for complete opinion
Al-Shimmari v Detroit Medical Center, the
Michigan Supreme Court held that the
dismissal
of a
defendant doctor on statute of limitations grounds under the
summary
disposition
rule is an
adjudication on the merits. The Court held that as a result
vicarious
liability claims directed
against the hospital could not proceed and must be
dismissed.
Click for complete opinion
Barnett v Hidalgo, the Michigan Supreme Court addressed
the admissibility of
affidavits of
merit during
trial. The Court concluded that affidavits of merit are
admissible
as
admissions by a party
opponent under MRE 801(d)(2)(B) and (C) . The Court, also,
alternatively found that such
statements are by a person authorized by the party to
make
statements concerning the subjects
listed in MCL 600.2912d(1). Finally, the
Court held that
affidavits of merit are admissible as
impeachment evidence because
they constitute prior
inconsistent statements of the expert
witness.
Click for complete opinion
|