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.]
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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.” 
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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.]
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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. 
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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.
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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.
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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.
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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.
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