TOV Injury and Safety Blog

University of Michigan investigation demonstrates filthy surgical instruments are common hazard

It does little good for your surgeon to "scrub up" carefully, if the tools of his profession harbor bacteria.  In part because of a design flaw in many surgical instruments, it turns out that bacteria and debris are frequently carried from patient to patient in inflow/outflow cannulas, arthroscopic shavers, endoscopes and other instruments. Recent investigations have documented literally hundreds of infections, some fatal, transported within these instruments because the medical professionals using them had not followed manufacturers' instructions on cleaning.  In other cases, however, investigators have determined that the manufacturers' instructions are simply not adequate to remove surgical debris (and germs). 

Records from Narconon used to prove woman did not sue within six months of "suspecting" malpractice

Michelle Craig sued her doctor, Lars Andersen, D.O., arguing that Andersen was negligent in recognizing that she had become addicted to pain-killing medications.  Andersen asked the court to dismiss the case; his insurance attorneys argued that Craig had waited too long to sue.  In support of Andersen's motion, the attorneys submitted records from Narcanon where Craig had discussed issues suggesting that she suspected that her problems were caused by addiction.   

Woman who dismissed pro bono lawyer and settled claim cannot sue him for malpractice

Perhaps as further documentation of the axiom that "no good turn goes unpunished," Kurt Koehler agreed to give free advice to Fengmei Li after she was allegedly wronged by her former employer.  Koehler apparently gave the woman his appraisal of the settlement value of the claim, as she was insistent on settling it, and he apparently underestimated what the employer was ultimately unwilling to pay.  In any event, Li decided to "go it alone," fired Koehler, gave the employer a higher demand and settled the claim.  She then sued Koehler, arguing that he caused her to settle the case for a number that was not the true value of the case.  The Circuit Court dismissed and the dismissal was upheld by the Court of Appeals.  The Court held that Li could not prove that Koehler had caused her injury--particularly since she fired him and settled the claim on her own.

Plaintiff cannot file new claim of fraud based on perjury in previous case

Michael Zattlin sued the Alden State Bank and its attorneys, arguing that together they had conspired to defraud him in a debt and mortgage action.   Zattlin claimed that the Defendants had filed affidavits in support of their Motion for Summary Disposition which they knew to be false. He alleged that all parties who assisted in preparing the affidavits knew that the affiants did not have first-hand knowledge of the allegations contained in the affidavits.

The appellate court ruled that while Zattlin had raised questions of perjury, the perjury was a fraud intrinsic to the prior lawsuit and therefore it could not serve as the basis of a subsequent claim.  Only extrinsic fraud ("fraud outside the facts of the case that prevents a party from an adversarial proceeding") can serve as the basis for a separate cause of action.  The remedy for intrinsic fraud must be found within the rules governing due process in the initial cause of action.

Government employees aren't responsible for sexual assault committed by a third person

Julie Srda, Next Friend of a child, sued employees of the Michigan School for the Deaf, alleging that the child was sexually assaulted by another student through the gross negligence of the School employees.  The Court of Appeals issued an opinion holding that the employees would not be responsible, regardless of the facts of the employees' negligence, because "the" cause of the incident would be the criminal action of the assaulting person--regardless of his mental capacity or legal responsibility, and regardless of the fiduciary duty owed the child by the school employees.

Sheriff's Deputy forced to early retirement by injuries cannot sue homeowner who failed to clear ice and snow

Dominick Spadafore, an Oakland County Sheriff's Deputy, was called to Wayne Dale Bailey's home because Bailey's son had run away.  Bailey's son ran away after being told to shovel snow.  After meeting with the parents, Spadafore was leaving the home when he slipped on ice on the porch and suffered injuries that lead to his retirement.  The Court of Appeals sympathized with Spadafore's situation, but noted that under prior rulings of the "Engler Majority" the ice and snow that Baileys had not addressed were an "open and obvious hazard." Since the hazard was "open and obvious" the homeowners owed no duty by the  homeowner to make the hazard safe--even though the Deputy was invited to the premises and obligated to respond.

Pioneer State compelled to pay mold loss after mismanaging claims procedure

Barbara Pearson's cottage in Iosco County was damaged when a pipe broke and the furnace malfunctioned.  She alleged that the insurer re-started the furnace without adequately addressing the leaked water, resulting in a pervasive mold problem.  The insurer was not satisfied with the Proof of Loss Pearson filed and demanded supplemental proofs.  When those were provided it demanded a supplemental, signed proof of loss.  When that was filed, Pioneer's counsel refused to authorize a settlement of the claim because the [amended] Proof of Loss was not "timely" filed (within 60 days).  Pearson sued, and ultimately the Court of Appeals upheld her claim, although the judges' reasoning differed.  Two judges deemed the insurer at fault in failing to adequately document to Pearson the deficiencies in her original Proof of Loss and supporting data. The third judge concluded that regardless of Pioneer's conduct, the insured had "substantially complied" with the policy terms, rendering her claim enforceable.

Insurer must honor its obligations to innocent co-insured despite fraud by another insured in claiming fire-damaged contents

Roxanne Hicks was denied any insurance proceeds after her home burned because her husband had mis-stated some of the contents damaged in the dwelling. The Supreme Court recently ruled that Hicks, an innocent victim of the fire and the husband's fraud, was not prohibited from collecting for her losses.  Her sympathetic story is explained in a prior decision at 490 Mich 888.  On remand to the Court of Appeals, the insurer, the Auto Club, argued that an exclusion in its policy allowed it to refuse to compensate even an innocent co-insured after fraud by a claimant.

AutoOwners forced to pay PIP benefits after suicide attempt; failure to acknowledge role in HomeOwners policy is ignored

Bronson Methodist Hospital incurred $53,000.00 in medical expenses to treat April LaFountain after a single-vehicle accident.  LaFountain ingested a large quantity of anti-depressants in a suicide attempt on an isolated dirt road.  She then decided to move her vehicle to a different location, fell asleep and crashed the car.  AutoOwners argued it owed no PIP benefits because LaFountain's injuries (several fractures) were "intentionally incurred."  The appellate judges ruled that AutoOwners did not adequately document its objections to the lower court's rulings and refused to overturn the judgment. 

AutoOwners also argued that LaFountain was actually insured by HomeOwners Insurance Company, a wholly-owned subsidiary of AutoOwners, and for that reason the judgment should not stand.  The judges pointed out that AutoOwners did not raise this issue after its initial Answer. Given its failure to ask the Court to rule on the issue or devise appropriate instructions; given that an AutoOwners adjuster originally managed the PIP claim; and given that the claim was managed with correspondence on letterhead confirming the mutual ownership of the two companies, the court ruled that jurors were not unreasonable in concluding that LaFontaine was insured by AutoOwners.

City park limitation on solicitation is likely to be struck down as over-broad

The Sixth Circuit overturned a District Court in a ruling on a preliminary injunction, and ruled that a City of Fairborn ordinance was unlikely to stand given its overbreadth.  The City allowed a park to be used for a Lions Club function, and as part of the use permit, it allowed the users to prohibit any soliciting outside a rented booth.  Two residents objected on the ground that the permit prevented them from exercising freeedom of religion in proselytizing the crowd that gathered for the event.  The Court held that the individuals who objected were likely to prevail in their claim that the restricition on free speech in a public park was probably too broad, not adequately tailored to the needs it was addressing, and unlikely to withstand constitutional objection.