TOV Injury and Safety Blog

Wrongful death medical malpractice case is dismissed by judge.

The Estate of Verploegh sued Dr. Edward Haughn and Suburban Medical Centers in Kalamazoo County, alleged professional negligence resulting in the death of Mark Verploegh.  Over a number of years, Haughn  prescribed hydrocodone, Xanax, Valium, Keppra, Depakote, Prozac and methadone for the decedent who had a history of chronic pain, depression, panic attacks and epilepsy.  Verploegh died nine months after his last visit to Haughn, and after receiving additional medications from another doctor, as a result of an overdose of prescription medications. 

The coroner could not determine whether the cause of death was an attempted suicide or simply continued abuse of prescription medications.  On that basis, the Court ruled that the family could not sue Haughn for over-prescribing because it could not prove that Haughn's care was a CAUSE of the man's death.  The family had maintained that the several-year course of medications was a breach of the standard of care that contributed to the eventual death.

Academic research by University of Texas, University of Illinois and Nowrthwestern University demonstrates malpractice "reforms" did not increase doctor supply

A recent study by three highly-respected Universities demonstrated that the wholesale "reforms" [anti-victim limitations on medical negligence recoveries] adopted in the State of Texas had NO impact on the supply of doctors in the state.  The study concluded that the supply of physicians operating in the state was relatively "inelastic" and not influenced by steps taken to protect doctors from negligence claims.

The authors concluded that their research was consistent with prior multi-state studies showing that there is no relationship between "tort reform" and physician supply.  Even though special interest-Republican "reforms...dramatically changed the malpractice environment..." in Texas, they did not have any impact on the number of doctors in practice--even in poorer rural areas or high-risk specialties.  

The authors also found that the "reforms" did not influence health care costs in the state.  On the contrary, studies in Texas have shown that the major influence on health care costs in Texas is "fee for service" medicine and physician-ownership of ancillary services they can charge to provide.  Lastly, the authors noted that  insurance companies have fought "tooth and nail" to eliminate public access to reliable claims data which the National Association of Insurance Commissioners has attempted to create:  without this data, the authors indicated it would have been  impossible to ascertain the true impact of "reforms" such as those undertaken in Texas.

The authors explicitly pointed out that there was no factual support for "reformers' " claims that the lack of a cap on malpractice awards deterred doctors from practicing in Texas or that adopting a cap had increased the number of practicing doctors.  Supply was not stunted before reform and did not measurably improve after--even in so-called "high risk" specialties.  Neither did it influence health care costs by eliminating or limiting the practice of "defensive medicine."  The article is entitled "Does Tort Reform Affect Physician Supply?  Evidence From Texas."  It can be downloaded at http://ssrn.com/abstract=2047433.

Republicans propose legislation that would grant immunity to ER and delivery doctors

This week, Republican legislators in Michigan proposed a special interest "tort reform" bill that would excuse doctors for negligence in the ER or in delivering babies.  Five bills have been proposed and they include provisions that would require the sitting judge to dismiss any case that evidenced the exercise of professional judgment--whether "good" or "bad."  The case would be dismissed, apparently, if the doctor had to think about what to do, even if his or her subsequent judgment was faulty and caused injury. 

Reportedly the bills also grant doctors immunity for their actions or decisions in the ER or delivery suite, even if the actions or decisions are negligent [unreasonable].  Given the influence of insurance and health care special interests on Republican legislators, it is likely some form of these bills will pass, despite the fact that no "malpractice crisis" exists to warrant denial of compensation to innocent malpractice victims.  Apparenly only drunk doctors will be held responsible for their mistakes in Michigan.

Medical malpractice wrongful death claim dismissed because tolling period is not applied

The Estate of Jerald Czarnecki sued Allegan General Hospital after Czarnecki died immediately after admission witha complaint of "shortness of breath."  Czarnecki died on April 20 of 2008, and a Personal Representative of his Estate was appointed that August.  Unfortunately, the PR and her attorneys did not serve a Notice of Intent to Sue  (NOI) on the Defendants until August 13 of 2010.  They were compelled by statute to wait six months from the date of the NOI to file suit.  When they did sue, six months later, the claim was dismissed with prejudice. 

Court addresses negligent physician credentialling claim; holds hospital not responsible for continuing to credential doctor with 17 prior lawsuits

Jesuben Englelhardt sued the St. John Health System after Dr. Rajesh C. Bhagat negligently performed surgery on Ehgelhardt's hand.  Bhagat struck a nerve causing permanent problems with Englehardt's hand.  Bhagat settled the claim by paying his insurance limits, apparently, and Englehardt continued the action against St. John.  He argued that St. John should have acted in response to Bhagat's 17 prior lawsuits to investigate Bhagat's competence. 

Engelhardt presented a credentialling expert who testified that if the Hospital had reviewed Bhagat's history, it would either have denied him surgical privileges or insisted that he be mentored.  The expert also affirmed that this process would have prevented Engelhardt's injuries, particularly since three of the prior claims involved surgeries similar to Engelhardt's.

Malpractice claimant who sues state hospital must comply with immunity and malpractie notice requirements.

William Ramsay died in his hospital room at the University of Michigan Hospital in 2005.  His wife, as the Personal Representative of his Estate, filed a notice of intent under the medical malpractice procedural rules, and then filed suit a few weeks less than five years after his death.  The P.R. did not file a state Court of Claims notice of injury within six months of the death, as would be required under governmentatl immunity rules.

The University of Michigan is a state institution, so claims against it must be pursued in the State Court of Claims.    While a Personal Representative proceeding under medical malpractice rules must normally be appointed within two years of the date of death--and then has a "normal" two-year limitation period in which to file a notice of intent and suit after the post-notice six-month "waiting period," the Court held that this procedure does not govern when suit is against a state entity.  Instead, the victim (or his family) must comply with both sets of procedural rules, meaning that an initial notice must be filed within six months of the date of injury, and then a more detailed notice must be filed to initiate the waiting period.

Supreme Court's conservative majority dismisses dental malpractice claim

Rodney Hanna sued his dentist, whom he claimed improperly capped two teeth.  Hanna claimed that among other problems, the dentist, Dario Merlos, DDS, had failed to perform root canals under the crowns he placed.  Hanna sent a detailed letter to Merlos, informing him of the claims of malpractice and then retained an attorney to sue.  The attorney filed a Complaint in Circuit Court which alluded to the attached Affidavit of Merit, but no one could locate the attachment.

The dentist's insurer sought summary disposition, arguing that Hanna's letter wasn't an adequate Notice of Intent to Sue and that the case must be dismissed because the Affidavit of Merit was not properly filed with Hanna's Complaint.  The trial court dismissed the claim, however, the Court of Appeals reversed.  It held that Hanna's letter of specific complaints was adequate to meet the Notice of Intent requirements.  It also held that since Hanna's attorney promptly filed a copy of his Affidavit of Merit when its absence in the court file was brought to his attention, "the interests of justice" did not justify permanent dismissal of his claim. 

This week the four insurance-oriented Justices on the Michigan Supreme Court summarily overturned the Court of Appeals' decision. It held that since there was no proof that the original Affidavit of Merit had been filed with the Complaint, the action must be dismissed (and cannot be filed again later).  It did not address "the interests of justice" as those interests don't particularly interest or influence the current Supreme Court majority.

Malpractice insurer discusses expenses associated with defending malpractice claims

In a letter to the New England Journal of Medicine, several doctors reviewing data from a national malpractice insurer attempted to quantify the cost of defending malpractice claims.  Of course, data from 50 states is inherently misleading in any one state, since there are 50 entirely different systems for proving fault and collecting damages, and 50 different responses to insurers' calls for "tort reform."  In many states, "reforms" have granted doctors and their insurers enormous special advantages, and, for example, damages are "capped" at levels ranging from $250,000.00 per injury to $1,000,000.00 per injury.  In other states, where consumer advocates have balanced the impact of big-money contributors, "reforms" have been more balanced and precise.

Conservative Supreme Court majority reverses lower court, dismisses death claim against Hurley ER because of defect in Notice

Carl Johnson was admitted to the Hurley Medical Center Emergency Room on November 22, 1997, with a diagnosis of atypical chest pain and to "rule out unstable angina and myocardial infarction."  He was discharged the following day with instructions to follow up with his family doctor and to maintain a low salt, low cholesterol and low sugar diet.  He suffered a massive heart attack that was fatal on November 26, three days later.  His family sued Hurley and its Emergency Room phyisicans.

Pre-suit, the family served Hurley with a Notice of Intent to Sue alleging that Johnson's discharge plan should have included beta blockers, aspirin to thin his blood and a recommendation to maintain a sedentary activity level until he was evaluated further.  The family described these measures as essential to meet the standard of care applicable to Johnson's emergency care and then alleged that "if the Hurley doctors had met the standard of care Mr. Johnson would not have died on November 26."

Federal Court allows injured workers to sue employer, insurer and "independent" [IME] doctors for fraud

A group of Cassens Transport Company employees who had been injured on the job sued Dr. Saul Margules, Cassens, and Cassens' self-insured claims manager, Crawford & Company, alleging that the three conspired to deny benefits to injured workers.  The suit alleged that Crawford consistently retained unqualified and biased physicians to render fraudulent reports disputing the workers' injuries or medical condition.

Court dismisses malpractice claim because dead woman's expert was "speculating" about potential to survive

Melissa Walker underwent bariatric surgery in 2000.  In 2008, her doctor, Brenda Zook, M.D., determined that Walker was malnourished after a prolonged period of diarrhea.  Zook sent Walker to a bariatric surgeon to assess whether her gastric bypass needed to be reversed.   The surgeon concluded that Walker's problem was a lack of protein in her diet, rather than the need to reverse the bypass.  Zook hospitalized Walker for sevreal days, but then released her, telling her to return to the Emergency Room "if she got worse."  She made two return trips to the E.R., seeking to be admitted, however, she wasn't admitted and died of septic shock on the morning of the second E.R. visit.  Here family sued Dr. Zook claiming, in essence, that Zook should have insisted on a reversal of the bariatric surgery.

Court again rejects malpractice insurer's argument that bankruptcy precludes victim's negligence claim

For the second time in less than a month, the Court of Appeals has rejected a malpractice insurer's argument that declaring bankruptcy destroys a victim's right to pursue a malpractice claim.  In this case Joseph Szyszlo awoke from orthopaedic surgery completely blind.  He argued that the anesthesiologist and nurse anesthetist were guilty of malpractice that caused his blindness.  Not surprisingly, the blind and badly injured man found himself declaring bankruptcy during the two year period when he was allowed to sue the St. Joseph Mercy Hospital and Trinity Health-Michigan doctors (including Bloomfield Anesthesia). 

Court of Appeals again dismisses malpractice claim because victim did not explain in pre-suit notice "how" negligence caused death

The family of Norma Jean Blocker sued her doctors claiming that their failure to identify post-surgical complications in 2002 resulted in Blocker's death in 2003.    The case has now been to the Court of Appeals three times, and each time Judge Henry Saad and his colleagues have dismissed it.  On this occasion, they were charged with determining whether the pre-suit Notice of Intent filed by Blocker's Estate was adequate.

Court holds that injured man may pursue malpractice claim on behalf of himself and bankruptcy trustee

David Pulice sued three doctors and Botsford General Hospital for malpractice before his bankruptcy Chapter 7 proceeding was completed.  He disclosed the injury claim to the bankruptcy trustee who didn't object to it being treated as an exempted asset.  Exempted assets are limited to about $20,000.00, however, and Pulice listed the value as "unknown." 

When he filed suit, the insurance attorneys for the doctors pesuaded the trial judge to dismiss the claim, holding that only the bankruptcy trustee had "standing" to sue on the injury claim.  The Court of Appeals rejected this suggestion, noting that Pulice still "owned" the exempted amount of the claim.  The insurance attorneys also argued that Pulice should not be able to pursue the full value of his claim, and that since his share was  less than the $25,000.00 jurisdictional limit of the Circuit Court, it should be dismissed.  Once again the court disagree, however, holding that Pulice could pursue the claim for its full value, although the Trustee would "own" anything above the exempted value of approximately $20,000.00.  Finally, the court rejected the defendants' rather absurd suggsetion that Pulice should be judicially estopped from pursuing the claim because he had disclosed to the Trustee that the case might be of limited value.

Court limits family of girl injured at birth to three causation experts

Alicia Day sued several nurses, Jeannie L. Rowe, D.O., John M. Murphy, M.D., and Blue Water Obstetrics on behalf of her infant daughter.  Day claims that McKenzie, her daughter, suffered permanent neurological damages after a delay in delivery following placental abruption.  Under Michigan's complicated medical malpractice law, Day's attorneys must call as experts separate individuals with qualifications duplicating the qualifications of each health care provider who contributed to the poor outcome.  The Day family must also provide expert testimony tying each breach of the standard of care to the poor result.  In order to satisfy these obligations, the family's attorneys argued that they needed relief from the trial court's order arbitrarily limiting them to three causation witnesses.  The Court of Appeals' decision was predictable, unfortunately, when the family drew a panel of three judges including Henry Saad and Kirsten F. Kelly.  The latter are judges dedicated to the defeat of consumer and personal injury claims.

Attention brought to immunity issue involving generic drugs

In most states, a drug manufacturer may be sued if a drug it patents is sold with inadequate warnings and instructions to consumers.  The FDA approves drug warnings and labeling, but the manufacturer remains liable if the language proves inadequate in practice.  Well, actually the manufacturer remains liable in all states except Michigan where "tort reformers" gave manufacturers immunity for all drug claims involving FDA-approved drugs (even if the approval was later withdrawn or originally achieved by fraud or falsified data).

Last year, the U.S. Supreme Court majority granted immunity to generic drug manufacturers for "failing to warn," with the conservative majority holding that since generic manufacturers were merely copying the drug and labeling from patented drugs, they owed no duty to consumers to provide further information.  This immunity grant created an unlikely situation. Consider this example:  Diana Levine, a professional musician who lost a hand when an injection of anti-nausea drug in the ER caused gangrene, collected $5.8 million dollars in damages against Wyeth, the drug manufacturer.  Debbie Schork suffered the identical injury in similar circumstances, however, her claim was dismissed without compensation, because the ER nurse injected her with a generic version of the drug.

Since 80 percent of prescriptions filled in the U.S. are now filled with generics; since many health insurers now require the use of generics and the law allows pharmacies to substitute generics for prescribed medications, there is little or no justification for granting generic manufacturers immunity for inadequate warnings and instructions.  The ultimate goal of a legal system should be to render justice that is uniform, predictable, and consistent.  The situation existing with regard to pharmaceutical manufacturers enjoys none of these characteristics.

Estate of Edgar Brown can file a new malpractice action against Dr. Peter Barrett

This week the Court of Appeals upheld the lower court's ruling that Brown's Estate can file a new death claim against the doctor whom the family claims was responsible for Brown's death.  This culminated the third trip to the Court of Appeals following Brown's 2001 death.  The family argues that Barrett should not have sent Brown home from the Hospital after Brown fell from the roof of his home and suffered multiple injuries.  The family argued that his death resulted from pneumonia caused by the combination of his injuries and the insertion of a chest tube to inflate his lungs, and that his discharge was premature and unsafe.  He died in an ambulance on his way back to the hospital one day after discharge.

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.   

Court reinstates medical malpractice claim dismissed after reference to missing x-rays

Sander Kalaj sued Dr. Syed Mahmood Ali Khan and Basha Diagnostics after Khan failed to diagnose Kalaj's C-5 neck fracture.  In preparing to sue, Kalaj employed another diagnostic radiologist to review the pertinent records and x-rays, and the reviewer confirmed in an Affidavit of Merit that Dr. Khan had breached the standard of care.  After suit was begun, however, it was determined that the x-rays reviewed by the Plaintiff's expert were not the x-rays Khan had referred to in making the botched diagnosis.  It turned out that Plaintiff's treating physician had signed out those x-rays during treatment and they could no longer be located.  Instead, the x-rays reviewed by plaintiffs were films taken by a chiropractor eight days after the alleged error.

Claims arising out of medication-overdose in Grand Traverse County Jail are dismissed

The family of Christopher Robin Morden sued the County Jail, the nurse and doctor paid to provide coverage in the jail, the jail's retained psychiatrist and her employer, Northern Lakes Community Mental Health, after Morden died while incarcerated.  After his arrest, authorities noted suicidal warnings and placed Morden on suicide alert.  Morden was already taking psychotropic medications, and these were maintained. 

Morden's condition did not stabilize and over the following two months he was examined by the nurse, the jail doctor and the psychiatrist periodically, with the psychiatrist apparently seeing him about every two weeks.  His medications were increased and new medications were prescribed.   His condition varied from "druggy" to relatively normal.  The psychiatrist believed that his mental condition had improved, but that Morden was suffering side effects. On March 26, the jail physician noted that Morden may be "overmedicated" but also noted that the psychiatrist had changed the medication regime three days earlier, so he took no further action.  Five days later, Morden died of a sudden cardiac event.

Higher court reverses dismissal of 34-year old woman's negligence case arising out of double-mastectomy where pathology report found no cancer

Stacey Van Buren identified a suspicious lump on her breast and visited the doctor for evaluation.  Her surgeon, Carlotta Maresca, M.D.,  performed a needle aspiration, sent the specimen for analysis in the Covenant Health System, and recommended an immediate double mastectomy.   Although the pathology report indicated no cancer was present, that message never made its way to Maresca, and she removed both of the 34-year old woman's breasts nine days later.  When Van Buren learned that the double-mastectomy had occurred in the absence of any cancer, she sued Maresca and everyone else in the chain of custody of the path report for negligence.  She argued that it was not medical malpractice, but rather a lack of "ordinary care" to allow such invasive surgery to occur in the presence of a benign pathology report.

Nurse who supervised and taught Hospital nurses was "actively engaged" in nursing and qualified to testify for malpractice victim

The family of Patricia Gay sued the Battle Creek Health System after Patricia died in the hospital.  They argued that Ms. Gay died as a result of negligent nursing care.  She fell from the commode when she reached to answer a ringing telephone and died two days later.  She was subject to a medical order that required that she receive constant nursing supervision whenever she was not in bed, and the family argued that it was negligence for the nurse who accompanied her to the commode to leave her there unattended.

Trial judge errs in dismissing malpractice claim after doctor's insurer's bankruptcy claim

The Estate of Samuel Alexander sued Trillium Hospital and Dr. Ramana Chennubholta, arguing that a misdiagnosis in the Emergency Room resulted in Alexander's death from pancreatitis.  Not long before trial, the doctor's insurer was declared insolvent and filed bankruptcy.  The trial court responded to the automatic bankruptcy stay by treating the case as "administratively closed"  and did not re-set the case for trial when the bankruptcy was closed.

Prisoner assaulted by State psychiatrist cannot hold the state responsible

In Langton v. State of Michigan, decided December 30, 2011, the Court of Appeals reversed the Court of Claims and ruled that Langton could not hold the State responsible for assault and battery committed by its psychiatrist on Langton while incarcerated.  Although it is well-documented medical malpractice for a psychiatrist to initiate a sexual or romantic relationship with a patient, and although the psychiatrist's letters revealed a clearly inappropriate "romantic" interest, and although the psychiatrist was convicted of criminal sexual conduct, the Court held that the psychiatrist's employer was not responsible for the wrongful conduct.

Although the State has immunity for many acts of its employees, it does not enjoy immunity for negligently providing "medical care or treatment."  The Court rejected the State's claim that the psychiatrist's misconduct did not occur in the context of providing medical care, yet it held that the State was not responsible for this misconduct.  The reasoning of the opinion is not entirely clear, but it seemed to be based on the concept that the State could only be responsible for the psychiatrist's malpractice if it negligently failed to respond to knowledge of the employee's intentional acts of misconduct.

Court holds doctor committed no malpractice on date of unwarranted surgery

Insurance defense attorneys were gloating in this week's January, 2012, Lawyer's Weekly over the dismissal of a medical malpractice claim alleging inappropriate eye surgery.  The woman patient sued her eye doctor alleging that he never should have performed the cataract surgery that damaged her eye.  The Defendants argued that the doctor's alleged error occurred weeks before surgery, when he recommended and scheduled the surgery, and that since suit was not filed within two years of the date surgery was first recommended, the claim was not timely.  The woman's attorneys argued that performing the unnecessary surgery was a negligent act in any event, and therefore suit based on the inappropropriate surgery could be brought within two years of the surgical date.

Supreme Court summarily decides malpractice claim; deems trial judge's errors "not inconsistent with substantial justice," excludes emergency standards.

The family of Daniel Jilek sued Carlin C. Stockson, M.D., and several other healthcare providers after Stockson allegedly provided negligent care to Daniel Jilek in an Urgent Care facility.  The family argued that Stockson misdiagnosed Daniel's chest pain, resulting in his death.  They argued that Stockson, a Family Practice specialist, was practicing emergency medicine in treating Jilek, and that Stockson failed to follow his employer's standards for treating patients complaining of new onset chest pain.

Court examines questions related to podiatrist's standard of care

Alice Collins achieved a modest ($117,000) verdict against Harvey M. Lefkowitz, DPM, Anthony Giordano, DPM, and Michigan Foot and Ankle.  She proved to the jury's satisfaction that Giordano breached the standard of care when he cut through her second metatarsal while operating to improve a bunion on the first metatarsal, and then failed to inform her of his error for several months (she learned from a third party).  The podiatrists appealed, arguing that the Court erred in admitting Collins' expert testimony.

"Failure to properly treat cancer" judgment is upheld; doctor's sexual advance to patient's daughter not "relevant."

Stephen William Robinson, Jr., M.D., apparently gave a note "inquiring about having a sexual encounter" to the daughter of Joyce Dale, during Dale's medical appointment at "Second Opinion, PC." Dale was being treated for adenocarcinoma.  Robinson, his mind apparently on other things, allegedly did not note that the pathology report made a treatment change from radiation to chemotherapy appropriate; he failed to inform the specialists of the revised path report.  Dale's daughter sued Robinson for malpractice wrongful death, but a jury entered judgment in his favor (probably concluding that the resulting delay had not changed Dale's outcome).  She appealed the trial judge's grant of the Defendants' motion to exclude from evidence Robinson's note requesting sex.  The Court of Appeals ruled that the lower court had properly excluded Robinson's note because it was not "relevant" to the question of whether failing to inform the specialists of the revised pathology report was a breach of the standard of care.

Claim arising out of rape in psychiatric award is upheld on appeal; recipient rights "decision" was not trustworthy or admissible

Mary Sloan was involuntarily admitted to Chelsea Community Hospital after a suicide attempt.  During her stay, a male patient entered her room and raped her.  The male patient had earlier been escorted from her room by staff after he entered uninvited.  Sloan sued the Hospital, arguing that it had improperly failed to protect her from the potential rapist.  She presented the testimony of two psychiatric nurses with a combined 50+ years of experience:  they testified that the nursing staff of a psychiatric unit owes a duty to vigilantly protect patients from this type of assault and that Chelsea's staff had violated the standard of care.  The jury awarded Sloan $100,000.00 in non-economic damages and $50,000.00 in economic damages.  Chelsea appealed.

Malpractice claim dismissed because attorneys misinterpret Court's ruling

When the Legislature re-wrote the book on malpractice, it required a 180-day waiting period--starting on the date a Notice of Intent is filed--before victims could sue.  It did not address, however, how this date would interact with the victim's duty to file suit within 180 days of "discovering" a claim that is more than two years old.  It also did not address what would happen if the Notice was technically defective and required amendment.  Those questions were later addressed to the Michigan Supreme Court, and as the composition of the Court changed, sometimes the answers changed as well.

Another malpractice case dismissed on procedural grounds

The family of Riley Shane Rhoades sued Trinity Health Michigan, Dr. Stephen Hickner and several other entities, arguing that Riley died due to complications sustained during a negligently managed delivery.  The Defendants peppered the family with discovery requests and the family's attorneys were slow to respond with deposition dates for the parents and for the 7 experts they had listed.  They also failed to produce a videotape recorded during the delivery.

Judge Kirsten Kelly and other appellate judges dismiss malpractice claim as "speculative."

Harold Brown sued David Burk, Richard Wacksman and Bay Eye Care after Brown's vision was badly damaged by a retinal detachment.  Brown had undergone cataract removal on his right eye through the defendants.  Allegedly he "moved during surgery" causing a tear in the posterior capsule.  He was not informed of the tear, however, and it was not investigated during two follow-up visits.  Eight days after surgery, he suffered a severe loss of vision in the eye and underwent emergent surgery for a detached retina.

Venue of malpractice case moved to location of death from location of treatment

Judge Kirsten Kelly enjoyed a good day on Friday when injury victims lost all three cases she participated in deciding.  One was a malpractice claim against Zia O. Farooki and several other physicians and medical entities including the DMC.  The family of Michael Grekowicz sued Michael's cardiologist and other treaters who failed to include an implanted ICD (defibrillator) in Michael's pacemaker after diagnosing a cardiac irregularity soon after Michael's birth.  He died of sudden cardiac arrest in Macomb County shortly after a car accident.

Another medical injury case dismissed on a technicality

Dr. Peggy Ann Nowak, M.D., performed a parotidectomy (removal of a parotid gland) on Elaine Johnson.  During the surgery, Ms. Johnson suffered severe burn injuries in the area of her left ear.  In her Operative Report, Dr. Nowak apparently concluded the burns were caused by the headlight she wore during surgery.  Johnson filed an ordinary negligence case against Nowak and William Beaumont Hospital, arguing in part that the headlight had not been properly inspected and maintained.

Wrongful death claim dismissed with prejudice where successor P.R. files late

Randall Cepeda died in Saginaw St. Mary's Hospital six days after a gall bladder surgery.  His family filed a wrongful death malpractice claim against three doctors and Mid-Michigan Surgical Specialists.  The P.R., Randall's widow, did not file the lawsuit within two years of her appointment as Personal Representative, however, as her attorneys believed that the six-month discovery tolling period would applly to the claim.  When legal wrangling in the higher courts resulted in a decision that wrongful death claimants could not take advantage of the six-month "tolling period" for malpractice injury suits, Cepeda's attorneys attempted to dismiss their claim voluntarily, so that they might re-file it promptly after the appointment of a new Personal Representative (who would have two years in which to act). 

Supreme Court denies family right to amend malpractice complaint

Edgar Brown fell from a roof and fractured several ribs.  He went to the Emergency Room, where his fractures were diagnosed and a chest tube was inserted to re-inflate a collapsed lung.  He was then sent home.  The next day, he went into cardiac arrest and died on the ambulance run to the hospital.  His family filed suit against the E.R. doctor, Peter Barrett, alleging that Barrett's management of Brown's care was negligent.

Court holds family lacked causation evidence in claim of improper discharge of psychiatric patient

The guardian of Sarah Laakso sued Hurley Medical Center after Sarah was struck by a car.  While the Court of Appeals opinion does not provide much detail, apparently Sarah was struck by a car while wearing dark clothes and walking on a dark street, approximately 60 hours after her discharge from the Hospital's Psychiatric Unit. The family apparently presented two experts who believed that the Hurley doctors had discharged Sarah too soon, and who offered the opinion that the early discharge was a "cause" of the behavior that lead to her being struck by the car. 

The Court of Appeals held that without more, this evidence was not sufficient to prove that her early discharge "caused" Sarah to be struck.  Must be it concluded that she would have been out wandering the highway in the dark, even if she was healthy enough to be released from the Psych unit.  That seems like a genuine issue for the jury to decide, based on the opinion testimony of qualified expert psychiatrists.

Supreme Court takes away malpractice defendants' obligation to pay fees

The family of Paticia J. Young won a wrongful death medical malpractice case against Partha Shanker Nandi, M.D., Troy Gastroenterology and other Defendants, arising out of the 2005 death of their daughter.  The verdict was eventually reduced to a judgment limited by the $280,000.00 "cap" plus interest and some attorney fees.  The Defendants filed repetitive appeals, delaying the entry of final judgment until 2009.  In 2011, the Court of Appeals overturned the trial judge's application of the 2009 "cap" on non-economic damages and this month, the Republican majority upheld that decision and also took away the award of attorneys' fees incurred by the family in the post-judgment appellate process.  The Supreme Court said "There is not a sufficient causal nexus between the post-appeal proceedings and the defendants' rejection of the case evaluation." 

Bottom line:  if the Republicans on Michigan's Supreme Court "have your back" you can refuse settlements, bargain in bad faith, utilize every tool of delay and expense, and not incur the sanctions provided for under the Court Rules.   Ultimately, even clear malpractice awards arising out of negligently-caused death can be reduced to an amount that is an insult to the value of a child.   The three Democrats elected to the high court disagreed with this outcome.

Feds continue to document payments by device makers to surgeons

Still wondering why that recent hospital procedure was so expensive?  Maybe it was the several thousand dollar cost of the medical device used by the surgeon.  Wondering why that cost so much?  Maybe because some surgeons earn nearly a quarter million dollars annually with payments from medical device makers.  A study published in the Archives of Internal Medicine examining the disclosures of five major medical device manufacturers showed that they paid surgeons more than $198 million dollars in 2007, alone.  The data comes from a U.S. Senate investigation sparked by disclosures that Medtronic had paid surgeons to promote the use of it's since-discredited bone-growth implant Infuse and perhaps fudged their data on infections and complications.

Basic techniques like hand-washing save "100s of [childrens'] lives" in recent study

Medpage Today published the results of a recent study by the National Association of Children's Hospitals and Related Institutions.  It looked at data from the first 29 hospital ICUs to adopt guidelines developed by Johns Hopkins and the University of Michigan for management of central lines and catheters.  The basic "maintenance bundle" of guidelines emphasizes hand-washing, timely replacement of dressings and devices and use of pre-packaged supplies.  Pediatric-ICU central line-associated blood streat infections were reduced by 56%, from a rate of 5.2 per 1,000 patient-days to a rate of 2.3.  Savings kids' lives by attention to sterility:  maybe our practices have been more barbaric than we suspected.

Court holds 8 year-old girl cannot attend her own malpractice trial

This month the Georgia Supreme Court will be hearing an unlikely constitutional argument.  Kyla Kesterson has filed an appeal, through her Next Friend, of a trial judge's ruling that she could not attend the medical malpractice trial against her doctor.  The doctor's lawyers argued that Kyla's injuries were so severe that the jury, if exposed to the injuries for too long, would render a decision based solely on sympathy. The trial judge granted the doctor's [insurer's] lawyers' motion and limited Kyla to three brief appearances in the courtroom. 

So far as we know, this is the first ruling of this kind in the U.S.  This unprecedented denial of the young woman's right to be present at her trial would only be possible in an atmosphere where the financial interests of insurers are weighed more heavily than the due process rights of a catastrophically-injured girl.  Usually we see this kind of ruling coming only from a jurisdiction such as China, where individual rights are historically downtrodden.  Odd that this decision would be handed down within one year of the U.S. Supreme Court holding that corporations are citizens having the right to make unlimited political contributions.  Wonder if they could be excluded from a trial?

Our system of justice in this country is being overwhelmed by corporate money.  In another generation, the only difference between our courts and the Chinese courts will be that ours are dominated by for-profit corporations rather than the central government.

New infection guidelines show significant impact on hospital infections.

Bloomberg News reported today that the Department of Healthand Human Services has concluded that the rate of four common hospital ("nosocomial") infections dropped significantly in 2010.  The number of patients who acquired methicillin-resistant Staph (MRSA) declined by 18 percent.  There was also a 33 percent reduction in bloodstream infections (sepsis) caused by insertion of central lines.  Surgical-site infections were reduced by ten percent and urinary tract infections were down by seven percent. 

These developments are not coincidental. They arise out of work by Johns Hopkins and the University of Michigan in popularizing the institutionalization of basic infection-preventing measures and the federal government's decision to reduce reimbursement of expenses resulting from preventable infections.

Texas report repudiates claims that "reforms" delivered benefits

The Fort Worth Star Telegram of October 12 published an article describing the findings of a Public Citizen report that refuted the claim that malpractice reforms had benefitted medical care in Texas.  The "reforms" enacted in 2003 did not reduce health care costs or insurance premiums, which have risen faster than the national average since 2003.  During this period, the number of Texans without health insurance, and their percentage of the total population, have also risen faster than the national average.  The legislation also did not improve the per capita number of doctors in the state (i.e., doctors did not stop leaving the state or flock in, as suggested by some).  One of the authors of the Report suggested that the only "winners" from Texas "reforms" were doctors and insurers. Malpractice payouts have dropped by 65% and malpractice premiums have dropped by approximately 50%.

Federally-sponsored task force recommends against prostate screening for men

The United States Preventative Services Task Force issued a recommendation this week that men not undergo routine prostate cancer screening.  So-called PSA or prostate-specific-antigen testing has become routine with many physicians and is now a very lucrative business for the manufacturers of the test, the labs who process tests, and the doctors who treat prostate cancer.  Nevertheless, the Task Force called for elimination of routine screening and cited five well-controlled clinical trials to support its conclusion that PSA screening does not save lives and does cause untold misery to many men.

Study by cardiologists demonstrates better care, higher survival rates for privately insured patients

In reporting a study that was described as "shocking and equally disturbing" by one of its cardiologist authors, the September 27 issue of the Journal of the American College of Cardiology documents that the outcomes for cardiology patients vary by the type of medical coverage they enjoy.  HealthDay reported on September 21 that the study evaluated the medical charts of 99,508 patients from 244 different hospitals that had agreed to participate in the AHA national quality improvement program.  Even in these hospitals that had opted to participate in a quality improvement program, it was determined that Medicare and Medicaid patients and uninsured patients were less likely to receive certain essential treatments and more likely to die in the hospital, than  were patients who are covered by private insurance plans.

The study noted that "disparities do exist" and they are "associated with worse outcomes."  One of the authors explained that "care continues to be tailored to the individuals bsed on their pocketbook, and not on their condition." Patients with no coverage, Medicare or Medicaid were less likely to be given any of several blood pressure medications and less likely to receive an implantable cardioverter defibrillator, all "proven therapies" that result in documented improvement in recovery and decreased mortality.  In part because of the failure to provide evidence-based therapies, the hospital stays for uninsured or publicly-insured patients are also longer.  The authors questioned whether the results are also influenced by the obvious socio-economic disparity between privately-insured patients and the the other groups with whom they were compared.

Johns Hopkins study confirms temporary ER staff pose higher medication risk for patients

On August 30, 2011, it was reported that Johns Hopkins' researchers had analyzed 24,000 mediation errors that occurred in 592 U.S. hospitals between 2000 and 2005.  The medical researchers concluded that care involving temporary emergency room staff doubled the risk of medication errors, when compared with mishaps involving permanent ER staff.  Researchers noted that while temporary staff may be relatively unfamiliar with a hospital's procedures, contributing to error, it was also likely that hospitals employing temporary staff may have more quality of care issues, in general.  It is also very possible that professionals available to provide temporary staffing are not as competent as professionals who have been employed on a permanent basis.  Certainly they would be less "vested" in the professional performance of their temporary employer.  It seems logical, also, that temporary professionals are more likely to be serving in smaller hospitals where a particular medication or condition would be encountered less frequently.  It is a well known phenomenon that medical professionals improve with practice: don't employ a surgeon to cut on you if he or she doesn't have a crew that performs the subject surgery, or a closely-related procedure, 200 times per year. 

Regardless of the genesis of the errors, it is worth noting that Hopkins' researchers found more than 4,000 medication errors, on average, for each of the 592 hospitals over 6 years, or an average of about two per day, per hospital.  In spite of this error rate, some Michigan legislators would like to confer immunity on any health care professional taking care of an E.R. patient:  these patients would have no recourse for errors.  This is, obviously, an over-reach by insurance companies and health care corporations, given the frequency of the mistakes, the well-compensated and well-educated nature of these professions, and the potential gravity of the errors.  Health care providers enjoy enough protections through the malpractice "reforms" adopted in Michigan in the 1980s, 1990s and early in this century.  The claims history doesn't justify granting these careproviders complete immunity for their own mistakes. The article is published in the Journal for Healthcare Quality, July/August 2011 issue.

Our experience mimics the Johns Hopkins findings, with temporary ER staff commonly involved in Emeregency Room mishaps.  In our most recent case, a temporary ER physician staffing a rural hospital failed to take action in response to an overdose ofa new diabetic medication ordered by the family doctor.  The 61 year-old marginal diabetic was sent home after less than four hours; at home, she suffered a seizure, brain damage and death. Standard ER and Internal Medicine textbooks recommend hospitalization of these patients for at least 24 hours.

Contract claim against Nursing Care Center for death of parent is dismissed

The family of William Adam sued the Sisters of Bon Secours Nursing Care Center, alleging negligence and breach of contract.  The family claimed that poor care provided to William caused his death, and that the care violated the statutory duties of the Care Center to its patients as incorporated into the parties' contract.  Unfortunately, the family did not comply with the medical malpractice procedural requirements, including filing a multi-page Notice of Intent to Sue that explains to the professional what was done wrong and how it violated the standard of care and caused the death; and then waiting six months before filing the Complaint accompanied by Affidavits of Merit from medical professionals documenting the errors.  Given the procedural error, the family's negligence claim was dismissed. 

Malpractice claimant cannot sue hospital where she cannot identify employee who allegedly gave her bad advice.

Rasheedah Pearson sued several doctors and Detroit Receiving Hospital.  She alleged that an employee of the hospital caused her to secure an unnecessary abortion by telling her, incorrectly, that a Depo-Provera injection she received would put the health of her fetus at risk.  She also sued the doctor who performed the abortion, claiming he failed to correct the misunderstanding before performing the procedure.

Hospitalized patient did not sue quickly enough after "suspecting" malpractice

Mary Dennis was hospitalized for unrelated reasons when physicians at Henry Ford Hospital told Mary and her daughter that they had discovered colon cancer and that it had been present for at least five years.  Dennis filed a Notice of Intent to Sue six months and seven days later, claiming that the Henry Ford physicians who treated her in 2006 were guilty of malpractice for failing to inform her of the presence of the tumor.  The Court held that Mary's claim must be dismissed with prejudice because she didn't file the Noticeof Intent to Sue within six months of "discovering the existence of her claim." 

The Court of Appeals judges noted that the Engler Majority of Michigan Supreme Court Justices has previously ruled that the six-month discovery rule standard "does not require that the plaintiff know that the injury, in the form of the advancement of the disease process, was in fact or even likely caused by the defendant doctors' alleged admissions:"  rather the time to sue begins to run as soon as the victim "should have known of a possible cause of action."  The judges held that no time is allowed the victim to investigate and confirm a "possible" claim and the time available is not "tolled" while the patient is hospitalized--absent proof of actual mental incapacity.