TOV Injury and Safety Blog

Sixth Circuit overturns mis-application of Michigan law in wrongful death.

Nickie Donald died when a 28' steel beam loaded on an E.R. Express semi-trailer struck a bridge overpass and fell onto the highway, striking Donald's cab.  Mai Roquemore, the Personal Representative of Donald's Estate sued the owner, driver and three other entities, including the companies that loaded the beam on the truck for negligence.  The U.S. District Court dismissed the latter claims, holding that a Michigan law immunized everyone but the owner of the truck from liability.  The Sixth Circuit repudiated this over-broad reading of a statute intended to immunize bridge authorities under similar circumstances.

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.

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 holds that where joint custody exists, child is domiciled in both homes for purpose of no fault coverage

Josalyn Lawrence suffered fatal injuries in a car accident.  Her mother's car was insured with Farm Bureau and her father's car was insured with the Grange Insurance Company. The parents were divorced and the court had awarded them joint legal custody of Josalyn.  She stayed with her mother most week days but maintained a bedroom and possessions at her father's home and spent most every other weekend with him. 

Farm Bureau paid Josalyn's PIP benefits (medical and a small burial expense) and the Grange refused to reimburse one-half of these expenses.  The Grange argued that Josalyn's sole domicile was with her mother and that its policy dictated that the insurer for her "principal domicile" was solely responsible for PIP benefits.  The trial court and the Court of Appeals rejected this argument, holding that Josalyn was domiciled with both parents for purposes of the no fault act.  The Court of Appeals also noted that Grange's attempt to define a "principal" domicile excusing it from shared PIP responsibility was illegal and not controlling. 

It would be interesting to evaluate whether the courts would also give the family the benefit of any uninsured or underinsured motorist coverage that they may have purchased; or, whether the insurers will be allowed to enforce a "primary domicile" provision to refuse to pay these coverages where the benefit of a shared domicile would inure to the premium-paying family.

Court allows rare claim against teachers to go to trial in wrongful death case

Maria Anderson, sued two teachers at the Swartz Creek Middle School after her sixth-grade son drowned during a physical education class.  Because of governmental immunity, she could not sue the school system, and can only sue the teachers if they were guilty of "gross negligence" that was "the" cause of her son's death.

Anderson provided evidence that a sixth and a seventh grade class were combined in the pool, more than fifty kids, when one of the teachers decided to take his class to the pool because the gym was occupied.  His class received only five minutes of instruction and inadequate testing before they were released for "free swim."  That instructor then left the pool to enter attendane in the computer--a task he was not time-limited to perform.

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."

Victims of car accident cannot sue owner of car stolen from driveway

The family of Angela Readus sued Michelle Rogers claiming negligence.  The facts were not in dispute.  Rogers started her car in the morning and then returned to the house to gather her kids to go to school.  The car was stolen while it was warming up in her gated (but not locked) back yard.  The perpetrator then caused a motor vehicle collision which killed Ms. Readus.  Her family argued that Rogers bore some responsibility for the collision because Rogers had left her car running unattended in a neighborhood where there was a history of car thefts.  The Court rejected this theory and dismissed the wrongful death claim against Rogers.

Probate Court can award compensatory damages against government actors guilty of contempt, despite immunity statute

At his family's request, the Kent County Probate Courtt ordered the Sheriff's Department to detain Stephen Bradley and place him in protective custody.  The Department failed to act and nine days later Bradly committed suicide.  The family attempted to sue the Department for negligence but their claim was dismissed because the actors involved enjoyed "immunity."  The attorneys then sought compensatory damages through the Probate Court, based on the court's statutory authority to compensate persons injured by the violation of a court order.  The Court of Appeals concluded that the family had articulated a valid statutory claim that was not blocked by Michigan's immunity statute.

Occupants of stolen vehicle cannot sue officer after high-speed chase and bump

The families of a catastrophically injured young man and another man killed in the collision sued the City of Taylor and officer Phillip Alton Biggs, arguing that Biggs was negligent in pursuing and bumping a stolen car driven by another young man.  The City argued that since the vehicle must have known that the vehicle was stolen, and since they had allegedly been drinking, smoking marijuana, and contemplating shoplifting, their families could not argue that the officer was partially at fault in causing their death by bumping their vehicle at high speed.  They were lumped in with the driver as "wrongdoers" whose wrongful actions gave rise to the necessity of the police chase:  therefore, despite evidence that one of more of the young men tried to persuade the driver to stop the car or let them out, they were precluded from any legal action even if the officer was negligent.

Bailiff supervising eviction is sued for assault and gross negligence

Fred Dixon appealed to the Court of Appeals after the Circuit Court refused to dismiss a wrongful death/assault action against him.  The action was brought by the family of John Mazur.  They alleged that Dixon, a court bailiff, threw Mazur against a telephone pole and battered Mazur's head while executing an eviction order, resulting in an intracranial bleed and Mazur's death.  Dixon argued that he was entitled to immunity as a "state official" and as a quasi-judicial officer.  The Court denied Dixon's claim on both grounds.  It noted that under existing precedent, not all state employees are state officers and Dixon is analogous to a State Trooper--and thus not a state "official."  The Court also held that there is no quasi-judicial immunity for an alleged assault.

Another Underinsured Motorist policy is interpreted to deny the insured benefits

Joseph P. Esmer was killed and several people were hurt when Caitlin Grubb lost control of her vehicle on a wintry US-2 in Mackinaw County.  Esmer's Estate sued HomeOwners Insurance Company, a subsidiary of AutoOwners, claiming that it owed Underinsured Motorist Coverage to Esmer.  Grubb had purchased liability insurance in the amount of $500,000 per person and $500,000.00 per occurrence.  The latter limit was then divided among the various claimants giving $270,000 dollars to the various injured parties and $230,000 to the Esmer Estate.

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.

Children not removed from abusive parents despite multiple incidents of neglect cannot sue protective service workers

In a major new holding, the Court of Appeals rejected wrongful death claims brought on behalf of two dead children.  One child suffocated in a house fire after being chained to her bed, while the other child was murdered by his father.  In both cases, the authorities had been alerted to multiple abusive episodes in advance of the fatal events.  The Republican Court of Appeals judges ruled that Michigan law provides no remedy for the kids' estates.

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.

Court holds lower court must conduct trial on the merits to assess fault by three motorists

The family of Edilee Kail Roberts sued three separate drivers after Edilee was killed in a car-motorcycle collision.  Roberts was north bound on her bike on M-37 near Newaygo when a truck driven by Travis Adams crossed the centerline and killed her.  Adams argued that he was forced to cross into the northbound lane when the van in front of him stopped abruptly in the southbound lane.  The van driver argued she did not slow or stop abruptly and the driver of the truck in front of her argued that he did not stop abruptly after missing a driveway he had intended to enter. 

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.

Revision to DSM 5 will likely include depression resulting from grief

The New York Times reported last week that the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) published by the American Psychiatric Association will likely include a sub-classification of depression resulting from the loss of a loved one.  The DSM 5, the first revision since 1994, will be controversial in this regard as practicing Psychiatrists disagree about whether normal grieving ("bereavement") should be classified as depression.

The current DSM did not include bereavement as a form of depression.  Under the current criteria, a patient must display five of the nine symptoms of depression for more than two weeks in order to be diagnosed with that condition.  The symptoms include, for example, sleeping problems, feelings of worthlessness, inability to concentrate.  Research suggests that 8 to 10 million people lose a loved one each year and that between one-third and one-half would qualify as "depressed" under these criteria for more than one month.

Other controversies arising out of the new DSM include a re-classification of autism that would significantly reduce the number of persons diagnosed, and the promulgation of a new classification "attenuated psychosis syndrome" which some treaters believe is a thinly-veiled attempt by Big Pharma to sell more drugs.

Court holds that parents cannot sue owners of home for death of drunken minor who committed suicide

The Court of Appeals upheld the dismissal of Rita Costigian v. Kevin Plets and Cindy Plets.  The Plaintiff, Rita, was the mother of Jonathon Costigian and the Personal Representative of his Estate.  She sued the defendants after Jonathan hung himself in the Plets' basement.  Jonathan and the Plets' son had previously consumed alcohol at the Plets' home, apparently, and when the Plets left the house on an evening in May of 2008, a minor drinking party ensued.  When the Plets got home, they kicked some kids out, called parents to let them know what happened, and left the drunken kids to "sleep it off."  In the morning, they discovered Jonathan a suicide in the basement.  His parents sued, arguing that they were negligent in allowing the party to occur and in failing to anticipate Jonathon's suicide.

Supreme Court summarily dismisses death case against Royal Oak

The family of Thomas LaMeau sued the City of Royal Oak after LaMeau struck a utility pole guidewire embedded in the sidwalk, severing his spinal cord at the C-3 (neck) level.  LaMeau had been at a party where he became intoxicated.  He was riding home, on the sidewalk, on a motorized bicycle, in the dark.  Unknown to him, one of Detroit Edison's utility guidewires posed a fatal hazard.  The family argued that the City was negligent in failing to maintain a safe sidewalk and that two City employees were grossly negligent because they ignored multiple warnings from experienced individuals, and two prior incidents, and insisted on paving the sidewalk without requiring Edison to remove the guidewire.  Both the trial judge and the Court of Appeals agreed with the family that these issues should be resolved by the jury.  The Republican majority of the Michigan Supreme Court summarily disagreed, however, reversed the lower courts, and ordered the claims against the City and its employees dismissed.  It did not issue an opinion, however, and explained its actions in one-sentence of a single paragraph order that made reference to the reasons offered by a lower court judge.

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). 

Settlement of creditor's claims does not include wrongful death recovery where no good faith claim existed

Paul A. Smith committed suicide owing Huntington National Bank and Comerica Bank somewhere between 17 and 18 million dollars.  The banks sued his Estate and the Estate took the position  that improper actions by the bank had caused Smith to commit suicide.  Ultimately, the case was resolved with a savings of one to two million dollars, waiver of the Estate's redemption rights, and a release of all claims against the banks.  The Estate did not identify any of the savings as a wrongful death recovery, however, and did not attempt to distribute any of the recovery to Interested Persons.

Family's death damages are limited--but not eliminated

Michael Jago was killed when his car was struck broadside by a State Police cruiser at an intersection.  Lesley Jago sued the State Police on behalf of herself and Michael's minor son. The State Police argued that it owed no damages to Jago's family, even if the driver of the cruiser was negligent, raising several statutory arguments.

Trial court's wrongful death allocation is upheld on appeal

Jennifer M. Barker was killed in a motor vehicle collision and the wrongful death proceeds were allocated by the Macomb County Probate Court. Jennifer's mother appealed the Probate Judge's decision, arguing that it was an abuse of discretion because the Judge awarded her less than the father/Personal Representative had recommended she receive.

Family of drowning victim cannot sue

Ursula St. Clair sued the Bayview Yacht Club after her sister drowned in the Club's Marina.  The sister, Layla Deitz, had been drinking in the Club's bar at a private party when she was kicked out of the bar because she was visibly intoxicated.   She then accompanied William Carleton, II, to his yacht, where the couple were discovered by another boater having sex in a  rigid inflatable boat.  Carleton claimed that Deitz was embarrassed at her circumstances and insisted that he leave.  In any event, he did drive away, leaving the drunken, upset young woman on the dinghy.  Her body was discovered floating near the marina days later with bruises on her legs and a bruise on her temple. 

Malpractice victim's claim is dismissed for lack of proof of "causation."

Aaron Forrest Ames sued Gregory Strauther, M.D., the Gratiot Community Hospital and a number of other doctors after Ames' mother died following a nightmare of surgeries and complications.  In 2002, the decedent was admitted to Gratiot Community with abdominal pain and underwent gall bladder surgery.   It was to have been laparascopic surgery, but the doctor converted to "open" surgery after experiencing excessive bleeding from the liver.  Ultimately, Mrs.  Ames was transferred to Spectrum Hospital where she underwent a repair surgery. 

The decedent was returned to Gratiot, where she failed to thrive for another month before she was ultimately sent to the University of Michigan for evaluation and another surgery.  The U of M doctors discovered an "occlusion" of the right hepatic duct--believed to have resulted from the "misplacement of a surgical clip" by Dr. Strauther during the original surgery. During this surgery, Ames' cecum was perforated and ruptured.  She became septic and died 24 hours later.

Dramshop case may go forward

Martin Stott was killed by a drunk driver, Dennis Brown.  Brown had spent the day drinking at several bars, including the Oakwood Lounge, Inc., in Ingham County, where he drank through the lunch and dinner shifts, became loud, and the bartender had to tell him several times to quiet down.  Eventually the bartender  took away his drink and kicked him out.  He proceeded to run down the Plaintiff's Decedent, who was a road construction flagman.

Estate of man suffocated by security officers in E.R. may move their death claim to federal court

Ambulance attendants transporting Edward Collins to the Emergency Room at Huron Valley-Sinai Hospital called in to warn personnel that he was agitated and combative.  On arrival he was restrained by two nurses and two security officers; in the process he suffered a cardiac arrest.  The medical examiner ultimately concluded that he was suffocated by excessive pressure on his chest.

The family sued the involved personnel in federal court, alleging a violation of constitutional rights, and in state court alleging negligence.  Eventually, they sought to transfer the entire case to federal court and the state court judge allowed them to dismiss the state claim "without prejudice."  The Defendants appealed, arguing that the family was "forum shopping" to avoid state medical malpractice procedural rules which some federal courts have refused to enforce.

The Court of Appeals rejected the defense claim and upheld the  dismissal without prejudice.  It noted that the case was properly treated in a unified manner and that Defendants' speculation about motive was not a proper foundation to deny a fundamental procedural right.

Family becomes embroiled in dispute between automobile and medical malpractice insurers

Richard Anthony Jackson suffered disc injuries in a motor vehicle collision.  His doctors admitted him for back surgery at the DMC, however, he died during the surgery.  When his family sued the car owner and driver for negligence, and claimed that they were a cause of Jackson's death, the insurer for the owner and driver filed a notice of third-party fault alleging that the sole cause of death was the negligence of unknown treaters at DMC.  When the parties to the suit attempted to depose the physicians involved in Jackson's care, DMC objected and refused to allow them to testify; it claimed that the at-faults owner and driver were attempting to execut e an "end around" the medical malpractice notice requirements. 

Ultimately, the trial court rejected the "notice of third-party fault" and also rejected the auto insurer's effort to take the doctors' depositions.  The insurer for the at-faults appealed both decisions.  The Court of Appeals ruled that the lower court was right in rejecting the "notice of third-party fault" but wrong in allowing the DMC attorneys to bar discovery depositions of the doctors.

Higher court overturns death settlement allocation where trial judge did not conduct hearing

The Court of Appeals held that an Oakland County judge committed reversible error when he enforced a Personal Representative's recommended death allocation among the Interested Persons over the objection of other family members.  The Judge was aware of the objections but refused to schedule a hearing or appoint a Guardian for the minor Interested Persons.  The Court of Appeals overturned the proposed allocation and ordered the Judge to comply with the provisions of the Wrongful Death Act.

Government agencies struggle with the task of placing a value on an individual life

Media outlets on  February 16 reported on developments in Washington, D.C., as federal agencies arm-wrestled over placing a value on human life.  The New York Times, for example, reported that federal agencies are allowed to assign different values for one life, and the "valuations" utilized by various agencies vary  widely.  The FDA, for example, places a value of $7.9 million dollars on a single life, while the EPA values a life at $9.1 million dollars.  The Transportation Department uses a value of approximately 6 million dollars. 

These estimates are calculated by different means in each agency.  Some rely upon consumer surveys estimated how much individuals would pay to avoid a particular risk.  Other valuations rely on computations of incremental pay that must be offered to induce workers into more risky occupations.  Still others simply add up the total wages lost when a worker dies:  obviously this calculation--unlike most Americans--- places no value on a worker's life outside the trenches.

Corporations and the government use these valuations to determine--by cost-benefit analysis--whether, for example, a road should be made safer, new labeling should be required on prescriptions, and whether there should be tighter restrictions on air pollution.  The involved agency and regulated corporations attempt to determine how many lives would be saved by the proposed change, and then multiple that number by the estimated value of a single life:  the "value" of the regulatory change is then compared to the cost of the modification, regulation or investigation, to determine whether it is justified.

Somehow, the whole business seems a little like trying to assess how many angels can dance on the head of a pin.  That is especially true in a walk of life where legislators and jurors routinely place a "value" on a life--or the "cost" of a wrongful death--at something well below the economists' numbers.   A few years ago, Michigan  "reformers" held that the "value" of a life lost in most malpractice and product liability cases is $285,000.00--plus lost income, if there is any.  

Michigan's legislators, in another example, have mandated a minimum auto liability coverage of only $20,000.00, and all of th no fault and tort "reforms" since 1974 have refused to increase that value with the cost of living.  [If you hadn't already realized it, tort "reforms" only reform for the benefit of the insurance industry--not for the benefit of insureds or consumers.]  Thus, as a practical matter, we often see cases where the "value" of a life wrongfully ended is as low as $20,000.00 or $50,000.00--even though more reasonable mandatory minimums could be legislated at a cost per insured driver of less that fifty dollars per year. 

Unfortunately, the "value of a life"  is never as great, in theoretical terms, as it is to the person who owns it; and the value is never as great in anticipation of loss (i.e. when  you go to the voting booth or when you write your check for an insurance premium) as it is when the loss is realized.  And insurers know how to exploit that discrepancy.

"Domestic partner" loses dispute over life insurance proceeds

When Thomas Blakeley died, he left a live-in fiancee, Sondra Billet, and three children.  He didn't designate a beneficiary on his Union Security Insurance Company life insurance policy, however, so his loved ones ended up paying lawyers to sort out who should receive the death benefit.  The policy provided that in the absence of a designated beneficiary, the policy should be paid to the spouse, then to the "domestic partner," then to the children, and finally to parents or an estate.  On the basis of this language, and by reference to a state statute defining a "domestic partner" as "one with whom another person maintains a household and an intimate relationship," the judge awarded the insurance  policy to Billet.

Death claim by family of man allegedly overdosed in substance abuse treatment program is dismissed: claim is one of malpractice even if employee was not a licensed professional

Gregg Dallaire allegedly died of an overdose of methadone administered by Treatment  Works, Inc.  Dallaire had become addicted to Vicodin after sustaining injuries in a motor vehicle accident and was attempting to treat the addiction through the Defendants when he died.  His wife was appointed Personal Representative of his Estate, and for whatever reason, she did not send out a Notice of Intent to Sue in time to leave 180 days before the medical malpractice statute of limitations ran.  Thus, to comply with her time limits on suit, she filed her Wrongful Death complaint without allowing the six month  "waiting period" to be exhausted.  She also alleged that since the overdose was administered by a non-licensed employee of  Treatment Works, she should not be subject to the procedural requirements of the malpractice statute (including a shorter limitations period). 

Family of inmate who loses 46 pounds waiting for trial has limited right to sue

The family of Vernard Jones sued Muskegon County, several jailors, the jail nurses and a doctor, after Jones died while incarcerated from September of 2004 until May of 2005, waiting for a trial.  Over this period Jones lost 46 pounds before he was seen by a nurse, and seven more pounds in the next 9 days, before he received definitive treatment.  Five former inmates filed affidavits alleging that the County Jail did not respond to Jones' multiple complaints of medical needs ("kites" in the vernacular); and they also identified multiple similar claims (including failure to respond to a seizure; failure, for weeks, to diagnose a broken leg; and failure, for weeks, to respond to a kidney stone.  Ultimately, Jones was taken to Hackley Hospital where he was described as "emaciated," "cachectic," and "clinically dehydrated."  When surgery was performed four days later, abdominal cancer was diagnosed.  He died in jail the following month. His family filed suit alleging gross negligence by several actors, "deliberate indifference to Jones' medical needs" under 42 USC 1983, and a "custom or policy" of the jail to deny inmates needed medical attention.

Doctor who refuses to perform procedure can be responsible for death of fetus that is not yet viable

Candice Johnson and "Baby Johnson" filed a wrongful death claim against Rajan Pastoriza, Candice's obstetrician, after Pastoriza refused to perform a cerclage on Johnson's incompetent cervix.  Johnson had previously delivered healthy babies after her previous obstetrician performed cerclage procedures at about 16 weeks gestation.  When Dr. Pastoriza took over her care, she displayed the same symptoms, which the doctor charted, but he refused to perform a cerclage in response to "cramping and pre-term labor."  The baby miscarried at 20 weeks. 

Court holds flagpole in enclosed school courtyard is part of the building

Angela Smith-Johnson sued the Ferndale Public Schools after her daughter, Angel, was killed when a courtyard flagpole broke, fell on Angel and killed her.  The School system argued that it was immune from negligence claims arising out of the collapse of the 86 year-old flagpole.  The child's family claimed that the flagpole was part of a public building and therefore within the exception to governmental immunity that applies to the negligent maintenance of public buildings.

Court addresses claim of undue influence in life insurance benefits

The Court of Appeals sent United of Omaha Life Insurance v. Nees back to the trial court after examining the facts of the case on appeal.  Willis Tomlin bought life insurance back in 1993 and designated his mother his sole beneficiary.  In 1996, Willis began dating Jerri Nees, moved in with her, and they had a child together.  In 2006, he was hospitalized with chronic liver disease and vested Nees with his power of attorney.

Supreme Court dismisses product liability claim

This week the Michigan Supreme Court overturned the Court of Appeals and dismissed a wrongful death claim against the manufacturer of a muffler repair kit.  The kit required the user to operate the vehicle for a set period of time after installation to allow the patch to bind to the muffler, but did not warn against idling the car in an enclose space.  The Supreme Court held that the manufacturer was not required to include such a warning in its product, particularly where such a safety practice is well known among vehicle mechanics.

Another multiple fatality resulting from unsafe 15-person vans

Back in 2002, Joan Claybrook, former adminstrator of the National Highway Traffic and Safety Administration, wrote a stinging rebuke of American auto manufacturers for the continued sale of 15-person vans.  As designed, she claimed, the vans are inherently top-heavy, vulnerable to roll-overs, and unsafe.  Despite this criticism, the vans continue to be manufacturered without significant design improvements and manufacturers continue to evade blame by criticizing maintenance, driver inexperience and outside influences.

Between 1997 and 2006, 1090 people were killed in 15-person van crashes.  688 of those fatalities occurred in roll-overs.   Henry Jasny, general counsel to Advocates for Highway and Auto Safety, explained in a recent AP release that "any obstruction that causes a wheel to rise off the road [surface] puts the van at risk" for rollover, including a simple flat tire.  Sadly, these obstructions are predictable and foreseeable, as is operation by non-expert drivers who don't have CDLs.  Inadequate tire pressure and maintenance issues will also arise on a predictable basis--particularly when these vehicles are owned and utilized by churches and other non-profit entities.

Last week a church van blew a tire and rolled on the New York State Thruway, killing six more people.  Despite the head of NHTSA calling the manufacture of these vans "a criminal act," the manufacturers continue to sell them without modification.  Experts recommend that they be re-designed with dual rear tires as that would afford reasonable stability on the road.

Court holds mother cannot sue 3 year-old daughter's father for wrongful drowning death

Nicole Mickel sued her ex-husband, Daniel Wilson, after their youngest daughter died while in Wilson's custody.  Wilson had taken the couple's three daughters to a relative's graduation party on an inland lake.  The girls went swimming and Wilson did not supervise them.  While he was in the home, briefly, the 3 and 1/2 year old, Jordyn, drowned.  Mickel sued him for wrongful death, claiming negligent supervision.

Families of fire victims cannot sue oxygen supplier who continued deliveries to "careless smoker"

The agents of Senior Home Health Care, Inc.  apparently observed that one Mr. Renwick was carelessly smoking in close proximity to the oxygen they were delivering to him.  They apparently made record of this fact, but continued deliveries of oxygen for 17 months, until Renwick caused a fatal apartment fire in which the plaintiff families suffered injuries and fatalities.  The families then filed suit against Senior Home Health, arguing that it was negligent to continue providing oxygen to Renwick after determining that he would not stop carelessly smoking near the oxygen.

Court analyzes conflict of interest between family members in wrongful death claim

Richard Chenault died when his airplane crashed in Lake Michigan.  His wife was appointed the Personal Representative of his Estate and she hired attorneys well-known for aviation expertise to pursue a wrongful death claim.  Meanwhile, his ex-wife who is the mother of his daughter, Kayla, was appointed Conservator of the daughter's estate. In Michigan, all claims by any family member must be pursued by the Personal Representative of the Decedent's Estate within a single wrongful death action.   As Conservator, Richard's ex-wife argued that a conflict of interest would prevent the current wife's attorneys from adequately representing her daughter.  The Probate Court disagreed and upheld the appointment of the P.R.'s choice of attorneys.  In response, the ex-wife filed her own lawsuit in Texas against the alleged at-fault parties [presumably the manufacturer or re-manufacturer of the aircraft]. 

Sixth Circuit hold that 911 "hang up" justifies police entry into home

In a tragic case arising out of mental illness, Xavier Johnson was killed after police entered his home in response to a 911 "hang up" call.  Johnson was bipolar and had stopped taking his medication.  His wife had called 911 in the middle of the night, but hung up when she saw an opportunity to leave the house.  She called dispatchers back later to explain, but they did not reach the responding officers before the police entered the home through an open door.  Once in the home, a brief altercation occurred in the dark between Johnson and the officers and Johnson was fatally shot.

The Court held that the officers were within their rights in entering the home in response to the 911 call, and that their entry was not a violation of the 4th Amendment's prohibition on unreasonable searches.  As a result, there was no 1983 violation of civil rights and the City owed no compensation to Johnson's family for his death.

The case is Monica Johnson v. City of Memphis.

Appellate court reinstates malpractice case against gastroenterologist

The family of Vilma Bandy filed a lawsuit against Oakwood Hospital and Ben Scheinfeld, M.D., arguing that Scheinfeld breached the standard of care in responding to Bandy's two visits to the Oakwood Hospital complaining of rectal bleeding.   Bandy was seen in the Oakwood E.R. twice during September, 2005, and Scheinfeld was consulted on each occasion.  She bled so severely that the suffered hypovolemic shock during the second hospital admission, suffered a stroke and became ventilator dependent.  She died several weeks later.  Her family complained that there were specific tests and actions that Scheinfeld should have undertaken given Bandy's symptoms, and that the failure to follow through on these actions resulted in Bandy's death.

Court of Appeals majority endorses so-called "apex deposition" rule in Toyota litigation

Judge Henry Saad wrote for two judges of a Court of Appeals panel, determining that Michigan should adopt the "apex deposition" rule.  This rule, normally applied only to governmental witnesses, protects the highest-ranking executives of an entity from discovery subpoenas in the absence of a show of personal knowledge regarding the issues being litigated.  The Estate of Guadalupe Alberto had attempted to depose two high-ranking Toyota executives in a sudden-acceleration, wrongful death lawsuit.  The two executives, Yoshimi Inaba  and Jim Lentz, had testified before Congress and made numerous public appearances for the company on the issue of sudden-acceleration, and the family's attorney argued that with their comprehensive knowledge of the problem, they were an appropriate place to begin discovery.

Young man who fell from pick-up bed and died cannot sue driver

In a typically hard-hearted Henry Saad opinion favorable to insurance interests, the Court of Appeals this week ruled that Scott Rubio's Estate cannot sue Louis Motowski (and thus his insurer) for wrongful death.  Rubio, Motowski and a third kid planned to drive by a home and throw rocks at it.  All three were apparently very intoxicated.  In the process, Rubio apparently fell out of the pick-up bed while attempting to move to the cab, and suffered a fatal head injury.  Rubio's family claimed that Motowski, as the driver of the truck, was at least fifty percent responsible for the death and owed that share of damages. 

Supreme Court reprimands Detroit judge who insists on representative racial composition for jury

This week, five Justices of Michigan's Supreme Court overturned a wrongful death verdict arising out of a shuttle bus fatality at Detroit Metropolitan Airport.  The Justices rejected Wayne County Circuit Judge Michael Callahan's decision to refuse to discharge a black juror who was challenged by the the Defendant Ampco System Parking.  Judge Callahan, who is white, essentially challenged the Supreme Court to overturn him by refusing to allow Ampco its "peremptory" right to dismiss three jurors without cause, stating that he would seat a jury that reflected the racial composition of the community unless reversed by a higher court. 

Court addresses liability of governmental agents who are serving in a dual role

Patrick Ryan was a special-needs young man who drowned in the Lamphere Public Schools pool during a Special Olympics training event.  When he drowned, there were two school employees and one volunteer lifeguard on duty, and they claimed that he was supervised for all but 30 seconds.  The School offered a physician's suggestion that Patrick could have drowned within 30 seconds if he had seized and was unconscious.  The family hired a water safety expert who replied that this was bunk:  for Patrick to drown and suffer permanent, unrecoverable brain damage, had to require several minutes of inattention by the supervising staff.

Jail suicide case dismissal is affirmed in Court of Appeals

The family of Brent Bolton sued the Center for Forensic Psychiatry, Bolton's assigned psychiatrist and social worker, alleging that they were legally responsible for Bolton's suicide.  Bolton was a troubled individual with a fairly long history of emotional instability.  In 2001 he was found "guilty by insanity" of fleeing and eluding police officers and incarcerated at the Center.  Over the next two years, he was repeatedly assessed for suicidal intentions and periodically placed on various levels of alert and restriction.   In July of 2003, he was interviewed by police with regard to a confession of child sexual abuse, and the defendants again analyzed his suicide risk.  They ultimately maintained the least restrictive suicide measures in place, believing them to be adequate given Bolton's presentation.

Insurer cannot force victim's family to compensate other victims

Kimberly Stout's husband was killed when a Great Lakes Petroleum tanker truck rear-ended his car, causing a multiple-car crash.  Clifford Stout's Estate resolved its wrongful death claims against the company, its driver, and its insurer, Empire Fire & Marine, by accepting payment of $600,000.00 from the company's insurer.  The Estate then executed a release and indemnity agreement containing terms dictated by the insurer.  The terms included a promise to "indemnify" the Defendants in the event "any further claims were brought against them as a result of the event which occurred...which acts formed the  basis of the Estate's claim."  It is not unusual for an injury victim or estate to promise to pay any expenses incurred if it files another lawsuit after executing a release, however, the defendants in this case sought to use this somewhat ambiguous language to require the Stout Estate to pay compensation to all of the other victims of the multiple vehicle crash.