How To Find Out If You Can Get A Court Order To Stop A Doctor From Treating You

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1 MEDICAL MALPRACTICE CASE LAW UPDATE January 6, 2010 July 31, 2010 Edited by: A. Joseph Engel, III, Attorney; Stephanie C. Hoffer, Attorney; Charissa C. Huang, Law Clerk In this Update Michigan Supreme Court Page 2-3 Dawe v Reuven Bar-Lavav & Assocs., PC, March 30, Page 2 DeCosta v Gossage, May 25, 2010 Page 2 Holman v Rasak, July 13, Page 2 Edry v Adelman, July 22, Page 3 O Neal v St. John Hospital & Medical Center, July 31, Page 3 Michigan Court of Appeals Page 3-8 Welch v Khoury, January 28, Page 3 Green v Pierson, February 9, Page 4 Driver v Cardiovascular Clinical Assoc., P.C., March 2, Page 4 Haley v Tschirhart, March 9, Page 4 Compton v Pass, March 29, Page 4-5 Decker v Stoiko, March 30, 2010 Page 5 Meredith v Oakwood Healthcare, Inc., April 8, 2010 Page 5 King v McPherson Hospital, April 27, Page 5 Davis v David, May 18, Page 5-6 Jones v Detroit Med. Ctr., May 24, Page 6 Hoffman v Barrett, June 3, Page 6 Cistrunk v Oakwood Heritage Hospital, June 15, Page 6-7 Swanson v Port Huron Hospital, June 24, Page 7 Yursco v Ravidran, June 24, Page 7 Salomonson v Nichols, July 1, Page 7 In re Estate of Bandy, July 15, Page 8 Randolph v Henry Ford Hosp., July 22, 2010 Page 8 Jilek v Maple Urgent Care, July 29, Page 8-1 -

2 Michigan Supreme Court Statutory Duty to Warn and Protect Dawe v Reuven Bar-Lavav & Assocs., PC, March 30, 2010 This case arose when the defendant s former psychiatric patient, who was a former participant in group therapy sessions attended by the plaintiff, entered the defendant s office during group therapy. He shot and killed two people, and wounded others, including plaintiff. The plaintiff sued, alleging that the defendants were liable under MCL for failure to warn her of or protect her from a threat. Plaintiff also alleged defendants committed common-law medical malpractice in breaching their duty to her as a patient by negligently placing the shooter, a former psychiatric patient, in her group therapy session when they knew or should have known he was not a suitable candidate for group therapy. The jury returned a verdict in favor of the plaintiff. On appeal, the Court of Appeals majority reversed and concluded that MCL placed specific limitations on a mental health professional s duty to warn or protect third persons and, therefore, abrogated all common-law claims for failure to warn or protect. The Michigan Supreme Court granted leave to appeal and reversed the decision. The Supreme Court held that MCL did not abrogate a plaintiff-patient s common-law medical malpractice claim when the mental health professional s separate duty arising out of his or her special relationship with the patient would apply and no threat as described in [MCL (1)] was communicated to the mental health professional. Notice of Intent Effective Date, Deficiencies DeCosta v. Gossage, May 25, 2010 The defendant performed cataract surgery on the plaintiff s eye. The plaintiff had problems with her eye immediately after the surgery due to a staph infection. The plaintiff mailed copies of her Notice of Intent (NOI) to the defendant at his prior office address two days before the two-year limitations expired. An individual at the defendant s old office address accepted and signed for copies of the NOI and promptly forwarded them to the defendant. The defendant acknowledged receipt of the forwarded NOI three days after the limitations period expired. The Court, relying on MCL b(2) held that the limitations period was tolled as of the date the plaintiff mailed the NOI. The Court rejected the defendant s argument that the NOI was defective and did not toll the limitations period because it was not mailed to his last known business address. The Court held that even if the NOI was not mailed to the proper address, it was promptly received by the defendant so any defect should be disregarded. Ex Parte Communications with Treating Physicians Holman v Rasak, July 13, 2010 The defendant s attorney sought to meet and speak with the plaintiff s treating physicians without the plaintiff s attorney present. The plaintiff objected to such meetings, arguing that they were not permitted under HIPAA. In a long-awaited and much anticipated decision, the Court held that Michigan law permitted defense counsel to engage in ex parte communications with a plaintiffs treating physicians and that HIPAA did not preempt Michigan substantive law. Rather, HIPAA imposed a procedural requirement requiring a court to enter a qualified protective order before such meetings could occur. The Court also affirmed that trial courts could deny motions for a qualified protective order or impose conditions on the meetings

3 Reduced Chance of Survival, Expert Witness Qualifications Edry v Adelman, July 22, 2010 In this case, the plaintiff asserted that the defendant s failure to test for and diagnose cancer led to a two year delay in diagnosis. The plaintiff alleged that this delay reduced her chance to survive for five years from 60 percent to 20 percent. The plaintiff also alleged that the delay caused her treatment to be more invasive than it otherwise would have been. The Court held that the plaintiff s expert witness was not qualified to testify because his medical testimony was not based on reliable principles or methods. The Court reasoned that there was no peer-reviewed published literature or any other evidence supporting the expert s opinion. The Court also held that summary disposition was appropriate because there is no cognizable claim for a reduced chance of survival when there is no present injury. The Court also noted that without the expert testimony, the plaintiff could not prove that the delay in diagnosis resulted in the need for more invasive medical treatment. Loss of Opportunity O Neal v St. John Hospital & Medical Center, July 31, 2010 The plaintiff, who suffered from sickle cell anemia, developed acute chest syndrome (ACS). The ACS was misdiagnosed as pneumonia. The plaintiff suffered a stroke that he alleged would have been prevented by the proper diagnosis and treatment. The Court determined that this was a traditional medical malpractice claim and not a loss of opportunity claim simply because it was pled as traditional malpractice and not as a loss of opportunity. Therefore, the plaintiff did not need to show that there was a greater than 50 percentage point difference between the opportunity for a better result before and after the alleged negligence. The Court further indicated in dicta that Fulton v William Beaumont Hospital was overruled to the extent it would have caused this case to be characterized as a loss of opportunity case. Although the Court held that Fulton was inapplicable, the Court proceeded to reject Fulton s mathematical formula for determining whether the plaintiff proved that it was more probable than not that the defendant s actions caused the injury. Rather, the Court held that causation should be determined on a case by case basis using whatever calculation or method of analysis seemed appropriate. Michigan Court of Appeals Expert Testimony and Qualifications Standard of Care Welch v Khoury, January 28, 2010 The plaintiff alleged that the defendant, an orthopedic surgeon, was negligent in performing a hipreplacement surgery by failing to properly read a postoperative x-ray. The plaintiff alleged that the negligence led to a fracture of her femur. A jury found for the plaintiff. The trial court excluded testimony of two of the defendant-orthopedic surgeon s proposed fact and causation experts (radiologists) on the grounds that they were not orthopedic surgeons, and they would confuse the jury. Upon review, the Court of Appeals affirmed, reasoning that the relevant standard of care was one of an orthopedic surgeon, and not a radiologist. Further, the court found that even if the trial court had erred in excluding the testimony, any error was harmless because defendant presented his own testimony and the testimony of two other orthopedic surgeons, which supported his conduct during and after surgery

4 Green v Pierson, February 9, 2010 In this medical malpractice / wrongful death case, the Court of Appeals held that a defendant does not waive a statute of limitations defense by failing to raise the argument in a previously filed motion for summary disposition as long as the defense was asserted as an affirmative defense in the answer. The Court further held that the trial court did not err in dismissing the plaintiff s case on grounds not specifically raised by the defendant. Finally, the court held that the NOI was deficient and that Bush v Shabahang did not apply to cases filed before the effective date of the amendatory act that the Supreme Court relied on in deciding Bush. Statute of Limitations Premature Filing Driver v Cardiovascular Clinical Assoc., P.C., March 2, 2010 The plaintiff was treated by the defendant doctor before he was diagnosed as having colon cancer in November The plaintiff claimed that the defendant Dr. Naini failed to refer him for a colonoscopic examination. Much later, the plaintiffs served an amended NOI which named Cardiovascular Clinical Association (CCA). Approximately 49 days later, before the notice period expired, plaintiffs filed their first amended complaint naming CCA. In a motion for summary disposition, the defendants argued that the plaintiffs prematurely filed suit before the expiration of the NOI period. The trial court denied the motion, finding that the NOI to CCA within the limitations period tolled the statute, and that under the nonparty fault statute, MCL (2), the amended complaint was timely. Upon review, the Court of Appeals reversed and remanded for entry of summary disposition in CCA s favor, reasoning that because plaintiffs did not properly commence their action against CCA in compliance with the NOI statute MCL b(1), their claim was time barred by the statute of limitations. The court found that because the nonparty fault statute and NOI statute were in pari materia, and were in conflict, they would apply the one most specific to the claim in this case. The NOI statute applied only to medical malpractice actions while the non-party fault statute applies to a broader category of cases. The NOI statute applied in this case and the plaintiffs claim was time barred. Discovery Haley v Tschirhart, March 9, 2010 The plaintiff filed a medical malpractice action, but the defendant-doctor failed to file an answer. Consequently, default was entered against the doctor. The trial court set aside default after learning that the defendant was suffering from a serious illness at the time the answer was due. The plaintiff sought information about this illness in interrogatories. The plaintiff also asked whether the doctor had suffered from any substance abuse in the past ten years. The Court of Appeals held that the trial court was correct in requiring the defendant to answer the interrogatories. The Court held that the information was not protected by HIPAA because it was the doctor s own health information. It also was not protected by the physician-patient privilege because the information was not acquired in attending a patient. Finally, the Court held that the request regarding substance abuse history was relevant because if the doctor was abusing substances at the time he treated the plaintiff, it would support a breach of the standard of care. Standard of Care, Causation, Evidence Compton v Pass, March 29, 2010 Following an axillary lymph node dissection treatment of breast cancer, the plaintiff alleged that the defendants surgically removed at least 18 of her right axillary lymph nodes as part of a clinical trial without obtaining her informed consent. She contended that had she been properly informed - 4 -

5 she would have chosen not to participate in the trial. She claimed she suffered permanent injury. The trial court granted a directed verdict in the defendants favor, ruling that the plaintiff s expert only testified about what he would have done personally. The Court of Appeals reversed. The Court held that the appropriate standard of care for a general surgeon is a national standard because general surgery is a specialty. The Court also determined that while the trial court was correct in holding that the expert cannot testify as to what he personally would have done, the trial court had instructed the witness as to the same and the witness indicated that his testimony was accurate for the standard of care. The Court also held that a plaintiff makes a prima facie showing of causation when an expert testified that in his opinion, the plaintiff would not have suffered the injuries alleged if the alleged negligence had not been committed. Finally, the Court held that the trial court properly admitted an audiotape into evidence despite the tape having technical problems and portions of it being inaudible, reasoning that it was complete enough to be admissible and that the jury could weight the value of the tape in light of the inaudible portions. Notice of Intent - Sufficiency Decker v Stoiko, March 30, 2010 In this case, the Court of Appeals held that a complaint does not raise new allegations of malpractice where the NOI places the defendant on notice of the claim and the complaint does not allege a new theory of causation. The Court further held that a second NOI does not need to be filed where an amended complaint merely clarifies the claims and does not add new defendants or new potential causes of the injury. Vicarious Liability Ostensible Agency Meredith v Oakwood Healthcare, Inc., April 8, 2010 A physician, who had a contract with a hospital requiring the physician to provide such services as were requested by hospital, was not the ostensible agent of hospital at time of physician s alleged malpractice, and thus the hospital could not be held vicariously liable. In reversing the trial court s denial of the defendant s motion for summary disposition, the Court found that the patient had chosen the doctor on the basis of his primary care physician' recommendation and had no reason to believe the doctor was an employee or agent of the hospital. Statute of Limitations Wrongful Death Savings Period King v McPherson Hospital, April 27, 2010 In this case, the Court of Appeals declared a conflict with Farley, supra because it determined that Farley was wrongly decided but that the Court was bound to follow Farley and deny the plaintiff s appeal. The third scenario discussed in Farley was presented in this case: the Court of Appeals issued an opinion before Mullins II was decided ordering the trial court to dismiss the case, the plaintiff appealed to the Supreme Court and the Supreme Court denied leave, but the trial court failed to actually dismiss the case. This panel of the Court of Appeals would have decided that Mullins II applied to cases that had been dismissed prior to the Supreme Court deciding Mullins II as opposed to only being applicable to cases that were pending when Mullins II was decided. Expert Witness Qualifications Davis v David, May 18, 2010 In this dental malpractice case, the Court of Appeals held that the plaintiff s expert witness was not qualified to testify against the defendant-dentist because he was not an orthodontist. Although the defendant was not a licensed orthodontist, he was practicing orthodontics at the time of the alleged malpractice. Therefore, the plaintiff needed an orthodontist to establish the standard of care

6 Because the plaintiff was not able to offer expert testimony against the defendant, summary disposition in the defendant s favor was appropriate. Proximate Causation Jones v Detroit Med. Ctr., May 24, 2010 As a result of a rollover auto accident in September 1999, the plaintiff s decedent suffered contusions and lacerations. The defendant neurologist saw the decedent and concluded he had probable partial complex seizure disorder. The defendant prescribed Tegretol. Doctors later determined that decedent suffered from a rare allergic reaction to the drug and diagnosed him with Stevens-Johnson syndrome resulting from the reaction. The decedent died of the disease, complicated by pneumonia. The plaintiff alleged the neurologist was negligent for prescribing the drug. The defendant argued that the plaintiff could not prove proximate cause because the reaction was rare and therefore not foreseeable. On appeal, the court reviewed whether the trial court s granting of summary judgment in favor of the plaintiff on the issue of proximate cause was proper. The Court of Appeals affirmed the trial court s judgment, holding that since the evidence showed it was well-known and undisputed that the disease could occur from taking Tegretol, and that happened in this case, the trial court properly determined, as a matter of law, that the neurologist s allegedly negligent misdiagnosis was a proximate cause of the development of the disease. Wrongful Death Savings Period Hoffman v Barrett, June 3, 2010 The decedent fell from the roof of his home, and the defendant was assigned to care for him in the ER. After the decedent was discharged home, he developed problems. EMS was called, the decedent went into full arrest in the ambulance, and died on January 25, The plaintiff was appointed personal representative on July 27, 2001, provided the defendants with an NOI on March 3, 2003 and filed suit on October 16, On August 27, 2004, the trial court granted a prior summary disposition motion for defendants based on a retroactive application of Waltz v. Wyse, finding that the plaintiff s suit was filed after the wrongful death saving period expired. The plaintiff applied for leave to appeal to the Michigan Supreme Court, which held the application for leave to appeal in abeyance pending the outcome of the appeal in Mullins v St. Joseph Mercy Hosp. After Mullins was decided, the Supreme Court reversed the grant of summary disposition in this matter and remanded for further proceedings. The Court of Appeals held that Mullins II applied, and noted that the plaintiff s NOI filed on March 3, 2003, which the court found valid, tolled the running of the statute of limitations. Thus, the case was timely filed. The appeals court found the NOI to be sufficient, and held that since the case was filed after Omelenchuk v City of Warren and Waltz no longer applied based on Mullins II, the trial court s dismissal without prejudice was proper. Sufficiency of Evidence Cistrunk v Oakwood Heritage Hospital, June 15, 2010 One of the defendants, Dr. Kim, performed a cystoscopy on a patient whose CT scan showed a mass in the left kidney. Post-surgery problems arose and Dr. Kim told the patient to return to the ER where he was treated by defendant Dr. Coleman. However, he continued to experience incontinence. The patient filed suit alleging various medical negligence claims, including a claim that Dr. Kim had not properly informed him of the risks of the cystoscopy and resulting incontinence. A jury returned a no cause verdict. The plaintiff moved for a judgement notwithstanding verdict (JNOV), which was dismissed. This decision was appealed. The Michigan Court of Appeals held that based on the competing evidence, the fact that the standard of care was - 6 -

7 vigorously disputed, and the fact that the case was a battle of the experts, reasonable jurors could differ on the question of whether Dr. Kim breached the standard of care as to the plaintiffs informed consent theory and held that the trial court did not err in denying plaintiffs JNOV. Sufficiency of NOI, Res Ipsa Loquitur Swanson v Port Huron Hospital, June 24, 2010 The plaintiff alleged that the defendant s negligence during a laparoscopic procedure resulted in a puncture wound to her aorta and then a scar around her navel as a result of a subsequent laparotomy performed to repair the aorta. Although the plaintiff s NOI was defective, the trial court disregarded the defects in light of plaintiff s explanation of the factual basis of her claim and allegations of standards of care applicable to the defendants conduct. The trial court instructed the jury on the doctrine of res ipsa loquitur, and the jury returned a verdict in the plaintiff s favor. The defendants appealed to the Michigan Court of Appeals, and the majority reversed the judgment on the ground that the NOI was defective. Plaintiff sought leave to appeal to the Michigan Supreme Court, which vacated the order of the Court of Appeals and remanded for reconsideration in light of the court s decision in Bush v Shabahang, 484 Mich 156 (2009), and MCL On remand, the Court of Appeals held, looking at plaintiff s NOI and comparing it to the NOI defects in Bush, that her NOI was a good-faith attempt to comply with the contents requirements of MCL b, and dismissal of her claims was not warranted. However, the court reversed on the basis that the res ipsa loquitur instruction was erroneous since the plaintiff s injury could have occurred without any negligence on the part of the physician. Causation Speculation and Conjecture Yursco v Ravidran, June 24, 2010 The issue on appeal was whether the plaintiff presented adequate trial evidence showing that the defendants caused the decedent s injury. The defendants contended it was unlikely that the doctor could have successfully used a balloon procedure because he did not have the time or ability to do so. The defendants argued that it would have been unwise for the defendant to perform the procedure because if he did it incorrectly, the decedent would have died instantly. The trial court disagreed, finding that while the defendant physician did not have significant time to spare, he could have performed the procedure during the available four-minute window. The Michigan Court of Appeals affirmed the trial court s ruling that the plaintiff s evidence as to causation was not based on mere speculation and conjecture. The court based its holding upon evidence which demonstrated that the defendant had the time and ability to perform the procedure with 95% chance of preventing the decedent s death; that he chose not to perform the procedure and instead pursued an alternative and ultimately unsuccessful method of treatment; and that he could have easily obtained assistance of someone capable of performing the procedure that could have saved the patient s life. Loss of Opportunity Salomonson v Nichols, July 1, 2010 In this case, the Court determined that the plaintiff s claim was a traditional medical malpractice claim and not a loss of opportunity claim. The plaintiff s theory was that had the decedent been admitted to the hospital, he would not have suffered a stroke. The Court held that this was not a loss of opportunity case because the claimed injury was not the loss of an opportunity of a more favorable result, but the physical harm

8 Sufficiency of NOI Remedy for Defective NOI In re Estate of Bandy, July 15, 2020 The plaintiff served three physicians of different specialties and a hospital with an NOI. The NOI set forth breaches of the standard of care, but did not indicate which physicians committed which breaches and which breaches the hospital allegedly committed. The Court held that even assuming the NOI was deficient, the trial court should not have dismissed the case but should have disregarded the defects. Expert Testimony Factual Basis Requirement Randolph v Henry Ford Hosp., July 22, 2010 The plaintiff s decedent, an infant, suffered from recurrent constipation. The infant s primary care physician considered Hirschsprung s disease and scheduled a test for a week after the infant was seen in the office. That evening, his parents took him to the hospital, suspecting dehydration. He was seen by a physician at 8:48 and his vital signs were normal. He stopped breathing at 8:55 and was unable to be resuscitated. The medical examiner ruled out both Hirschsprung s disease and dehydration as the cause of death, which ultimately was listed as unknown. The plaintiff filed suit on the theory that the primary care physician should have admitted the infant to the hospital on the day of the office visit and if the infant had been hospitalized, he would have been hydrated and disimpacted and would have survived. The case proceeded to trial. The trial court denied the defendant s motion for a directed verdict or JNOV. The court of appeals reversed this decision. The Court held that none of the plaintiff s expert s three reasons to admit the infant to the hospital were supported by the record evidence. Therefore, there was no basis for the expert s opinion and the trial court should have granted a directed verdict or JNOV to the defendants. Policies and Procedures - Admissibility Jilek v Maple Urgent Care, July 29, 2010 The facts of the case center on the provision of medical care at an urgent care facility by a board certified family practice physician. The Court of Appeals was asked to review a trial verdict of no cause for action against the defendants, which included the physician, the urgent care facility, and the hospital group operating the facility. The plaintiff asked the Court of Appeals to decide whether the trial court erred when it ruled that the parties could present alternate evidence and argument to the jury regarding the proper standard of care and whether the trial court erred when it excluded from evidence the hospital internal policies and procedures and the external policies created by the American College of Emergency Physicians (ACEP). The Court of Appeals ruled that the trial court erred with regard to both of these issues and ordered that a new trial take place. Specifically, the court ruled that the applicable standard of care was the specialty engaged in by the defendant physician during the course of the alleged malpractice. In allowing the hospital guidelines into evidence at trial, the Court of Appeals established a new standard for determination of whether such guidelines are relevant: here [the policies] were adopted by the relevant medical staff and where there is a causal relationship between the violation of the rule and the injury the hospital policies can be admissible as evidence of the standard of care. In this fact-specific circumstance, the court also allowed the admission of external guidelines as evidence of the standard of care, where those guidelines were adopted or referenced in a hospital policy SMITH HAUGHEY RICE & ROEGGE This newsletter is provided for informational purposes and should not be acted upon without professional advice