Articles Posted in Medical Malpractice

shutterstock_1799961445-300x200The Michigan Supreme Court recently issued an opinion stemming from a plaintiff’s medical malpractice case involving the misdiagnosis of a cancerous tumor. The plaintiff and her husband filed a lawsuit against a medical center and a physician, alleging that they erroneously advised the plaintiff that a tumor in her breast was benign. After the diagnosis, the woman continued to feel the lump in her breast growing and eventually sought follow-up care. Approximately two years after her original mammogram, the woman underwent a biopsy, which revealed an invasive carcinoma and metastatic breast cancer. Unfortunately, doctors discovered that cancer spread to her lymph nodes. The woman sought a second opinion, at which point the doctor suggested that her original mammogram may have been misread. In response, the woman and her husband filed a notice to sue, which tolled the statute of limitations for filing the case. In response, the defendants moved to dismiss the claim, arguing that the statute of limitations barred the claim.

Under Michigan’s statute of limitations (SOL), MCR 2.116(C)(7), personal injury plaintiffs, have two years to file a claim. In this case, the defendants argued that the two-year SOL had expired in 2015. Further, they claimed that the plaintiffs’ complaint was untimely under the state’s “discovery rule.” Michigan’s discovery rule statute MCL 600.5838a(2) mandates that medical malpractice plaintiffs file a lawsuit within six months after discovering the claim or from when they should have discovered the claim.

The Michigan Supreme Court was tasked with determining whether the plaintiff should have discovered the existence of her claim over the six months before when she initiated proceedings. In reviewing the claim, the Court explained that the woman discovered her mass in 2013 and sought treatment immediately. Despite the doctor’s conclusion that it was benign, she continued to monitor the mass and sought additional testing in 2014 and 2015. Further, she did not receive notice of a potential 2013 misdiagnosis until 2016. The facts indicate that a jury could conclude that the plaintiff engaged in due diligence. As such, the appeals court erred in concluding that the matter could be resolved in favor of the defendants at the summary judgment state. As such, the Court reversed and remanded the matter.

FDA-300x221On May 23, 2017, Dr. Amy J. Reed, an anesthesiologist and mother of six children, passed away in her home at the age of 44. Her life was cut short by an aggressive form of uterine cancer, leiomyosarcoma. For her husband, the tragedy of her early death is entwined with regret and anger, as the two of them fought not only Stage IV leiomyosarcoma, but an intractable profession and the industry which profits from its practice.

At the age of 40, Dr. Reed was diagnosed with uterine fibroids. Fibroids are masses of the smooth muscle cells lining the inside of the uterus. Although fibroids are generally considered benign, their presence can cause serious discomfort and pain in the pelvic area. To treat her condition, Dr. Reed underwent a hysterectomy. She chose to have the procedure performed at Brigham and Women’s Hospital in Boston—the hospital is affiliated with the Harvard Medical School, where both Dr. Reed and her husband, Dr. Hooman Noorchashm both held teaching positions.

After her surgery, the tissue was removed, and a biopsy was performed. The tissue contained leiomyosarcoma cells, an extremely aggressive form of uterine cancer. Although the biopsy revealed that the cancer cells had been confined to a very small area within a fibroid, the procedure through which the fibroids were removed seeded malignant cells throughout her abdomen. The dissemination of cancer cells caused her cancer to accelerate to Stage IV. The five-year survival rate for patients diagnosed with Stage IV leiomyosarcoma is only 14%.

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The allegations laid out in a plaintiff’s complaint are the basis for the claim. Thus, the manner in which a case is pled can have an enormous impact on how it proceeds through the court system. Earlier this year, the Michigan Supreme Court issued an opinion requiring the court to determine whether the allegations in the plaintiff’s complaint were medical malpractice claims or ordinary negligence claims. If you have questions of this nature, be sure to reach out to a Michigan medical malpractice attorney.

The Facts of the Case

The plaintiff filed a lawsuit against a hospital after she was injured while being treated at the hospital. Evidently, the plaintiff was admitted to the hospital after she had an aneurysm, causing her to suffer a stroke and cardiac arrest. The plaintiff claimed that while she was being treated at the hospital, an aide helped move her to the bathroom and dropped her twice in the process. She claimed that she suffered a torn rotator cuff as a result, requiring her to undergo multiple surgeries, as well as bleeding in her brain.

In her complaint, the plaintiff argued that the hospital was negligent in several ways, including in failing to provide an adequate number of nurses to assist the plaintiff, failing to properly train the nurse, and failing to ensure the plaintiff’s safety. The plaintiff filed the claims against the hospital within three years of her admission at the hospital.

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On December 19, 2012, a doctor performed a Roux-en-Y gastric bypass and hernia repair on a patient. The doctor performed the gastric bypass procedure laparoscopically, but he found it necessary to open the abdomen to complete the hernia repair. During his recovery, the plaintiff vomited numerous times, including his intestinal contents. The doctor determined that the plaintiff needed a second surgery to repair an acute small bowel obstruction, which he believed was related to the hernia repair. On December 21, 2012, he operated on the plaintiff for the small bowel obstruction. The doctor and the anesthesiologist discussed whether to use a nasogastric (NG) tube, but the doctor decided against it because of the risk of perforating the fresh anastomosis from the gastric bypass procedure. The plaintiff subsequently aspirated, causing aspiration pneumonitis that in turn caused adult respiratory distress syndrome (ARDS), a stage IV bed sore, and neuropathy in the plaintiff’s legs.The plaintiff filed a Michigan medical malpractice action against the defendants, alleging that the standard of care was breached by the failure to place an NG tube before the second surgery, although one was placed after the plaintiff aspirated. Both parties retained expert witnesses who disputed whether the doctor should have inserted an NG tube to avoid aspiration before the plaintiff’s second surgery.

Following discovery, the plaintiff filed a motion to strike the testimony of the defendants’ two expert witnesses. He argued that the experts’ opinions that an NG tube should not have been placed before the second surgery were based solely on their own personal opinions and experience. Therefore, he argued the defendants’ experts’ opinions were scientifically unreliable and should be precluded under MCL 600.2955 and MRE 702. Furthermore, the plaintiff argued that one of them incorrectly defined “standard of care” as “[w]hat a prudent individual of similar experience and expertise would do,” and he incorrectly applied a local, rather than a national, standard of care.

Following oral arguments, the trial court denied the motion as to the scientific reliability of the defendants’ experts’ opinions, holding that a decision would be made at trial about whether an expert opinion is based on a sufficient foundation. However, the trial court granted the motion with respect to the testimony of the one witness for articulating the wrong standard of care, i.e., one of prudence, a standard of care not applicable in Michigan. Thus, his expert opinion was unreliable, and he was stricken as an expert witness.

The Michigan Court of Appeals recently affirmed the lower court’s entry of a $151,093.23 judgment for a plaintiff, based on the jury’s ruling in a medical malpractice action.In August 2011, a dentist extracted one of the plaintiff’s wisdom teeth. From the time of the extraction, the plaintiff experienced numbness on the left side of her tongue. When she returned to the defendant’s office, he treated her for a dry socket and advised her that her lingual nerve may have been injured during the procedure, but it would gradually recover. When the numbness continued, the plaintiff saw various other specialists, who also advised her that she most likely had a lingual nerve injury that would recover.

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The Michigan Court of Appeals recently affirmed the jury’s verdict that a defendant doctor was not professionally negligent in a medical malpractice action.Plaintiffs Irwin H. Estrine, D.O., and his wife, Seema Estrine, alleged that defendant Dr. Singer committed malpractice related to Irwin’s spinal surgery. Dr. Singer performed a tubular dilation microdiscectomy on Irwin in April 2010. Immediately following the surgery, Irwin began experiencing intense pain. He alleged that his complaints of pain continued for several days and that Dr. Singer ultimately ordered an MRI late on the third day.

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The Michigan Court of Appeals recently reversed a lower court’s grant of summary judgment to defendants, holding the lower court erroneously found the plaintiffs’ medical malpractice claim to be time-barred.In March 2007, plaintiff Richard Krueger visited his primary care doctor, Mr. Giovannucci, after experiencing abdominal pain and diarrhea. Krueger was referred to Dr. Meisner, a gastroenterologist. Tests showed that Krueger had an abdominal aneurysm. In a March 2007 letter, Dr. Meisner advised Dr. Giovannucci of the results of his evaluation, including his discovery of the abdominal aortic aneurysm. At an April 2007 office visit, Dr. Giovannucci discussed the abdominal aortic aneurysm with Krueger. Krueger continued to see Dr. Giovannucci annually for the next seven years, and neither Dr. Giovannucci nor his physician’s assistant ordered any diagnostic testing to check on the status of Krueger’s abdominal aortic aneurysm. Krueger’s aneurysm burst in April 2014.

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The Michigan Court of Appeals recently upheld a prior decision concluding that the lower court improperly granted summary judgment to a defendant in a medical malpractice case, despite the Michigan Supreme Court’s reversal of a case on which the appeals court initially relied. The court reasoned that the reversed case presented a factually distinct situation from the case at hand.Plaintiffs Alexander Figurski (minor) and Howard Linden (conservator) sued a hospital, a medical group, and doctors, alleging that Figurski suffered a hypoxic-ischemic brain injury and a left middle cerebral arterial ischemic stroke during labor and delivery. The trial court granted the defendants’ motion in limine to exclude the plaintiff’s causation expert concerning claims of malpractice. The trial court therefore granted partial summary disposition as to those claims. The appeals court reversed the trial court’s order and concluded that the trial court exceeded its role as gatekeeper and acted instead as the ultimate trier of fact. It further held that there was sufficient reliable scientific data to support the plaintiff’s expert’s opinion, and summary judgement was therefore improperly granted.

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The Michigan Court of Appeals recently affirmed a lower court’s dismissal of a medical malpractice complaint with prejudice due to the expert’s lack of experience.The plaintiffs alleged that Dr. Kenneth Markiewicz, a board-certified specialist in otorhinolaryngology, was negligent while performing a procedure known as a canaloplasty on plaintiff Robert Walworth’s ear canal to remove bony growths. The canaloplasty required Dr. Markiewicz to use a rotating “Skeeter” drill to remove the bony growths. Following the October procedure, the plaintiff discovered that he had lost virtually all hearing in his right ear. The plaintiffs’ theory of the case was that Dr. Markiewicz allowed the Skeeter drill to contact Walworth’s eardrum, injuring it and resulting in hearing loss.

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