Equitable Tolling of Medical Malpractice Claim Waiting Period on Supreme Court’s Mini-Oral Argument Calendar

The Michigan Supreme Court has ordered mini-oral argument to be held in two cases addressing a very significant issue dealing with whether trial courts can disregard the notice waiting period required before filing a complaint in a medical malpractice action, either by disregard of the defect or allowing amendment of the complaint under MCL 600.2301.

Here is the Court’s order, Furr v. McLeod Order, which the Court consolidated with another case addressing the same basic issue, Tyra v. Organ Procurement Agency of Michigan, et al., MOAA Order.

I previously wrote about these cases as they were making their way up through the Court of Appeals.  Those prior posts are below:

Equitable Amendment of Complaint Allowed in Med Mal Action

Court of Appeals Impanels Conflict Panel to Consider Whether Trial Courts Can Allow Defective Medical Malpractice Claims to Go Forward

Equitable Amendment of Complaint Allowed to Toll Statute of Limitations in Medical Malpractice Action Even Where Original Complaint Filed Prematurely Before Expiration of Mandatory Notice Period

The Court of Appeals has issued its conflict panel opinion in the case of Furr v. McLeod, M.D., et al.  

This is a case I previously wrote about in which the Court of Appeals convened a special conflict panel to determine whether the filing of an original complaint before the expiration of the mandatory notice period for medical malpractice actions can serve to toll the statute of limitations if the trial court allows a subsequent, untimely complaint to be filed adding parties.  In this case, the trial court allowed equitable amendment of the complaint despite the defect and thus allowed the action against the defendants to proceed despite the expiration of the two-year statute of limitations as against them.

The opinion is here:

Furr.v.McLeod.et.al.conflict.panel.coa.opinion

I previously wrote about the intricacies of this issue when discussing the original opinion.  That blog post is here:

Furr v. McLeod – Court of Appeals Requests Conflict Panel to Resolve Conflict Over Tolling of Statute of Limitations in Medical Malpractice Action

Given that the panel here is still split over the resolution of this issue, and actually acknowledges the Supreme Court is going to have to address it, I suspect there will be more to say on this case in the near future.

The underlying issue affects the timeliness of medical malpractice claims and the necessity of plaintiffs to strictly comply with the notice periods and filing deadlines of complaints.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

  • Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

Supreme Court Leaves Plaintiff’s Medical Malpractice Claim Intact to Recover Damages for Loss of Kidney in “Dual Organ” Case

The Supreme Court has let stand a Court of Appeals decision, which held that a doctor’s alleged misdiagnosis and ultimate removal of a cancerous kidney gave rise to a cause of action for damages because of the potential for greater future harm due to the additional risk associated with having only one functional organ.

Lawrence Garcia, Esq. and myself submitted an amicus curiae brief on behalf of the Michigan Defense Trial Counsel in this case before the Supreme Court in which we urged the Court to allow the Court of Appeals decision to stand.

Here is the brief:

huddleston.sc.amicus.curiae.br

Previous posts about this case can be accessed here:

Amicus Curiae Brief Filed in Supreme Court in Medical Malpractice Case Alleging Misdiagnosis and Damages for Removal of Plaintiff’s Kidney

Supreme Court Grants to Consider Damages in Medical Malpractice Claim Alleging Loss of Kidney Constitutes Actionable Damages

Please let me know if you have any questions regarding this order.

Feel free to call Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP at (248) 283-0763 if you have any questions about any of these cases.  Mr. Tucker regularly participates in cases before the Supreme Court and Court of Appeals on issues touching many subject-matter areas of civil litigation, including governmental immunity.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (2014), Court remands to Court of Appeals after oral argument on application granted, amicus curiae brief for Oakland, Macomb and Wayne Counties filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., ___ Mich ___ (2014), application denied after oral argument on application granted, amicus curiae brief filed by Carson J. Tucker and Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)
  • Sington v Chrysler Corp., (2002)

Other appeal cases Carson Tucker has handled include

  • Hamed v. Wayne County, et al., 490 Mich. 1 (2011), reversing Court of Appeals published opinion after being briefed and argued by Carson J. Tucker on behalf of Wayne County
  • Odom v. Wayne County, et al., 482 Mich. 459 (2008), reversing Court of Appeals after being briefed and argued by Carson J. Tucker on behalf of Wayne County and Wayne County Sheriff and Deputies
  • Michigan Department of Transportation v Employers Mutual Casualty Co, et al., 481Mich. 862 (2008), reversing Court of Appeals after being briefed and argued on application by Carson J. Tucker for Trucking Company and Insurer
  • Nuculovic v. Hill and SMART, 287 Mich. App. 58 (2010), briefed by Carson J. Tucker for SMART
  • Molnar v. Amy Allen, Oakland County Care House, et al, 359 Fed. Appx. 623 (6th Cir. 2009), affirming district court’s judgment in favor of client represented by Carson J. Tucker
  • Molnar v. Amy Allen, Oakland County Care House, et al., Case No. 09-1536 (2009), successful defense of application to United States Supreme Court by Carson J. Tucker
  • Wetherill v. McHugh, et al., Case No. 10-638 (2011), co-draft response on behalf of South Dakota National Guard to petition for appeal to United States Supreme Court, cert denied by Supreme Court.

Amicus Curiae Brief Submitted in Huddleston v. IHA of Ann Arbor, P.C., et al, Supreme Court No. 146041

We submitted an amicus curiae brief on behalf of the Michigan Defense Trial Counsel in this case before the Supreme Court to address the extent of damages potentially available in a medical malpractice action involving the loss of a “dual organ” by the plaintiff as a result of the alleged malpractice.  Here is the brief:

huddleston.sc.amicus.curiae.br

I had previously written about this case in a blog post here:

Supreme Court to Consider Causation and Speculative Injury Claims in Medical Malpractice Action

Court of Appeals Requests Conflict Panel to Resolve Issue of Whether Plaintiff’s Prematurely Filed Complaint Can Be Equitably Amended to Allow Notice Period to Toll Statute of Limitations in Medical Malpractice Action

Yesterday, the Michigan Court of Appeals issued an adversarial published opinion in the case of Furr v. McLeod, MD, et al, Court of Appeals Docket No. 310652.  The panel ruled as it did only because prior Court of Appeals precedent  required it to do so under Michigan Court Rule (MCR) 7.215(J).  However, the panel requested impaneling a conflict resolution panel by the Court of Appeals to address whether its own holding remains good law in light of Michigan Supreme Court precedent suggesting that a contrary result should now issue. MCR 7.215(J) obligates a Court of Appeals panel to follow precedent in opinions issued by it after November 1, 1990.  MCR 7.205(J)(3) allows the Chief Judge to poll the judges of the Court of Appeals to determine whether the particular question at issue is outcome determinative and warrants convening a special panel to rehear the case for the purposes of resolving the conflict that would have been created but for the provision of subrule (1) (the provision requiring the Court in the issuing opinion to follow prior decisional case law).

The case is a medical malpractice action filed against the various defendants arising out of an alleged act of malpractice in which the plaintiff alleged her “left recurrent laryngeal nerve” was errantly transected during a thyroidectomy procedure.  This required additional surgical intervention to repair the nerve and ultimately left the plaintiff with alleged upper respiratory problems and “bilateral true vocal cord paralysis”.  Michigan Compiled Laws (MCL) 600.2912(b)(1) requires for a plaintiff to pursue a medical malpractice action, he or she must provide a written “notice of intent” to file such an action against the defendants and then wait 154 days (if the defendants do not respond or specifically indicate they do not intend to settle (more about this in a moment), or, alternatively, 182 days.  Under MCL 600.5838(a)(1) (subject to a discovery exception not applicable in this case), a plaintiff’s medical malpractice claim “accrues” when the act of malpractice occurs.  After that date of accrual, the cause of action is then subjected to a two-year statute of limitations (suit must be filed within two years of the date of accrual or it will be time barred). MCL 600.5805(6).

Various courts have addressed the issue of whether the premature filing of a complaint after the notice of intent is served (either before either 154 days (if defendant did not respond or specifically indicates no intent to settle or engage in good-faith settlement negotiations) or 182 days) implicates the two-year limitations period.  Thus, if the complaint is filed within the notice period, but prematurely, then the 154- or 182-day “notice period” does not act to “toll” that limitations period. MCL 600.5856(d); MCL 600.2912b.  Therefore, the filing of a complaint within this window that is upon a date beyond the two-years from the date of accrual will be time barred.

Two Court of Appeals decision seem to indicate that MCL 600.2301 allows a trial court to amend the complaint to reflect the date postnotice period so that it does not act to time-bar the action.  That is essentially what the trial court did in this case.

In Burton v. Reed City Hospital Corp., 471 Mich. 745 (2005), the Michigan Supreme Court held if a plaintiff files his or her complaint before the notice period expires, MCL 600.2912b does not “toll” the limitations period.  The Court reasoned the language of that provision is mandatory and MCL 600.5856(d) only tolls the limitations period if the plaintiff’s notice complies with MCL 600.2912b.

In Zwiers v. Growney, 286 Mich. App. 38 (2009), the Court of Appeals held that MCL 600.2301 allowed a trial court to equitably amend the complaint to reflect a post-date of the waiting period so that the premature filing did not erase the tolling of the statute of limitations.

In a subsequent case, Driver v. Naini, 490 Mich. 239 (2011), the Supreme Court held a plaintiff could not amend an original notice of intent to add a nonparty defendant and have that amendment “relate back” to the original notice for purposes of the statute of limitations.  The Court disavowed that MCL 600.2301 would apply in a situation in which there was no technical viability to the claim – because if a complaint is filed prematurely within the notice period, but after the statute of limitations has expired, there is no “pending” action for MCL 600.2301 to remedy.

Subsequent to that case, in Tyra v. Organ Procurement Agency of Michigan, ___ Mich. App. ___ (2013) (COA Docket No. 298444), the Court of Appeals ignored this nuanced reading of MCL 600.2301 and held a trial court could use this provision to permit plaintiff to amend her complaint on the basis of Zwiers and MCL 600.2301.  So, the Court of Appeals ruled in Tyrasupra, that a trial court could exercise its discretion to allow amendment of a premature complaint to escape the failure of tolling where it was filed prematurely.

The defendants appealed, arguing that Supreme Court precedent has since refuted the theory that MCL 600.2301 allows a trial court to equitably “fix” the fatal filing defect by allowing amendment of the complaint so it is filed on the proper day.  This is what the trial court did in the instant case and defendants appealed.  While noting Tyra precedentially controlled its holding, the Court of Appeals panel in this case goes on to criticize that decision and provides reasoning why it should be overruled.  The Court states:

“Subsequently, and to the contrary, the Michigan Supreme Court in Driver held that a plaintiff cannot commence an action that tolls the statute of limitations against a particular defendant until the plaintiff complies with the notice-waiting-period requirements of MCL 600.2912b.  Nothing [in subsequent Supreme Court precedent] altered [the] holding. . . .  [T]he focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b.  Therefore, but for Tyra, we would conclude that the trial court erred when it relied on Zwiers to determine that it could amend the plaintiff’s complaint under MCL 600.2301.  After the Michigan Supreme Court’s decision in Driver reached the opposite result on this point of law, this Court’s holding in Zwiers is no longer controlling law.”

The Court also notes that the shorter 154-day notice period is implicated only if the healthcare provider specifically indicates its intent not to settle; it does not apply if the healthcare provider defendant merely indicates or acknowledges the notice.

The takeaway from this is significant.  The opinion is published.  The convening of a conflict panel is not unanimously agreed with (Owens concurs in the result (because it followed precedent), but does not believe a conflict panel is necessary.  Judge Kelly concurs in the result only, and then also in the necessity of a conflict panel.  Thus, the case is likely to get additional treatment.  If a conflict panel is not convened, there will likely be an application filed in the Supreme Court by the defendants.

The issue affects the timeliness of medical malpractice claims and the necessity of plaintiffs to strictly comply with the notice periods and filing deadlines of complaints.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

Supreme Court Issues Peremptory Order Reversing Court of Appeals Opinion Admitting Expert Opinion Without Supporting Literature in Medical Malpractice Case

This peremptory order issued by the Michigan Supreme Court on September 25, 2013, reverses the Court of Appeals opinion in Tondreau ex rel Estate of Peetz v. Sachinders S. Hans, M.D., P.C.coa.opn.

In this medical malpractice case plaintiff alleged malpractice against the defendants and claimed a procedure “a carotid endarterectomy” was the cause of “chronic subdural hematoma” suffered by the decedent.   Decedent’s estate filed suit and sought to admit testimony of two expert witnesses under Michigan Rule of Evidence 702.  The experts testified that the procedure performed by the defendants caused the injury that lead to decedent’ s death.

Defendants objected to the admission of this on the basis that the expert opinion testimony as to this theory of injury was nowhere supported by expert literature on the subject or any other supporting information among the medical community – there were no studies or literature that directly stated this could happen as a result of the procedure performed.  The Court of Appeals ruled the absence of a specific study did not render the expert’s opinion lacking in reliability and therefore inadmissible.  See Slip Op. at 5.

The Supreme Court reversed, ordering the case back to the trial court to sustain the objection and exclude the supporting evidence.  In its order, the Court clearly states “[w]hile peer-reviewed, published literature is not always necessary to meet the requirements of [Michigan Rule of Evidence] 702, in this case the lack of supporting literature, combined with the lack of any other form of support for these opinions render the opinions unreliable and inadmissible under MRE 702.  Edry v. Adelman, 486 Mich. 634, 641 (2010).”

This order provides guidance for practitioners considering the reliability and admissibility of expert testimony in future cases.  A final Supreme Court disposition of an application and that contains a concise statement of the applicable facts and reasons for the decision is binding precedent.  Mich Const 1963, Art 6, § 6; See also Dykes v. William Beaumont Hosp., 246 Mich. App. 471, 483-484 (2001), citing People v. Crall, 444 Mich. 463, 464, n. 8 (1993).  Reiterated more recently in DeFrain v. State Farm Mut. Auto Ins. Co., 491 Mich. 359 (2012).  This order certainly meets that requirement.  Read it here: Tondreau v. Sachinder S. Hans, M.D., P.C.Order.09.25.2013.

For more information about this and other similar cases contact Carson J. Tucker, Chair of the Appeals and Legal Research Group at Lacey & Jones, LLP, a Birmingham law firm serving clients since 1912.  Mr. Tucker can be reached at (248) 283-0763.

Continuing its tradition of providing highly specialized and unique legal services to an exclusive clientele, Lacey & Jones, LLP, works with insurance companies and businesses to develop comprehensive insurance coverage strategies for all lines of coverage.  From the simplest review (second look) of an in-house counsel’s coverage determination to complete coverage analysis involving high-exposure, multi-party, multi-jurisdiction, multi-claim events, the firm is capable of assisting its clients in making valuable choices and advising them on the proper course of action.  The firm’s coverage counsel and litigation team is also capable of pursuing coverage determinations and indemnity or subrogation in courts by filing declaratory judgment actions or indemnity and subrogation actions, respectively.

Our attorneys have successfully navigated coverage cases in state and federal courts, involving multiple insurers, multiple claimants and multiple forums to arrive at favorable resolutions for our clients in eight figure exposure cases, including, but not limited to, environmental liability claims, construction claims, professional liability claims, catastrophic personal injury claims, and product liability claims.  Our coverage lawyers speak the language of insurers and understand the intricacies of policy coverage involving multiple insurers, multiple policy forms, and multiple layers and years of coverage.

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For more information about Lacey & Jones, click on the following practice area company pages on Linked In.

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Court of Appeals Rules Medical Malpractice Suit Required to Allege Cause of Action for Improper Ambulation of Diabetic Patient Recovering from Knee Surgery As Within Realm of Professionalized Knowledge and Training

The Michigan Court of Appeals has ruled a plaintiff must pursue a cause of action sounding in medical malpractice against a hospital where plaintiff broke her leg when hospital staff were removing her to ambulate as part of her recovery from knee surgery.

In Lukas v. William Beaumont Hospital (1), Plaintiff filed a lawsuit against the hospital for damages alleging ordinary negligence against the hospital staff.  The hospital moved for summary disposition arguing plaintiff was instead to go through the notice and pre-suit procedures required to bring a claim sounding in medical malpractice because ambulation of a post-operative diabetic patient for rehabilitation from knee surgery requires specialized training and knowledge.  The trial court disagreed and allowed plaintiff’s suit to continue.

In this three-page, unpublished opinion, the Court of Appeals reversed.  The Court noted a claim sounds in medical malpractice if an alleged breach occurred within a “professional relationship” and if “the claim raises questions of judgment beyond the realm of common knowledge and experience.”  Slip Op. at 1, citing Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 422 (2004).  The Court stated the only question present in the case was whether the alleged conduct on the part of the hospital staff called for “expert medical judgment” which was “beyond the realm of common knowledge and experience.”

The Court reasoned that while at first glance it may appear to the lay person that it takes no special skill or knowledge to assist a person out of bed, it does take special expertise to appreciate that a diabetic, immediately post-operative patient of plaintiff’s age and weight could be injured if not properly supported while being assisted to her feet.

As the Court puts it:  “We very much doubt that it is within the realm of common knowledge and experience how to assist the ambulation of someone whose entire knee has just been surgically replaced.  The evidence was that plaintiff had a pain pump and immobilizer, and professional knowledge was required to assist the ambulation of a patient, such as plaintiff, in a way that would avoid aggravating her injury. The evidence further indicated that prior to ambulating or transferring a patient such as plaintiff, the patient must undergo a neurovascular assessment, and her pain, heart rate, and mobility must be checked. A registered nurse and a physical therapist both explained that ambulating a patient such as plaintiff required specialized medical knowledge, training, and judgment, including being able to recognize cues and utilize proper techniques that nurses are
expected to possess. Ordinary laypersons, however, would not be expected to possess such expertise.”  Slip Op. at 2.

Essentially, the Court reasoned that because the way in which one should assist a patient such as plaintiff is not within common knowledge or experience, it was not possible for a jury, unassisted my medical expertise, to truly evaluate whether defendant’s employees should have acted differently, let alone what it is they should have done. Consequently, “the reasonableness of the action can be evaluated by a jury only after having been presented the standards of care pertaining to the medical issue before the jury explained by experts.”  Thus, the case presented fundamentally as a claim involving a medical misjudgment. This was therefore a medical malpractice action.

As such, the Court concluded, plaintiff’s claim was one sounding in medical malpractice.  She was required, therefore, to provide a notice of an intent to sue before filing her complaint, and she was required to file an affidavit of merit with her complaint.  Id., citing Lockwood v. Mobile Med. Response Inc., 293 Mich. App. 17, 27-28 (2011).  The plaintiff’s lawsuit was dismissed because the filing of a complaint without the procedural prerequisites does not toll the statute of limitations.  Liggons v. Crittenton Hosp., 490 Mich. 61, 73 (2011).  The untolled two-year statute of limitations period for a medical malpractice action expired before defendant had filed its second motion for summary disposition.

Therefore, plaintiff’s lawsuit was no longer viable.

This case provides helpful guidance to medical service providers and practitioners in assessing the  parameters of medical malpractice actions and what types of treatment and care fall within the realm of those specialized medical services that are not within the realm of common knowledge and experience such that plaintiff’s are expected to clear the higher burdens placed upon them to proceed in a suit alleging medical malpractice.

Supreme Court Holds Late-Filed Notice of Intent Cannot Toll Medical Malpractice Statute of Limitations and Reverses Court of Appeals

On April 27, 2013, the Supreme Court issued an order reversing the Court of Appeals decision in LaJoice v. Northern Michigan Hospitals, Inc., et al (COA Opinion), in which the Court of Appeals held that a late-filed notice of intent to file suit (filed after the statute of limitations expired) could not toll the period of limitations to file a perfected medical malpractice complaint.  The notice of intent did not suspend the wrongful death savings period within which to file a timely malpractice complaint.  Read the Court’s Order here:  LaJoice v. Northern Michigan Hospitals, Inc. et al (Supreme Court Order).

Justice Cavanagh dissented and would have affirmed the Court of Appeals ruling.

Michigan Supreme Court Grant Oral Argument to Consider Causation and Speculative Injury Claim in Medical Malpractice Action

The Supreme Court has granted oral argument on an application in a medical malpractice case to consider the Court of Appeals’ majority ruling that speculative injuries can be the basis for damages in a medical malpractice case.  The Court specifically requests the litigants to brief and address whether the Court of Appeals’ majority ruling is contrary to the rule enunciated by the Court in Henry v. Dow Chemical, 473 Mich 63 (2005), which held that residents could not recover for damages associated with environmental contamination, where future injuries from such contamination were, at best, speculative.

The Court also requests the parties to consider whether the Court of Appeals’ majority properly applied Sutter v. Biggs, 377 Mich. 80 (1966), which addressed the foreseeability of damages in a medical malpractice action.  In the latter case, the Court held that a doctor’s mistaken and negligent removal of one of the plaintiff’s fallopian tubes when she was 10 during an appendectomy could not serve as the basis for a claim where the plaintiff’s other fallopian tube was intentionally removed in a surgery when she was 19.  The plaintiff’s cause of action against the first doctor was based on the theory that had he not negligently performed the appendectomy, at least one of her fallopian tubes would have been present after the second sugery was performed years later.  The Court of Appeals’ majority here dismisses the view that in cases where there are dual functioning organs, a doctor’s removal of one does not give rise to a cause of action because of the potential for greater future harm due to the additional risk associated with having only one functional organ.

The Court of Appeals majority and dissent agreed that insufficient expert testimony was provided to establish the standard of care against the defendant hospital concerning the standard applicable to delivery of radiology results.

The Supreme Court appears to be only concerned here with the issues concerning speculative damages and causation.

The Court has invited amicus briefing from the Michigan Association of Justice and Michigan Defense Trial Counsel.

Here is the Supreme Court’s Order:  Supreme Court Order OA on App in Huddleston

Read the COA’s Opinion here: Huddleston