Case dismissed because patient didn't explain symptoms of thrombosis to the doctor
Patients who attempt to sue for medical malpractice must file a Notice of Intent--even before they have commenced the case--explaining what the doctor did wrong and how it caused the patient injury or death. In Miller v. Malik, the patient's widow sued after her husband died from a pulmonary embolism. She claimed that his doctors failed to prevent or diagnose his DVT, and particularly criticized the failure to order appropriate compression of his legs after surgery. Her case was dismissed because a majority of the three-judge panel determined that her Notice of Intent did not adequately explain to the Defendant why they might be sued. In particular, two activist judges, Whitbeck and Kelly criticized her failure to identify the symptoms of deep vein thrombosis or to explain in detail how treatment would have prevented the patient's death.
To his credit, Judge O'Connell dissented, pointing out that Defendant Malik recognized that the decedent was at risk for DVT and ordered TED hose and pheumatic compression devices. The TED hose initially provided were too small, causing tissue breakdown, and no further action was taken to provide either treatment modality. Despite the "classic symptoms" displayed by the decedent, no one adequately addressed, prevented, diagnosed or treated him. As O'Connell put it, "no real guess work" is necessary to understand Plaintiff's claim, and the court was wrong in holding her to such a high standard of documentation pre-suit. Judge O'Connell also criticized the majority's decision holding that the dismissal should be "with prejudice"--thus precluding the widow from trying again with a more detailed Notice of Intent. Finally, Judge O'Connell noted that the Notice of Intent was, in fact, fairly detailed and that reading it in its entirety would have adequately fulfilled the intended function of providing the defendants with notice of the widow's grievance.
Sadly, the activists appointed to the Michigan bench in recent years have created a system where medically-ignorant victims of malpractice must hurdle an obstacle course of science and semantics, even before they are allowed to engage in discovery to investigate their claim. And justice has taken a back-seat to political influence.